Sells; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs and

[2008] AATA 215

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 215

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/402

GENERAL ADMINISTRATIVE DIVISION		)
Re		SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Applicant

And KYLIE SELLS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date19 March 2008

PlaceSydney

Decision The tribunal affirms the decision under review.

...................[Sgd]...................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – eligibility – major depressive disorder – neck and back pain – assessment of impairments – criteria for assessment – Impairment Tables – disagreement between assessments of psychiatrist and job capacity assessor – incapacity of at least 20 points – decision under review affirmed.

Social Security Act 1991 s 94, Schedule 1B

Social Security (Administration) Act 1999 s 42, Schedule 2

Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130

REASONS FOR DECISION

19 March 2008 Ms Robin Hunt, Senior Member

introduction

1.      Ms Kylie Sells, the respondent, has major depressive disorder and other health problems. The Social Security Appeals Tribunal (SSAT) found Ms Sells satisfied the requirements for receipt of disability support pension from the date of her claim made on 25 August 2005. The Secretary applied for review of the decision of the SSAT.

issue

2.      For the review, I must decide whether Ms Sells meets all the requirements qualifying her for the disability support pension.

decision

3. I have decided that Ms Sells does satisfy the requirements of subsection 94(1) paragraphs (a), (b) and (c) of the Social Security Act 1991 (the Act), and is qualified to receive the disability support pension. Ms Sells did so qualify at the time of her claim. It follows that she is entitled to receive this pension from the date of her claim, 25 August 2005. I have accordingly affirmed the decision of the SSAT.

analysis and findings

4.      When Ms Sells claimed the pension in August 2005 she detailed several conditions that she was suffering at the time. These included depression, anxiety, back and neck pain, headaches, foot pain and insomnia. She ticked a box indicating she was receiving treatment but did not say when it commenced. She wrote that she usually saw Dr Dominis and attached to the claim form a treating doctor’s report which she stated was completed by Dr Daya. She thought she would be unable to work or participate in any rehabilitation or training program for more than 2 years due to lack of motivation, poor concentration and constant pain but thought she needed career advice and work preparation.

5.      The treating doctor’s report was completed by a person whom I took as Dr Daya, based on Ms Sells’ claim form information. Dr Daya set out a history of depression, anxiety, back and neck pain, headaches, foot pain and insomnia. Dr Daya mentioned current treatments as ‘efexor’ and ‘zoloft’ and proposed treatment by a psychiatrist but did not mention any likely date. Dr Daya ticked a box to indicate that Ms Sells was ‘very compliant’ with recommended treatment. As to impact on ability to function, Dr Daya said Ms Sells was ‘unmotivated, sleeping 18 hrs a day, poor concentration, back pain, neck pain’.

6.      Dr E Wassenaar, a Health Services Australia (HSA) medical adviser, completed an assessment report about Ms Sells on 14 September 2005. He reported anxiety and depression of long standing and commented that Ms Sells might benefit from more definitive treatment. He noted Ms Sells’ ability to function was affected by her poor motivation and fatigue. He described her work related impairment under table 6 as ‘generally functioning with some difficulty’ and did not assign a rating. Dr Wassenaar also assessed Ms Sells under table 5 for her back and neck pain and assigned 5 points under table 5.1 and 5 points under table 5.2. Overall, he rated Ms Sells’ impairment at 10 points and indicated he did not disagree with her treating doctor. Dr Wassenaar referred to some other health problems but gave no further ratings. As well, he noted that anxiety and depression were significant barriers to Ms Sells’ participating in economic and social activities and that she was unable to do some types of work involving physical exertion. He thought Ms Sells was fit for part time low stress work. He further indicated she had minimal interest in pursuing intervention which was at least partly due to her depression. In his assessment, Dr Wassenaar mentioned that Ms Sells had seen a psychiatrist, Dr Chandra, about 5 years ago on a few occasions for medication and was currently taking an anti-depressant, efexor.

