Post by seth on Oct 16, 2014 14:09:25 GMT 7
Confidential and Secretary, Department of Social Services [2014] AATA 737 (14 October 2014)
Last Updated: 15 October 2014
[2014] AATA 737
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2014/2111
Re
Confidential
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member J F Toohey
Date
14 October 2014
Place
Sydney
The Tribunal affirms the decision under review.
......................................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – motor vehicle accident – spinal injury –
anxiety and depression – whether conditions fully treated and stabilised – whether applicant had undergone reasonable treatment for anxiety and depression – whether continuing inability to work – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 35(2)
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security Act 1991 s 94
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
The decision in this matter is subject to an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of information that might identify the applicant. He is therefore referred to here as “the applicant” and information that might identify him has been removed or is referred to in a way that does not identify him.
The applicant was involved in a serious accident in 2002 while on the way to work. He suffers chronic pain in his neck, back and left knee as a result, and suffers from anxiety and depression. In August 2013, he applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for the DSP. In March 2014, the Social Security Appeals Tribunal (SSAT) agreed with Centrelink’s decision. The applicant has asked this tribunal to review that decision.
These written reasons reflect reasons outlined in brief at the conclusion of a hearing on 8 October 2014.
For the applicant’s application to succeed, I must be satisfied that he qualified for DSP in August 2013 when he applied to Centrelink, or within 13 weeks, that is by early November 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this period the relevant period.
To qualify for DSP during the relevant period, the applicant had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act) at that time. In summary, he had to have:
(i) a physical, intellectual or psychiatric impairment, or impairments, which was rated at 20 or more points according to the Impairment Tables in the Act; and
(ii) a continuing inability to work as defined in the Act.
DID THE APPLICANT HAVE AN IMPAIRMENT RATING OF 20 POINTS OR MORE DURING THE RELEVANT PERIOD?
The Impairment Tables are used to assess the effect of an impairment on a person’s capacity to function. The Tables that apply to the applicant are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be given to an impairment if the condition causing it is permanent, and the impairment is more likely than not to persist for more than two years.
A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is corroborating evidence of the condition;
(b) what treatment or rehabilitation the person has had for the condition; and
(c) whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(a) the person has undertaken reasonable treatment for the condition and 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
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a substantial improvement in functional capacity;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
I will consider the applicant’s impairments in turn.
Anxiety and depression
The applicant has provided reports dated 20 April 2009, 11 October 2011 and 3 May 2013 from a psychiatrist who saw him for assessment, rather than treatment, in relation to his workers compensation claim.
In his first report, the psychiatrist stated that the applicant “probably suffered from a chronic adjustment disorder with mixed features of anxiety and depression” which was in remission at that time.
In his second report, the psychiatrist stated that the applicant’s psychiatric status had deteriorated since he saw him in 2009; he had persistent depression of mood, suicidal ideation, moderately severe insomnia mainly due to pain, excessive fatigue, mildly diminished concentration and memory, variable appetite, significant weight loss, social withdrawal, irritability, marital disharmony and nihilistic attitudes. He thought the applicant likely to be suffering from a chronic major depressive disorder; he required appropriate pain management and psychiatric treatment which, ideally, should be provided through a pain management unit; he should be attending a psychiatrist on a fortnightly to monthly basis for 12 to 18 months and should be on appropriate medication, likely indefinitely.
In his third report, approximately three months before the applicant applied for DSP, the psychiatrist said the applicant had not seen a psychiatrist or other mental health professional since he last saw him and had had no contact with a pain specialist or pain management team; he “had undergone no operative or procedural intervention”. He was suffering from “a persistent chronic major depressive disorder in the context of his ongoing physical symptoms, impairment and disabilities” and “clearly requires psychiatric treatment” comprising seeing a psychologist for assistance with pain management for up to 18 appointments and be “appropriately medicated with a psychotropic regime”. He said the applicant appeared to be “resistant to the prospect of seeing mental health professionals” and feared “dependence on them and on psychotropic medication”; his general practitioner had tried prescribing an anti-depressant which the applicant said gave some benefits but also disadvantages and he ceased taking them.
