Slater; Secretary, Department of Social Services and (Social services second review)

Slater; Secretary, Department of Social Services and (Social services second review) [2018] AATA 3964 (22 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/1862
Re:Secretary, Department of Social Services
APPLICANT

AndRobert Slater
RESPONDENT

DECISION
Tribunal:Deputy President P Britten-Jones
Date:22 October 2018
Place:Adelaide

The decision under review is set aside and in substitution it is decided that as at the qualification period, Mr Slater was not qualified for disability support pension.
................................[SGD]........................................
Deputy President P Britten-Jones
CATCHWORDS
SOCIAL SECURITY — Disability Support Pension — Shoulder condition and adjustment disorder — Whether conditions fully treated and stabilised — Whether respondent had undertaken reasonable treatment — Whether there was a compelling reason for respondent to not undertake reasonable treatment — Apprehension of increased side effects — Decision under review set aside.
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, Sch 2, Pt 2, cl 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, s 6
CASES
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48
REASONS FOR DECISION
22 October 2018
Deputy President P Britten-Jones

On 10 June 2016, the respondent Mr Slater applied for disability support pension (DSP). That claim was rejected both at first instance and upon review by a Centrelink authorised review officer (ARO).
On 8 November 2016, Mr Slater applied to the Social Services and Child Support Division of this Tribunal (AAT1) for a review of the ARO’s decision. On 22 February 2017, the AAT1 set aside the ARO’s decision and in substitution, remitted the matter back to Centrelink with a direction that Mr Slater satisfied s 94(1)(a), (b) and (c) of the Social Security Act 1991 (the Act).
On 31 March 2017, the Secretary applied to the General Division of this Tribunal for a review of the AAT1 decision.
FACTUAL BACKGROUND
At the time of his application for DSP, Mr Slater suffered from torn tendons in both shoulders, adjustment disorder with depressed mood and irritable bowel syndrome. However, it was agreed between the parties and I am satisfied that the only conditions relevant to this application are Mr Slater’s shoulder condition and his adjustment disorder. As such, I will not consider Mr Slater’s irritable bowel syndrome any further.
LEGISLATION AND ISSUES
It is not in dispute between the parties that Mr Slater’s qualification for DSP must be assessed based on his medical conditions at the date of his claim or within 13 weeks of that date (the qualification period).[1]
[1] Social Security (Administration) Act 1999, Sch 2, Pt 2, cl 4.
Qualification for DSP is governed by s 94 of the Act. The issues before this Tribunal are therefore whether at the relevant time Mr Slater had:
(a)a physical, intellectual or psychiatric impairment;
(b)an impairment which attracted a rating of 20 points or more under the Impairment Tables; and
(c)a continuing inability to work within the meaning of s 94 of the Act.
DID MR SLATER HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
There is no dispute between the parties and I am satisfied that as at the qualification period, Mr Slater had a physical impairment (the shoulder condition) and a psychiatric impairment (the adjustment disorder).
AS AT THE QUALIFICATION PERIOD, DID MR SLATER HAVE AN IMPAIRMENT ATTRACTING 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
The requirements
Section 94(1)(b) of the Act requires that a person have 20 points or more under the Impairment Tables. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) contains the Impairment Tables as well as the rules for applying them.
Section 6 of the Determination outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
·the condition causing the impairment is permanent; and
·the impairment resulting from the permanent condition is more likely than not to persist for more than two years.
Further, for a condition to be considered permanent under the Determination:
·the condition must be fully diagnosed by an appropriately qualified medical practitioner;
·the condition must be fully treated and fully stabilised; and
·the condition must be more likely than not to persist for more than two years.
Section 6(5) of the Determination also provides that, in determining whether a condition is fully diagnosed and fully treated, the following is to be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or planned in the next two years.
Section 6(6) provides that a condition is fully stabilised if:
·the person has undertaken reasonable treatment for the condition, and it is considered that any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, but such treatment is not expected to result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
·the person has not undertaken reasonable treatment, and there is a medical or other compelling reason for the person not to undertake such treatment.
As at the qualification period, were Mr Slater’s conditions fully diagnosed, treated and stabilised?
The shoulder condition
There is no dispute between the parties and I am satisfied that Mr Slater’s shoulder condition was fully diagnosed, treated and stabilised. In reaching this conclusion, I note the evidence demonstrates the shoulder condition’s diagnosis dates back many years and the extensive treatment history relating to the condition.
As to the impairment rating that should be assigned to the shoulder condition under the Impairment Tables, I consider that the appropriate rating is 10 points, which is consistent with the decisions of the ARO and the AAT1 and the positions of both parties before the Tribunal. In particular, I find that Mr Slater had difficulty picking up light, bulky objects, holding and using pens, doing up buttons or tying shoelaces and unscrewing lids on bottles. As this means he had difficulty with four of the seven tasks under moderate impairment in Table 2, I find that Mr Slater’s shoulder condition attracts an impairment rating of 10 points.