7.      Largely based on Dr Wassenaar’s findings, the original decision maker and the authorised review officer refused Ms Sells the disability support pension. However, the SSAT took into account the long standing nature of her depressive illness. The tribunal noted a number of earlier reports of doctors, both treating and HSA, which mentioned Ms Sells’ depression and anxiety. The tribunal found she had suffered depression since early childhood and that her treating doctor thought it was unlikely to improve in the next two years. The tribunal also noted that another HSA assessor, Dr Gow, in 2001 thought her condition was chronic but temporary because it might improve with treatment. Dr Gow also held the view she was temporarily unfit for work on 4 January 2001. Dr Pereira thought her condition improved, in October 2002, but regarded it as permanent and rated it at 10 impairment points. Dr Pereira thought Ms Sells could perform low stress employment.  After taking all this background into account the SSAT decided Ms Sells did qualify for the allowance she sought.

8.      Since the SSAT made its decision, the respondent organised for her to see a psychiatrist, Dr Robert Kaplan, and also obtained a job capacity assessment. Dr Kaplan saw Ms Sells on 5 February 2007 and took a history of events since childhood. Among other things, the doctor recorded previous work experience and previous personal relationships. He referred to her two children, noting one child still lived with her. Dr Kaplan noted that Ms Sells had seen a psychologist, Patsy Grew, in 2002, for victims’ compensation counselling, and a psychiatrist, Dr Naveen Chandra, as well. He reported she had been taking zoloft which had some adverse effects and that she changed to efexor.

9.      Dr Kaplan observed that Ms Sells had anorexic and obsessional tendencies. She was obsessed with keeping her body weight down and was a compulsive exerciser and compulsive housecleaner. Although she wanted to get better, she was reluctant to consider treatment as she had poor relationships with doctors and counsellors. However, she was happy to take medication. Ms Sells gave some oral evidence at the tribunal hearing that she had tried treatment in the past that had not worked and that this was the reason she was reluctant to try some treatments.

10.     Dr Kaplan provided three reports. The later ones were in response to questions asked by the respondent arising out of his first report, dated 5 February 2007. Dr Kaplan gave his opinion that Ms Sells suffered “major depressive disorder, social phobia with secondary agoraphobia, cannabis use/dependence and personality disorder, mixed features (dependent, avoidant, possible borderline)”. The doctor stated in his report of 22 March 2007, that the prognosis was poor and that Ms Sells would be unfit for work “in any capacity on psychiatric grounds for the next two years”. He further stated:

·     The condition is permanent and stabilised. After this statement, the doctor repeated his description of the disorder as above.

·     The impairment rating he gave was 20 points under table 6. He clarified this in his short response of 4 June 2007 after first rating Ms Sells under the Comcare tables.

·     As at the date of her application, 25 August 2005, “Ms Sells’ diagnoses were evident and she was permanently impaired by that date” according to the doctor.  Dr Kaplan made this statement on 4 June 2007 after correcting an earlier typographical error as to another date in 2005, October 2005.

·     Originally, on 5 February 2007, Dr Kaplan said Ms Sells was unable to work on psychiatric grounds as at 25 October 2006 and the succeeding 13 weeks but he later corrected this date to 25 October 2005 and then to 25 August 2005.

11.     Dr Kaplan also expressed the view that Ms Sells would require a minimum of two years regular consultations, with follow up for at least three years. He mentioned that Ms Sells was only prepared to get medication from a GP, that she self-administers her medication. As she freely admitted to being poorly compliant with medical advice, this led him to the conclusion that she was not going to receive appropriate treatment. Under the sub-heading ‘job capacity assessment report’, Dr Kaplan observed that, while Ms Sells expressed interest in attending programs, this behaviour was consistent with her personality and would be overridden in practice by her ambivalence and non-compliance. When asked to comment on the job capacity assessment report of 29 November 2006, where the assessor reported no reduction in work capacity, Dr Kaplan stated that he disagreed as he found Ms Sells’ condition was worse than stated and was likely to deteriorate in the future. He added that, while there may be some variation in depression and anxiety, the features of personality disorder and cannabis abuse would remain constant and dominate the presentation.

