Tim Helm and Secretary, Department of Social Services

[2015] AATA 466

[2015] AATA 466 

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2015/0634
Re	Tim Helm
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member Bernard J McCabe
Date	30 June 2015
Place	Brisbane

The Tribunal affirms the decision under review.

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Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether conditions fully diagnosed, fully treated and fully stabilised at the relevant time –whether applicant has a continuing inability to work - program of support not completed – whether applicant has a “severe impairment” – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) s 94

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

1. Mr Tim Helm lodged a claim for the disability support pension (the “DSP”) on 16 December 2013. Centrelink, on behalf of the Secretary of the Department of Social Services, rejected the claim because it was not satisfied Mr Helm was able to satisfy what are known as the “medical criteria” in s 94(1) of the Social Security Act 1991 (Cth) (the “Act”).

2. I am not satisfied the applicant met the medical criteria at the time of his application, or within 13 weeks of that date. I explain my reasons below.

   The medical criteria

3. Section 94(1) includes three criteria that are known as the medical criteria. (The sub-section imposes other requirements, but they are not in issue in these proceedings.) The first criterion, in s 94(1)(a), requires that the applicant experience a physical, intellectual or psychiatric impairment. That criterion is met in this case: Mr Helm suffers from a bad back, problems with both knees, and a psychiatric condition that has been described as major depression with related conditions of insomnia and panic attacks, or as an adjustment disorder with mixed anxiety and depressed mood.

4. The second criterion was the focus of much of the evidence at the hearing. Section 94(1)(b) requires that the applicant be assigned at least 20 points under one or more of the impairment tables included in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the “Determination”). But there is a catch: s 6 of the Determination says impairment points cannot be allocated in respect of an impairment unless the decision-maker is satisfied the conditions leading to that impairment have been fully diagnosed by an appropriately qualified medical practitioner, and fully treated and fully stabilised. I will have more to say about this requirement below.

5. The third criterion, in s 94(1)(c), requires (at least in a case like this) that the person have a continuing inability to work. As a practical matter, that means the individual must have actively participated in a program of support for a total of 18 months over the 36 months that preceded the date of claim unless that requirement is waived or the person is otherwise excused – most obviously because the individual experiences a severe impairment. To be found to have a severe impairment, the individual must have at least 20 impairment points allocated under a single table.

6. The applicant in this case has not actively participated in a program of support for the requisite length of time. There is no evidence that he could not do so, so there is no basis for waiving or excusing him from the requirement unless it is established he has a severe impairment.   

   The mental health condition

7. Dr Petroff, a psychiatrist, diagnosed an adjustment disorder with depressed and anxious mood on 8 November 2013. Mr Helm wonders about that: he said at the hearing that Dr Petroff only saw him briefly and did not conduct what Mr Helm regarded as a proper examination. Partly in light of this doubt, Mr Wagner, the applicant’s treating psychologist, was contacted by phone during the hearing. Mr Wagner suggested the applicant’s chronic adjustment disorder had long since morphed in major depression. For present purposes, this clinical disagreement does not matter as there is a diagnosis has been made by an appropriately qualified expert.

8. Dr Petroff prescribed anti-depressant medication but the applicant discontinued the treatment after four weeks when he concluded he was not experiencing any benefit. Mr Helm’s decision must be seen in the context of a long history of trialling a wide range of selective serotonin re-uptake inhibitors (SSRI’s) – the most common form of anti-depressant – over many years without success. Mr Wagner seemed untroubled by this decision in his oral evidence: while he agreed he was not in a position to prescribe medication, he appeared to accept the cognitive behavioral therapy he was providing was an appropriate treatment for Mr Helm’s condition. He added, however, that he would ordinarily expect medication to take at least 4-6 weeks before it could be evaluated properly, and even then the prescribing doctor would often make adjustments to ensure the condition was being treated optimally. He also said SSRIs were not the only form of anti-depressant available, and it might be possible to trial other drugs.