The applicant’s reluctance to undergo treatment for his anxiety and depression is understandable. I accept that he fears dependence on antidepressants and that he sees little benefit in seeing a psychologist, especially given the likely cost. I accept that he prefers to take steps himself to deal with his condition and that he is genuine in his resistance to the treatment suggested by the psychiatrist. However, until he has at least seen a psychologist for some treatment, I do not think it can be said that he has undergone reasonable treatment for his anxiety and depression. I am not satisfied that his condition was fully treated and stabilised during the relevant period. It follows that it cannot be given an impairment rating.
The applicant’s back, neck and knee conditions
The applicant has provided two reports from a consultant general surgeon who saw him in August 2011 and March 2013 in connection with his workers compensation claim.
In his first report, the doctor noted that the applicant had pain in his back and neck, radiating down his left leg which is worse when he is standing, sitting, bending or lifting. In his job at the time, he could “only manage about 24 hours per week”; he would find it difficult to return to the full time heavy work he was doing previously but he was “well motivated” and was able to work in his current position “providing he only does about 24 hours a week, in a position where he is able to stand or sit at will and not lift anything more than 5 kg in weight and not do a lot of standing, walking, going up and down stairs, squatting or kneeling”.
In his second report, the doctor noted that the applicant continued to experience pain in his neck and back as before. He restated his view that the applicant would not be able to return to the full time heavy work he was doing previously but “he would be able to do about 15 to 20 hours per week of light work in a position where he is able to stand or sit at will and not lift anything more than 5 kg in weight and not do an excessive amount of standing, walking, going up and down stairs, squatting or kneeling.” He thought the applicant “would be able to do light work as a real estate agent or salesmen or cleaner within the above parameters only”.
The applicant told the SSAT that his knee was bruised and “clicked” after the accident in 2002. He understood it could be easily fixed with a simple operation but he could not afford it. While it appears to be annoying, the applicant is able to perform all household chores and walk up and down stairs. The surgeon reported in 2011 that he has a full range of movement in his knee.
I accept that the applicant’s back and neck conditions are fully treated and stabilised, and could be given an impairment rating. Although it appears that a “simple operation” could help the applicant’s knee, I accept that he is unable to afford that treatment and that it can be considered fully treated and stabilised. However, whatever the impairment ratings for the applicant’s back and neck and knee, the surgeon’s opinion is clearly that the applicant could work at least 15 hours each week in a suitable position. While the applicant does not completely agree, to his credit, he has continued to do his very best to continue working and explore options for employment including developing what he hopes will prove to be successful software.
A person who is able to work at least 15 hours a week does not have a continuing inability to work for the purposes of DSP: s 94(2) and (5) of the Act. This means that the applicant did not qualify for DSP during the relevant period.
CONCLUSION
The applicant clearly suffered serious injuries in 2002 and has found himself involved in protracted compensation litigation since. He appears to be strongly motivated to overcome his disabilities but continuing pain and financial difficulties make life very difficult for him. Unfortunately for him, for the reasons I have given, I must affirm the decision under review.
I certify that the preceding 24 (twenty-four paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
......................................................
Associate
Dated 14 October 2014
Date(s) of hearing
8 October 2014
Representative for the Applicant
Self represented
Representative for the Respondent
Ms Lynn James, Government Lawyer
Last Updated: 15 October 2014
[2014] AATA 737
Division
GENERAL ADMINISTRATIVE DIVISION
File Number(s)
2014/2111
Re
Confidential
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal
Senior Member J F Toohey
Date
14 October 2014
Place
Sydney
The Tribunal affirms the decision under review.
......................................................................
