Owen and Secretary, Department of Family and Community Services [2002] AATA 889 (4 October 2002)

Last Updated: 9 October 2002

DECISION AND REASONS FOR DECISION [2002] AATA 889

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/1501

GENERAL ADMINISTRATIVE DIVISION )

Re LARRY OWEN

Applicant

And SECRETARY, DEPARTMENT OF FAMILY & COMMUNITY SERVICES

Respondent

DECISION

Tribunal Ms N Isenberg, Member

Date 4 October 2002

Place Sydney

Decision The Administrative Appeals Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid disability support pension from 27 April 2001. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant disability support pension from that date.

[SGD] Ms N Isenberg

Member

CATCHWORDS

SOCIAL SECURITY - disability support pension - cancellation of disability support pension - psychiatric impairment - entitlement to disability support pension - whether the Applicant's condition was permanent - if so did Applicant have an impairment rating of 20 points or more under the Impairment Tables - whether the Applicant had a "continuing inability to work"

LEGISLATION

Social Security Act 1991 section 94

Social Security Act 1991 Schedule 1B

Social Security (Administration) Act 1999 Schedule 2, clause 4

CASE LAW

Re Tlonan and Secretary, Department of Social Security (1996) 24 AAR 467

Re Faysal and Secretary, Department of Family and Community Services [2002] AATA 539

Hudson and Department of Family and Community Services [2002] AATA 502

Re Newton and Secretary, Department of Family and Community Services (2000) 60 ALD 317

REASONS FOR DECISION

4 October 2002 Ms N Isenberg, Member

DECISION UNDER REVIEW

1. The decision under review before the Administrative Appeals Tribunals ("the Tribunal") was the decision of the Social Security Appeals Tribunal ("the SSAT") on 10 July 2001 (T2) affirming the decision of the authorised review officer dated 30 May 2001 (T20) which had earlier affirmed the decision of the Respondent, the Secretary, Department of Family and Community Services ("the Department") dated 27 April 2001 (T16) to cancel the Mr Larry Owen's ("the Applicant's") disability support pension.

BACKGROUND

2. The facts to this application are set out in the Respondent's Statement of Facts and Contentions and are reproduced as follows:

"1993 Applicant initially claimed Disability Support Pension

1 Feb 1993 Dr Tran, the applicant's treating doctor, advised that his long-term anxiety disorder condition was being treated with antidepressive drugs and psychotherapy. Dr Tran advised that the condition was stable but he was not fit for even part-time work, because he was "unable to concentrate". (T4)

14/1/94 AGHS assessed a permanent impairment at 20%, for his anxiety and depression. His condition was accepted as persistent, despite having had ongoing treatment (including weekly psychotherapy with his psychiatrist and several medications). Improvement with treatment was possible, so medical review was recommended.

1994 DSP was granted, as the applicant had 20% impairment and was unfit for work.

1995 DSP provisions were significantly amended, as to ratings and work ability.

7/2/01 On review of qualification, HSA referred to Dr George for a psychiatric assessment.

27/4/ 01 A decision was made to cancel DSP, after HSA assessed a nil impairment rating.

30/5/01 On review, the ARO affirmed the decision to cancel DSP.

10/7/01 On appeal, the SSAT affirmed the decision to cancel DSP.

2/10/01 Applicant appealed to the AAT.

19/11/01 Prof. Hayes assessed "severe and chronic depression, as well as moderate anxiety..." "He was prescribed medication", but "he prefers not to take medication", and he "continues to require treatment by a psychiatrist."

8/5/02 Dr Roberts, psychiatrist, agreed with Prof. Hayes that he has depression and anxiety. He assessed a recurrent major depression "mood disorder superimposed upon a personality disorder", but extremely limited treatment was noted, such that a long-term prognosis cannot be established.

22/5/02 Dr Keen, Senior Medical Adviser of HSA, discussed Dr Roberts' findings with him.

27/5/02 Dr Keen advised the depression does not rate, on the Impairment Tables, because "he has had only limited treatment to date, and should undergo further specialist treatment before his condition can be regarded as treated and stabilised". With his spinal condition rated at 0 impairment, his combined impairment rates under 20. He is considered to have a temporary incapacity for work.

19/7/02 & 8/7/02 Prof. Hayes gave her further opinions, including the validity of psychology testing, difficulties with treatment and that he will not be capable of work within 2 years."

ISSUES BEFORE THE TRIBUNAL

3. The issues identified were as follows:

(1) Whether the applicant has a physical, intellectual or psychiatric impairment and that impairment is 20 points or more under the Impairment Tables in Schedule 1B of the Social Security Act 1991; and

(2) if so, whether or not he has a continuing inability to work because of the impairment because

* the impairment of itself prevents him from doing any work for at least 30 hours per week at award wages within the next 2 years; and either

* the impairment of itself is sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next 2 years; or

* such training is unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next 2 years.