9. The Secretary pointed to the applicant’s decision to cease the medication trial as a basis for finding his condition was not fully treated. The Secretary also pointed to remarks made by Mr Wagner in his written report dated 27 October 2010 to the effect that Mr Helm had been seeing him intermittently, rather than continuously. I was also referred to an account of a conversation between the Authorised Review Officer (“ARO”) and Mr Wagner in which Mr Wagner was recorded by the ARO to have said the applicant’s attendance at counselling was “intermittent and haphazard”: exhibit one at p 59. Mr Wagner was asked about those views when he was called to give evidence at the hearing. He said Mr Helm was generally very good about making appointments and would always call in advance and make other arrangements if he was unable to attend. He acknowledged there were gaps in the treatment of Mr Helm but insisted the applicant was “engaging in therapy to the best of his ability” at the relevant time.

10. Dr Petroff did not expect Mr Helm’s condition to improve over the course of a 24 month period although that may have been because he doubted Mr Helm was likely to be compliant with treatment: exhibit one at p 169. Mr Wagner gave a more nuanced prognosis. In his report (exhibit one at p 125) he suggested the condition might improve over 24 months, but it might not. In his oral evidence, he indicated he was moderately optimistic about Mr Helm’s prognosis during the relevant period, although he now accepts that events have shown the condition has persisted longer than expected.

11. While I accept the condition was fully diagnosed at the relevant time, there is significant doubt as to whether the applicant could be said to be fully treated because he did not persist with the trial of medication. I accept the applicant is skeptical of SSRI medications, but those drugs were not the only tool available to the psychiatrist. I am not satisfied he was fully treated at the relevant time for that reason.

12. I also accept there is doubt over whether the applicant was fully stabilised during the period under review. I acknowledge Dr Petroff’s report suggests Mr Helm was fully stabilised; Mr Wagner’s report and evidence offers a guarded but more optimistic prognosis. But given my conclusion about shortcomings in the applicant’s treatment regime, it would be difficult to find he was fully stabilised.

13. Even if I accept the applicant’s mental health conditions were fully diagnosed, treated and stabilised, there is simply no evidentiary basis for awarding 20 impairment points under table 5, which deals with mental health functioning. I acknowledge the Secretary’s investigation did not extend to a job capacity assessment. There was no need to do that at the time because the applicant did not appear to satisfy the preliminary requirements. But the evidence given at the hearing about the applicant caring for himself and his teenage daughter does not suggest he experienced a severe impairment, even taking into account his evidence that his daughter assisted with household tasks.

    The other conditions

14. Mr Helm has also referred to his back pain and knee conditions. I will deal with the back pain first. The condition was not fully diagnosed, fully treated and fully stabilised at the relevant time.  The applicant has only recently undergone scans which identified the likely source of the pain. During the period under review, he was undergoing symptomatic treatment at a pain management clinic attached to Southern Cross University, and regular physiotherapy sessions at St Vincent’s hospital in Lismore. He sought out that treatment on his own; it was not part of a treatment program administered by his medical practitioner. Impairment points cannot be allocated in respect of that condition.

15. The Secretary also says the applicant’s bilateral knee conditions were not fully diagnosed, treated and stabilised at the relevant time. Mr Helm explained he was kicked by a camel in one knee; the dysfunction in that knee contributed to stress on the other knee, which later became symptomatic. He says he has been told he will need a knee replacement in due course, but his doctors were reluctant to do that too early. It may be that there is no doubt over diagnosis, at least. But there is a further difficulty: given Mr Helm’s evidence at the hearing that he was able to drive his car and visit the supermarket, there is no basis for concluding he had a severe impairment that would attract 20 points under table 3, which deals with lower limb impairment.

    Conclusion

16. Mr Helm’s claim for the DSP made on 16 December 2013 cannot succeed because he did not at that time satisfy the medical criteria in s 94 of the Act. I express no view as to whether he might meet those criteria if he lodged a fresh application: his circumstances, especially in relation to the psychiatric conditions, may well have changed. But that is a question for another day.

I certify that the preceding 16 (sixteen) paragraphs are a true copy of the reasons for the decision herein of

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Associate

Dated   30 June 2015

Date of hearing	25 June 2015
Applicant	In person
Solicitors for the Respondent	Mr A Burgess