Senior Member J F Toohey
CATCHWORDS
SOCIAL SECURITY – disability support pension – motor vehicle accident – spinal injury –
anxiety and depression – whether conditions fully treated and stabilised – whether applicant had undergone reasonable treatment for anxiety and depression – whether continuing inability to work – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 s 35(2)
Social Security (Administration) Act 1999 s 42 and Sch 2
Social Security Act 1991 s 94
SECONDARY MATERIAL
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Senior Member J F Toohey
BACKGROUND
The decision in this matter is subject to an order under s 35(2) of the Administrative Appeals Tribunal Act 1975 prohibiting the publication of information that might identify the applicant. He is therefore referred to here as “the applicant” and information that might identify him has been removed or is referred to in a way that does not identify him.
The applicant was involved in a serious accident in 2002 while on the way to work. He suffers chronic pain in his neck, back and left knee as a result, and suffers from anxiety and depression. In August 2013, he applied for a Disability Support Pension (DSP). Centrelink decided he did not qualify for the DSP. In March 2014, the Social Security Appeals Tribunal (SSAT) agreed with Centrelink’s decision. The applicant has asked this tribunal to review that decision.
These written reasons reflect reasons outlined in brief at the conclusion of a hearing on 8 October 2014.
For the applicant’s application to succeed, I must be satisfied that he qualified for DSP in August 2013 when he applied to Centrelink, or within 13 weeks, that is by early November 2013: s 42 and Sch 2 of the Social Security (Administration) Act 1999. I will call this period the relevant period.
To qualify for DSP during the relevant period, the applicant had to satisfy the criteria in s 94 of the Social Security Act 1991 (the Act) at that time. In summary, he had to have:
(i) a physical, intellectual or psychiatric impairment, or impairments, which was rated at 20 or more points according to the Impairment Tables in the Act; and
(ii) a continuing inability to work as defined in the Act.
DID THE APPLICANT HAVE AN IMPAIRMENT RATING OF 20 POINTS OR MORE DURING THE RELEVANT PERIOD?
The Impairment Tables are used to assess the effect of an impairment on a person’s capacity to function. The Tables that apply to the applicant are in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
An impairment rating can only be given to an impairment if the condition causing it is permanent, and the impairment is more likely than not to persist for more than two years.
A condition is permanent if it has been fully diagnosed by an appropriately qualified medical practitioner, and it has been fully treated and fully stabilised, and it is more likely than not to persist for more than two years: cl 6(4).
When deciding whether a condition has been fully diagnosed and fully treated, the following must be considered:
(a) whether there is corroborating evidence of the condition;
(b) what treatment or rehabilitation the person has had for the condition; and
(c) whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:
(a) the person has undertaken reasonable treatment for the condition and 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
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Reasonable treatment means treatment that:
(a) is available at a location reasonably accessible to the person;
(b) is at a reasonable cost;
(c) can reliably be expected to result in a substantial improvement in functional capacity;
(d) is regularly undertaken or performed;
(e) has a high success rate; and
(f) carries a low risk to the person.
I will consider the applicant’s impairments in turn.
Anxiety and depression
The applicant has provided reports dated 20 April 2009, 11 October 2011 and 3 May 2013 from a psychiatrist who saw him for assessment, rather than treatment, in relation to his workers compensation claim.
In his first report, the psychiatrist stated that the applicant “probably suffered from a chronic adjustment disorder with mixed features of anxiety and depression” which was in remission at that time.
In his second report, the psychiatrist stated that the applicant’s psychiatric status had deteriorated since he saw him in 2009; he had persistent depression of mood, suicidal ideation, moderately severe insomnia mainly due to pain, excessive fatigue, mildly diminished concentration and memory, variable appetite, significant weight loss, social withdrawal, irritability, marital disharmony and nihilistic attitudes. He thought the applicant likely to be suffering from a chronic major depressive disorder; he required appropriate pain management and psychiatric treatment which, ideally, should be provided through a pain management unit; he should be attending a psychiatrist on a fortnightly to monthly basis for 12 to 18 months and should be on appropriate medication, likely indefinitely.