4. Entitlement to disability support pension is governed by section 94 of the Social Security Act 1991 ("the Act"), which provides as follows:

"94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person's impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;

(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and

(d) the person has turned 16; and

(e) the person either:

(i) is an Australian resident at the time when the person first satisfies paragraph (c); or

(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or

(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:

(A) is not an Australian resident; and

(B) is a dependent child of an Australian resident;

and the person becomes an Australian resident while a dependent child of an Australian resident.

94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

(a) the impairment is of itself sufficient to prevent the person from doing any work within the next 2 years; and

(b) either:

(i) the impairment is of itself sufficient to prevent the person from undertaking educational or vocational training or on-the-job training during the next 2 years; or

(ii) if the impairment does not prevent the person from undertaking educational or vocational training or on-the-job training--such training is unlikely (because of the impairment) to enable the person to do any work within the next 2 years.

94(3) In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:

(a) the availability to the person of educational or vocational training or on-the-job training; or

(b) if subsection (4) does not apply to the person--the availability to the person of work in the person's locally accessible labour market.

94(4) For the purposes of subparagraph (2)(b)(ii), if a person has turned 55, the Secretary may, in considering whether educational or vocational training is likely to enable the person to do work, have regard to the likely availability to the person of work in the person's locally accessible labour market.

94(5) In this section:

educational or vocational training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

on-the-job training does not include a program designed specifically for people with physical, intellectual or psychiatric impairments;

work means work:

(a) that is for at least 30 hours per week at award wages or above; and

(b) that exists in Australia, even if not within the person's locally accessible labour market.

Person not qualified in certain circumstances

94(6) A person is not qualified for a disability support pension on the basis of a continuing inability to work if the person brought about the inability with a view to obtaining a disability support pension or a sickness allowance or with a view to obtaining an exemption, because of the person's incapacity, from the requirement to satisfy the activity test for the purposes of job search allowance, newstart allowance, youth training allowance, youth allowance or austudy payment."

5. Insofar as section 94(1) of the Act is concerned, there was no dispute that the Applicant does have a physical and psychiatric impairment, he is greater than 16 years of age and he is an Australian resident.

6. The issues in dispute in the current application, however, are whether the Applicant had an impairment of 20 points or more under the Impairment Tables and, if so, whether he had a "continuing inability to work".

TIME FOR CONSIDERATION OF ENTITLEMENT TO DISABILITY SUPPORT PENSION

7. Schedule 2, clause 4 of the Social Security (Administration) Act 1999 provides, so far as is relevant:

"4 Start day--early claim

(1) If:

(a) a person (other than a detained person) makes a claim for a relevant social security payment; and

(b) the person is not, on the day on which the claim is made, qualified for the payment; and

(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

(d) the person becomes so qualified within that period;

the claim is taken to be made on the first day on which the person is qualified for the social security payment.

(2) For the purposes of subclause (1), the following provisions have effect:

(a) subject to paragraph (b), any social security payment, other than newstart allowance or special benefit, is a relevant social security payment;

(b) ..."

8. Therefore, the Tribunal had to consider if the Applicant was entitled to the disability support pension on 27 April 2001, the date on which his disability support pension was cancelled.

APPEARANCES

9. A hearing was held before the Tribunal on 15 August 2002 at which the Applicant was represented by Mr M Vincent of counsel, instructed by Ms G Read of the Legal Aid Commission of NSW and the Respondent was represented by Ms M Buckley, an advocate from the Advocacy and Administrative Law Team at Centrelink.

EVIDENCE: DOCUMENTS

10. The Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-documents"), which the Tribunal took into evidence.

11. In addition, the following documents were tendered:

EXHIBIT DOCUMENT DATE

TD1 T-documents T1-T22,pp1-129 01 November 2001

A1 Applicant's Statement of Facts & Contentions 14 March 2002

A2 3 Reports of Dr S K Law Various Dates

A3 Report of Dr M Ng 30 January 2001

A4 4 Reports of Dr O Ali Various Dates

A5 Report of Associate Professor Hayes 19 November 2001

A6 Report of Associate Professor Hayes 8 July 2002

A7 Report of Associate Professor Hayes 19 July 2002

R1 Respondent's Statement of Issues 15 November 2001

R2 Respondent's Statement of Facts and Contentions 6 August 2002

R3 Request for file review and response from Dr D Keen 8 March 2002 and 27 May 2002

R4 Letter from Dr D Keen to Dr G George Undated

R5 Report of Dr J Roberts 08 May 2002

R6 Newspaper job advertisement in "The Torch" 14 August 2002

EVIDENCE: THE APPLICANT

12. The Applicant gave sworn evidence and was cross-examined on behalf of the Respondent. Questions were also put to the Applicant by the Tribunal.