12.     The job capacity assessment report of 29 November 2006 to which Dr Kaplan referred was undertaken by a psychologist and identified no medical conditions (at page 2 of 6) and addressed “barriers”. Ms Lee, who attended the tribunal hearing and gave oral evidence, undertook a further job capacity assessment and furnished a report dated 11 July 2007. Ms Lee took into account Dr Kaplan’s reports and the earlier job capacity assessment of 2006. She also noted that Ms Sells had attended a personal support program for 2 years in the past and had begun another program approximately one month earlier. Ms Lee addressed a number of matters and recommended various “interventions” for Ms Sells.

13.     Ms Lee found that Ms Sells had permanent conditions of intervertebral disc disorder, spondylosis and depression as well as temporary conditions of lower limb deficiencies and drug dependence. Ms Lee further found that the permanent conditions had not been fully diagnosed, treated and stabilised. She gave a nil rating for all of the conditions. Ms Lee set out the recommended rating under table 5.2 for spinal function (thoraco-lumbar-sacral spine) as nil and the recommended rating under table 5.1 for spinal function (cervical spine) as nil. She also rated the psychiatric impairment under table 6 as nil. She considered this last condition was not fully diagnosed, treated and stabilised.

14.     Ms Lee gave oral evidence that she could not rate any of Ms Sells’ conditions as she assessed function and Ms Sells performed quite well in this regard. She noted that Ms Sells was a compulsive house cleaner and could walk for approximately 30 minutes and could ride a bike some distance. As to the psychiatric assessment, Ms Lee awarded nil impairment points as she considered the disorder was likely to last more than 2 years but was “not optimally treated and stabilised”. 

15.     Ms Lee further concluded that Ms Sells could work 30+ hours per week although Dr Kaplan had expressed the opinion that she could not work at all because of the psychiatric disorder. Ms Lee again drew attention in oral evidence to Ms Sells’ ability to function well physically.

16.     In her comprehensive assessment summary attached to the report, Ms Lee recorded that Dr Wassenaar indicated the psychiatric conditions of depression and anxiety were temporary at the time of the original claim. She found that these conditions had deteriorated since. Her further findings were that the conditions were permanent due to the various medical reports from 2000 up to those of Dr Kaplan in 2007. While she considered these conditions would persist over the next 24 months, she again wrote that she assigned no rating under table 6 because she considered they were “not optimally treated and stabilised”.

17.     Ms Lee gave oral evidence that she considered the psychiatric disorder fell short of requirements for rating as Dr Kaplan’s reports indicated the disorder had not been fully treated and stabilised. She referred in oral evidence and in her report to Dr Kaplan’s saying it was difficult to be optimistic about the prognosis because Ms Sells was poorly compliant and was self-medicating with anti-depressants from her GP. She further pointed to the passage where Dr Kaplan said Ms Sells “requires psychiatric management that included supervision of medication by a psychiatrist and long-term psychotherapy, requiring a minimum of two years regular consultations, with follow up for at least three years…”. These were pointers to the condition not being fully treated and stabilised in her opinion.

18.     Dr Kaplan did not give evidence at the tribunal hearing and I have relied on his written reports. As to Dr Kaplan’s remarks and findings, I note that the doctor firmly stated more than once that Ms Sells’ condition was permanent. He went into her tragic background and made his findings as a psychiatrist. He made his findings in accordance with the commonly used Diagnostic and Statistical Manual of Mental Disorders, fourth edition, of the American Psychiatric Association. Although Dr Kaplan made some observations about Ms Sells’ attitude to treatment, he noted on page 6 of his first report that she distrusted all officials and would be difficult to engage in long-term treatment.

19.     Dr Kaplan did not initially deal with some of the specific requests of the respondent as is shown in correspondence to the Senior Medical Officer of Health for Industry. While he did say the condition was permanent, he did not go into the language used in the Introduction to the Impairment Tables as to whether it was “fully treated and stabilised”. He also did not specifically say whether treatment was likely to improve function.  However, in the report of 22 March 2007, after being asked to comment on these matters, Dr Kaplan wrote that Ms Sells was unable to work in her present state and, on the balance of probabilities, was unable to work on psychiatric grounds from 25 October 2006 (later corrected to 25 August 2005) and the following 13 weeks. He added below that she would be unfit for work in any capacity on psychiatric grounds for the next two years. He further stated the condition was permanent and stabilised.