For abundant clarity, I note that it was not suggested that Mr Slater’s shoulder condition attracted a rating of 20 points under Table 2, and I am satisfied that Mr Slater’s shoulder condition did not reach such a severe level of functional impact.
The adjustment disorder
One of the main disputes between the parties is whether or not Mr Slater’s adjustment disorder was fully diagnosed, treated and stabilised and if so, what the appropriate impairment rating should be.
Mr Slater submitted that the adjustment disorder was fully diagnosed, treated and stabilised and attracted an impairment rating of 10 points under Table 5. The Secretary submitted that the adjustment disorder was not fully diagnosed, treated or stabilised and therefore no impairment rating should be assigned.
The evidence before the Tribunal is that the adjustment disorder was diagnosed and reported by Dr Begg and Dr Blakemore, who are both psychiatrists. Mr Slater had also sought treatment from Ms Belperio, psychologist. As there was significant corroborating evidence of Mr Slater’s adjustment disorder and as I am satisfied he was diagnosed by appropriately qualified medical practitioners, I consider that Mr Slater’s adjustment disorder was fully diagnosed.
As to the treatment for his adjustment disorder, Mr Slater gave evidence that he was prescribed Lexapro in 2010, at first 5mg but which was increased to 10mg and then to 20mg.
Mr Slater gave evidence that he saw Ms Belperio, psychologist, about once every 4-6 weeks for a number of years. Mr Slater’s evidence was that Ms Belperio gave him some techniques to help him manage his anger, such as going out for a walk, listening to music and cutting down his alcohol consumption because he was at the time drinking 4-6 cans of beer a day. His evidence was that he tried to cut down on his drinking, although he conceded that he still drank “more than [he] should have”. To assist with his depressed mood, Ms Belperio suggested that Mr Slater relax by sitting on a beach and enjoying the sunshine. When Ms Belperio first started treating Mr Slater, Mr Slater complained that he was feeling “like a zombie” due to the Endone and Stillnox patches that he was prescribed by his previous General Practitioner (GP). Ms Belperio therefore referred Mr Slater to a different GP. As Mr Slater also complained of sleep disturbances, Ms Belperio recommended that he ask his GP for sleeping tablets, which he did, although he said that his GP only gave him a script for one repeat of the sleeping tablets as his GP did not want Mr Slater to become dependent on them.
The Secretary submitted that Mr Slater’s adjustment disorder was not fully treated and stabilised because Mr Slater had not undertaken a number of reasonable treatment options. The Secretary relied on the opinion of Dr Ewer, psychiatrist, who was of the view that:
it would have been appropriate to increase his dose of Lexapro. If an increased dose of Lexapro did not help then it would have been appropriate to change his antidepressant to a different antidepressant with a different mechanism of action. It would’ve been appropriate to arrange a complete blood picture, a multiple biochemical analysis and a thyroid function test to exclude physical causes of his symptoms. It would have been appropriate to have treated him with mindfulness based interventions, including mindfulness based CBT [cognitive behaviour therapy]. Another alternative would have been to treat him with CBT without mindfulness.
Dr Ewer gave oral evidence at the hearing consistent with the views expressed in his report.
In reply, Mr Slater urged the Tribunal to rely on the opinion of Dr Blakemore who in his report dated 6 March 2015 stated:
Considering the nature of [Mr Slater’s] injuries, his past work experience, his inability physically to cope with any of the work he has been accustomed to doing and in which he is interested, and the lack of any training he has had to enable him to cope with any other work, [Mr Slater] is likely to remain unemployable in the future, and to remain depressed to a greater or lesser degree as a result.
In closing submissions, Ms Riley for Mr Slater submitted that because the adjustment disorder was caused by Mr Slater’s physical limitations, notwithstanding that the applicant had not been treated with alternative available therapies, the Tribunal should find that the Mr Slater’s psychiatric condition was unlikely to improve.
However, for a condition to be considered permanent, it must be fully treated. I find that Mr Slater had not undertaken a number of reasonable treatment options such as increasing his dosage of Lexapro. Reasonable treatment is defined in s 6(7) of the Determination:
Reasonable treatment
(7)      For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)      is available at a location reasonably accessible to the person; and
(b)      is at a reasonable cost; and
(c)      can reliably be expected to result in a substantial improvement in functional capacity; and
(d)      is regularly undertaken or performed; and
(e)      has a high success rate; and
(f)       carries a low risk to the person.
Based on the evidence of Dr Ewer, I am satisfied that increasing the dosage of Lexapro was a reasonable treatment and one that could result in significant functional improvement for Mr Slater. I do not accept Mr Slater’s submission that the adjustment disorder was unlikely to improve so long as the shoulder condition remained. On the contrary, the evidence before me was that the prospects of Mr Slater’s adjustment disorder improving were, adopting Dr Ewer’s words, “very optimistic”.