13. The Applicant said that he had been educated to Year 10 but could only read and write enough "to get by". After leaving school his jobs were as a factory hand, a labourer and a spray painter. His last job, which was in the early 1990s, had been doing lawn mowing and working as a handyman.

14. He has been under the care of Dr Tran since about 1986, and Dr Tran remains his GP. As the doctor is now about 65 years old and is reducing his practice, occasionally the Applicant sees other doctors.

15. The Applicant would see a doctor sometimes as frequently as weekly for his "nerves". He said that if he gets really stressed his stomach "blows up" and he would see Dr Tran about that, as well as colds and flu and his back pain. Dr Tran gave him Valium for his nerves and he would see him when he needed more. The Valium did help but he ultimately "became addicted".

16. In about 1992 or 1993 Dr Tran referred him to Dr Ali, consultant psychiatrist, because he "couldn't cope and was depressed and anxious". Dr Tran thought he would benefit from seeing a psychiatrist. He continued to take Valium even after he started seeing Dr Ali.

17. At first he saw Dr Ali weekly or fortnightly and then tapered off to once a month. He then saw him monthly for about a year or so and then only as he needed medication. They would talk about his feelings and about how the medication was going. As a result of these discussions, his medication was frequently changed. Even if it helped for a time the benefit only lasted for a short time. Sometimes there were side effects such as loss of libido and "hormonal changes", although it was conceded that there was no medical evidence of this. In all he tried four to five different lots of medication. He didn't really find Dr Ali's treatment to be helping him.

18. In 1996, after a fight with his wife, he took an overdose and was hospitalised for three to four days. After that he didn't really like taking medication at all and stopped taking everything, including Valium, altogether. He talked to Dr Tran and Dr Ali about the suicide attempt and more medication was prescribed but he refused to take it because he worried he might attempt suicide again.

19. Sometime in 1996 or 1997 he went back to see Dr Ali but found the doctor had "vanished". He kept going to Dr Tran every one to two months and did not immediately ask to be referred to another psychiatrist because he did not think it would help. Dr Tran continued to prescribe Valium. He did not think Dr Tran provided "counselling" but they would talk about "how (he) was going". He recalled Dr Tran observing that his hands were shaking. Nothing seemed to help him and he would just stay away from things that affected him and that is all that seemed to work.

20. Then, in January 2001 he was referred by Dr Tran to Dr Ng, another consultant psychiatrist, whom he saw three times. More medication was prescribed but neither that nor talking with the psychiatrist helped.

21. Then he was referred to Dr Law in May 2001, after he told Dr Tran that Dr Ng's treatment wasn't helping him. He saw Dr Law about four times. He would see him to get medication and they would talk about how he was feeling and about how the medication was going. Usually the medication was changed after about a month because what had been prescribed was not assisting.

22. Since that time, he has remained in the care of Dr Tran who continues to prescribe medication. Currently he is on Tolvon at night. It is supposed to calm him down but even that has the side effect of make him dizzy during the night and causes loss of libido.

23. He said that his condition fluctuates quite a bit. There are times when he feels "OK" but at times he feels "rotten". He can change on a day to day basis, or sometimes it will be longer. If he has too many problems he gets anxious and "loses his block" and then gets depressed. If he gets a decent sleep the mornings are "OK", but by the afternoon he has "had enough'" Sometimes he goes to bed at about 8-9 pm but is unlikely to sleep more than three to four hours per night. It is rare for him to have a good night's sleep.

24. After getting up between 7 and 9am he watches TV or videos and might go out to the park with his wife and young son. He does not otherwise go out and does not like shopping centres at all. He does not drink or smoke and has only tried marijuana about twice in his life. His only interests are movies and his aquarium and he does some occasional work on his car.

25. He feels that he is worse now than he was about 10 years ago and for the last 18 months he has been about the same.

26. In cross-examination the Applicant's attention was invited to T10/86, the form dated 18 December 2000, which he completed as part of the medical review which led to the cancellation of his pension. There he indicated that he sometimes had difficulty with sitting, standing, walking, driving and using public transport due to a combination of back, neck and hip pain. He said there that his nervous condition affects his ability to concentrate, remember, interact with others and attend work. His sleeping was affected as was his management of his personal affairs and his ability to care for himself and others.