20.     The Introduction to the Impairment Tables governs the way the tables are to be applied. Paragraphs 4, 5 and 6 of the Introduction explain how the extent of treatment and stability of an applicant’s condition affect the application of the Impairment Tables. Those paragraphs read, in part:

… rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·           what treatment or rehabilitation has occurred;

·           whether treatment is still continuing or is planned in the near future;

·           whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·           treatment that is feasible and accessible ie, available locally at a reasonable cost;

·           where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

….

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the medical officer should:

·           evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and

·           indicate why this treatment is reasonable; and

·           note the reasons why the person has chosen not to have treatment.

21.     It is because of the emphasis in the guidelines on adequate treatment that Ms Lee decided that Ms Sells’ psychiatric condition was not rateable although she accepted her condition was permanent and was aware that Dr Kaplan held the opinion that it was permanent and stabilised. In Ms Lee’s view, Dr Kaplan’s comments about Ms Sells’ self medicating and the like and her being unlikely to engage in long-term treatment, meant that her condition was not fully diagnosed, treated and stabilised. Ms Lee thought that her treatment was not “optimal” and so left her condition unable to be rated.

22.     However, the guidelines go on to say that, in order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider other matters including what treatment or rehabilitation has occurred and whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years. Ms Lee considered the need for supervision of medication by a psychiatrist for a minimum of two years followed up for at least three years as evidence that the disorder had not been fully treated and stabilised. However, I consider the contrary conclusion follows. If this treatment is needed for a minimum of two years, it is evidence that the disorder would not be fully stabilised within the period of two years even with the most appropriate treatment. In my view, Dr Kaplan has taken these matters into account when reaching the conclusion that Ms Sells’ condition is permanent and stabilised.

23.     While Dr Kaplan’s language does not conform precisely to that used in the Introduction to the Impairment Tables, he has evaluated the situation. I think that he has made his opinion clear that Ms Sells’ treatment has been reasonable and that her condition is diagnosed, treated and stabilised. He recommends further treatment but acknowledges that Ms Sells’ condition makes it unlikely that she will submit to ideal supervision and long-term psychotherapy. There is no doubt that Ms Sells’ condition is diagnosed and has been for many years, as the SSAT found. Dr Gow in 2001 said her depressive illness was already chronic and detailed “tragic” and “horrific” events in her background. Several other doctors have diagnosed and treated her for the same condition over the years. In view of this history, Dr Kaplan has formed his expert opinion that no improvement is likely in the next two years. In addition, he sets out that the best treatment would require at least two years of supervision by a specialist with follow up for another three years. This period of time would still bring Ms Sells beyond the two year requirement for establishing the permanence of her condition.

24.     Ms Sells is not entirely at fault in declining specialist treatment. Although it would be preferable for Ms Sells to see a psychiatrist for regular treatment, Dr Wassenaar observed in 2005 that anxiety and depression were significant barriers to Ms Sells’ participating in economic and social activities and that she had minimal interest in pursuing intervention “at least partly due to her depression”.  This is a similar conclusion to that which Dr Kaplan reaches in his reports in 2007. Dr Kaplan acknowledges that Ms Sells’ disorder makes it unlikely she will participate in further treatment by a psychiatrist. These opinions lead me to consider they indicate a prognosis of the kind set out in paragraph 5 of the guidelines, that “A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”

25.     As to her compliance with prescribed medication, I note that Dr Daya in 2005 reported that Ms Sells was very compliant with treatment. This was after she had seen the psychiatrist, Dr Chandra, and followed the medication he prescribed or recommended. Ms Sells gave oral evidence that she had tried other treatments but none of them worked. On balance, in view of the opinions of Dr Wassenaar and Dr Kaplan that Ms Sells will not undergo further psychiatric management because of her disorder, I agree with Dr Kaplan that her condition is permanent and stabilised. I prefer the opinion of Dr Kaplan to that of Ms Lee who is qualified to assess work capacity according to function and does not have any psychiatric qualifications.