My conclusion is supported by the evidence of Dr Blakemore who in his report expressed the view that Mr Slater “just may be helped further by taking this medication in a higher dosage”. It would appear that Mr Slater’s GP, Dr Hor, who wrote a report dated 11 October 2017, was also of the opinion that increasing his dosage of Lexapro was an option. However, Dr Hor ultimately concluded against increasing the dosage as Mr Slater said that at the time he was “currently feeling fine”.
Dr Hor’s conclusion should, however, be qualified by what Mr Slater conceded in cross examination: Mr Slater was asked whether he was indeed feeling fine when he consulted Dr Hor and he conceded, frankly, that that was a lie he manufactured to avoid the need to have his antidepressant dosage increased. Mr Slater further explained he did not want to increase the dosage as he was apprehensive of increased side effects. Mr Slater’s concern of increased side effects is also documented in Dr Hor’s report.
I note that s 6(6) of the Determination states that a condition may be considered fully stabilised even if a person has not undertaken reasonable treatment, so long as there is a medical or other compelling reason for the person not to undertake such treatment. The evidence does not suggest that there was a medical reason for Mr Slater not to increase his dosage of Lexapro. As for a compelling reason, the leading authority on what constitutes a compelling reason is the Full Federal Court case of Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48. In dismissing purely subjective and purely objective tests to establish a compelling reason, the Full Federal Court said at [39]:
the appropriate question for the decision maker to ask is, "Am I satisfied that there is a reason that compels, in this case, Mr Jansen ... not to undertake treatment?" Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of clause 6.
Applying this test, in my view, Mr Slater has not demonstrated a compelling reason to not increase his Lexapro dosage. That Mr Slater formerly felt “like a zombie” when he took a combination of medications does not persuade me that there was a compelling reason for him to not increase his dosage of Lexapro. Mr Slater’s dosage of 20mg a day is not considered a high dosage. Lexapro is a well-tolerated antidepressant and he was already taking Lexapro without any issues. I accept Dr Ewer’s evidence that increasing the dosage was unlikely to cause any significant side effects.
In any event, I note further that Mr Slater has not trialled other antidepressants which, on the evidence of Dr Ewer, are reasonable treatments. Mr Slater did not give any explanation as to why he had not trialled other antidepressants. I find that there was no compelling reason for him to not undertake that treatment.
In relation to CBT with or without mindfulness, there seems to be some documentation that suggests that Mr Slater had commenced CBT. In his report, Dr Hor made reference to Mr Slater having stopped “seeing a Psychologist for further CBT” and his “continuation of CBT”. However, Mr Slater’s description of the psychological therapies that he received did not match that of the description of CBT. For instance, there was no reference to Mr Slater being required to complete any CBT-related homework, which Dr Ewer said was standard practice. On this point, Mr Slater urged the Tribunal to find that the therapy he received from Ms Belperio was essentially CBT but without the label of CBT. However, on balance, the evidence is that Mr Slater had not received CBT but more likely a variant of relaxation therapy. This is another reason why Mr Slater’s adjustment disorder was not capable of attracting an impairment rating: CBT was another reasonable treatment that could result in significant functional improvement that he had not undertaken and he had no medical or other compelling reason to not undertake that treatment.
My conclusion therefore is that Mr Slater’s adjustment disorder with depressed mood is not fully treated or stabilised and accordingly it cannot be assigned an impairment rating.
AS AT THE QUALIFICATION PERIOD, DID MR SLATER HAVE A CONTINUING INABILITY TO WORK?
If Mr Slater attracted a total impairment rating of 20 points as a result of attracting 10 points each from his shoulder condition and the adjustment disorder respectively, to qualify for DSP, Mr Slater still needed to demonstrate that he had a continuing inability to work pursuant to s 94(1)(c)(i) of the Act.
At the hearing on 31 July 2018, both parties requested an opportunity to further consider the issue of whether Mr Slater satisfied s 94(1)(c)(i) of the Act. I granted the parties that opportunity and directed that they file written submissions after the adjournment of the hearing.
Both parties have since filed detailed written submissions on that point, which the Tribunal is grateful for. However, as I ultimately concluded that Mr Slater did not attract an impairment rating of 20 points or more, I consider that it is unnecessary to determine whether Mr Slater had a continuing inability to work.
DECISION
The decision under review is set aside and in substitution it is decided that as at the qualification period, Mr Slater was not qualified for disability support pension.

37. I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones

........................[SGD].........................................
Associate
Dated: 22 October 2018

Date of hearing: 31 July 2018

Advocate for the Applicant: Mr O Morris
Department of Human Services

Advocate for the Respondent: Ms M Riley
Welfare Rights Centre

[2018] AATA 3964

22 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	31 July 2018
Advocate for the Applicant:	Mr O Morris Department of Human Services
Advocate for the Respondent:	Ms M Riley Welfare Rights Centre