In his third report, approximately three months before the applicant applied for DSP, the psychiatrist said the applicant had not seen a psychiatrist or other mental health professional since he last saw him and had had no contact with a pain specialist or pain management team; he “had undergone no operative or procedural intervention”. He was suffering from “a persistent chronic major depressive disorder in the context of his ongoing physical symptoms, impairment and disabilities” and “clearly requires psychiatric treatment” comprising seeing a psychologist for assistance with pain management for up to 18 appointments and be “appropriately medicated with a psychotropic regime”. He said the applicant appeared to be “resistant to the prospect of seeing mental health professionals” and feared “dependence on them and on psychotropic medication”; his general practitioner had tried prescribing an anti-depressant which the applicant said gave some benefits but also disadvantages and he ceased taking them.
The applicant’s reluctance to undergo treatment for his anxiety and depression is understandable. I accept that he fears dependence on antidepressants and that he sees little benefit in seeing a psychologist, especially given the likely cost. I accept that he prefers to take steps himself to deal with his condition and that he is genuine in his resistance to the treatment suggested by the psychiatrist. However, until he has at least seen a psychologist for some treatment, I do not think it can be said that he has undergone reasonable treatment for his anxiety and depression. I am not satisfied that his condition was fully treated and stabilised during the relevant period. It follows that it cannot be given an impairment rating.
The applicant’s back, neck and knee conditions
The applicant has provided two reports from a consultant general surgeon who saw him in August 2011 and March 2013 in connection with his workers compensation claim.
In his first report, the doctor noted that the applicant had pain in his back and neck, radiating down his left leg which is worse when he is standing, sitting, bending or lifting. In his job at the time, he could “only manage about 24 hours per week”; he would find it difficult to return to the full time heavy work he was doing previously but he was “well motivated” and was able to work in his current position “providing he only does about 24 hours a week, in a position where he is able to stand or sit at will and not lift anything more than 5 kg in weight and not do a lot of standing, walking, going up and down stairs, squatting or kneeling”.
In his second report, the doctor noted that the applicant continued to experience pain in his neck and back as before. He restated his view that the applicant would not be able to return to the full time heavy work he was doing previously but “he would be able to do about 15 to 20 hours per week of light work in a position where he is able to stand or sit at will and not lift anything more than 5 kg in weight and not do an excessive amount of standing, walking, going up and down stairs, squatting or kneeling.” He thought the applicant “would be able to do light work as a real estate agent or salesmen or cleaner within the above parameters only”.
The applicant told the SSAT that his knee was bruised and “clicked” after the accident in 2002. He understood it could be easily fixed with a simple operation but he could not afford it. While it appears to be annoying, the applicant is able to perform all household chores and walk up and down stairs. The surgeon reported in 2011 that he has a full range of movement in his knee.
I accept that the applicant’s back and neck conditions are fully treated and stabilised, and could be given an impairment rating. Although it appears that a “simple operation” could help the applicant’s knee, I accept that he is unable to afford that treatment and that it can be considered fully treated and stabilised. However, whatever the impairment ratings for the applicant’s back and neck and knee, the surgeon’s opinion is clearly that the applicant could work at least 15 hours each week in a suitable position. While the applicant does not completely agree, to his credit, he has continued to do his very best to continue working and explore options for employment including developing what he hopes will prove to be successful software.
A person who is able to work at least 15 hours a week does not have a continuing inability to work for the purposes of DSP: s 94(2) and (5) of the Act. This means that the applicant did not qualify for DSP during the relevant period.
CONCLUSION
The applicant clearly suffered serious injuries in 2002 and has found himself involved in protracted compensation litigation since. He appears to be strongly motivated to overcome his disabilities but continuing pain and financial difficulties make life very difficult for him. Unfortunately for him, for the reasons I have given, I must affirm the decision under review.
I certify that the preceding 24 (twenty-four paragraphs are a true copy of the reasons for the decision herein of Ms J Toohey, Senior Member.
......................................................
Associate
Dated 14 October 2014
Date(s) of hearing
8 October 2014
Representative for the Applicant
Self represented
Representative for the Respondent
Ms Lynn James, Government Lawyer