26.     In accordance with the judgment of the Full Court of the Federal Court in Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130, approving the judgment at first instance, my findings pursuant to Schedule 1B, which requires material findings of fact before reaching an assessment under the tables, are as follows. In all the circumstances, I think that Ms Sells’ treatment for her psychiatric condition has been reasonable. Its chronicity indicates it is diagnosed, treated and stabilised as far as is possible. On balance, I find that Ms Sells has a diagnosed condition of major depressive illness, that this is long-standing and that she had been diagnosed with the condition, which was described as depression and anxiety, at the time of her application on 25 August 2005. Her treatment to date has been adequate, even if not “optimal”, the term favoured in Ms Lee’s report, which is not a term used in table 6 or the Introduction to the Impairment Tables.

27.     I find that, on balance, although suggested future treatment might bring about some improvement, future treatment is not likely to produce any significant improvement in Ms Sells’ condition for the reasons I have explained above. I am unable to say that any proposed future treatment has a high success rate as the evidence before me suggests only that supervision by a psychiatrist is desirable but would need to continue for at least two years with follow up for a further period. I therefore find that Ms Sells’ psychiatric disorder is rateable under table 6 and accept Dr Kaplan’s finding that she attracts 20 impairment points for this disorder.

28.     While I note that Dr Wassenaar was of the opinion that Ms Sells should be assessed as having 10 impairment points under table 5 for her neck and back problems, I have not explored this further. I note that Ms Lee disagrees with this assessment but it is not necessary for me to decide which opinion is correct as I have already found Ms Sells has the necessary minimum 20 impairment points under table 6.

29.     As to Ms Sells’ work capacity, I again prefer the assessment of Dr Kaplan as a psychiatrist. While Ms Lee has assessed work capacity of 30 hours plus, this conclusion is again based on Ms Sells’ condition not having been “fully diagnosed, treated and stabilised” as she sets out on page 2 of her report. Ms Lee expected “(F)urther improvement in functioning … within the next 24 months with optimal psychological support”, as she stated in her assessment summary. This was despite acknowledging former treatment with zoloft and efexor for four years, treatment by a psychiatrist, Dr Chandra, in the past and 6 sessions of psychotherapy provided by the victims’ compensation department 6 years ago.  While Ms Lee’s task is to make a job capacity assessment, this is based on medical opinions about the relevant condition and Ms Lee has misunderstood Dr Kaplan’s opinion as to the reasons why Ms Sells cannot work and that no better result can be achieved in the next two years.

30.     Dr Kaplan has stated that his assessments were the same as at 25 August 2005 and the following 13 weeks. Therefore, at the time of application, I find that Ms Sells’ psychiatric condition attracted 20 points under table 6. She was also unable to work for 30 hours or more contrary to the opinion of Ms Lee. The doctor considered she was unable to work for the next two years or at all at the date of her application. Therefore, in accordance with Dr Kaplan’s opinion, I find Ms Sells was unable to work for 30 hours or more for the next two years or at all at the date of her application.

conclusion

31. The Secretary concedes that Ms Sells satisfies the terms of subsection 94(1) as to paragraph (a) of the Act, in that she had physical and psychiatric impairments at the date of her claim. Her claim was rejected on the basis of impairment rating and work capacity. As to subsection 94(1) paragraph (b), I find that Ms Sells is assessed as having 20 impairment points under table 6 in accordance with Dr Kaplan’s opinion. As to subsection 94(1) paragraph (c), I find that Ms Sells has, and had a continuing inability to work on 25 August 2005 in accordance with Dr Kaplan’s opinion.

decision

32.     The tribunal affirms the decision under review.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Robin Hunt, Senior Member

Signed: ........................[Sgd]..............................
  Jennifer Wong, Associate

Date of Hearing                   7 March 2008
Date of Decision                   19 March 2008

Solicitor for the Applicant                           Ms Pankaj Sharma, Centrelink Legal Services Branch

Solicitor for the Respondent  Self-represented