27. His attention was invited to an extract from a recent edition of the Bankstown Torch newspaper advertising a labouring job (Exhibit R6). He said he did not think he could do the job if it would put him under stress. He became agitated and said that he felt that something would happen in the course of the job and he would "blow up".

EVIDENCE: PROFESSOR HAYES

28. Dr Hayes, Associate Professor and Head of the Centre of Behavioural Sciences at the University of Sydney gave evidence that she had seen the Applicant on 15 November 2001 and had provided the reports of 19 November 2001 and 8 and 19 July 2002 (Exhibits A5 and A6). She had read the reports of Drs Ali (Exhibit A4), Ng (Exhibit A3) and Law (Exhibit A2), the Applicant's former treating psychiatrists, and the reports of Drs Roberts (Exhibit R5) and Keen (Exhibit R3), who had reported in relation to the Applicant on behalf of the Respondent.

29. She said the Applicant gave a history of chronic depression for which various types of intervention had been attempted. This included relaxation and medication but nothing had relieved the depression much, if at all. She also observed that he had been counselled by Dr Law and had been advised in relation to other non-medication reliant procedures.

30. She said the course of treatment was consistent with his symptoms. He goes for his scheduled appointments and doctors report back to his GP. He has not been "shopping around". Dr Law's reports, for example, indicate that following feedback from the Applicant his medication has been altered in terms of that prescribed and also as to dosage.

31. In relation to the suggestion that he had not been engaging in the treatment prescribed, Professor Hayes said that the Applicant had trialed a wide variety of medication and had undergone counselling and had tried relaxation techniques. As to Dr Ali's recommendation of "psychotherapy with his self-esteem in focus" in his report of 4 February 1993 she said she found no indication in Dr Ali's reports that this form of treatment had not occurred over the four years he was Dr Ali's patient.

32. As to the suggestion of Dr Roberts that the Applicant attend a Mood Disorder Unit, Professor Hayes did not think this a realistic course. She was unable to locate a course without a waiting list and, observed that the Applicant would have to attend as a private patient. Only in-patient treatment was offered and, in her view, his condition did not warrant in-patient treatment. Professor Hayes acknowledged that another possible treatment which could be tried was cognitive behavioural therapy, although that was more for anxiety than depression. She doubted that that would be any more successful than anything already tried.

33. In any event the Applicant has tried medication, relaxation and counselling and nothing has worked, because for some patients, nothing does work. She has found this even in her own practice. He has been trialed on "all sorts" of medication for eight or nine years and he remains chronically depressed.

34. As to the Applicant's evidence that he is reluctant to take medication, Professor Hayes acknowledged this, given his suicide attempt by an overdose of prescribed medication. It was not unreasonable, in her view, for him to be wary of medication, especially in circumstances where the medication has not helped. She said that 66 per cent of patients reported side effects from medication or that the prescribed medication is otherwise ineffective.

35. Some people get to the point of suicide when they are on medication but nothing is working. In view of the different medications listed as having been trialed, Professor Hayes found it difficult to suggest any other which could be tried.

36. The Applicant's medical advisers have attempted to work around his reluctance to take medication and the lack of success with medication, by counselling and other non-medical intervention. These too, have been unsuccessful in treating his condition.

37. He has been under the care of Dr Tran for years and most cases like that of the Applicant are handled by GPs. Only extreme cases are referred to psychiatrists. The fact that he was referred to a psychiatrist indicates that his GP recognises that his condition is severe. Referral to a psychiatrist is a form of management in itself. She described Dr Tran's present role as "a watching brief" to ensure the depression doesn't deteriorate.

38. When asked as to the Applicant's condition at the relevant time, that is, April 2001, Professor Hayes said that he had a long history of depression with suicidal ideation. When she saw him in November 2001 he was suffering severe depression, but not, at that time, actively suicidal. While he may lift out of his depression momentarily, or even for some weeks, that does not last and the depression recurs and is therefore to be regarded as chronic. Professor Hayes confirmed that the Applicant's condition attracts a rating of 20 impairment points under Table 6 of Schedule 1B of the Act

SUBMISSIONS: APPLICANT

39. It was contended on behalf of the Applicant that he qualified for disability support pension because he has psychiatric impairment which is properly rated at at least 20 points under the Table 6 of the Impairment Tables. Because of the impairment, he has a continuing inability to undertake any work for at least 30 hours per week in the next two years. In addition, his impairment would of itself prevent him from undertaking educational or vocational training or on-the-job training during the next two years.

40. It was submitted that his condition was a permanent one in that it had been fully diagnosed, as chronic depression, had been treated extensively, albeit without success, and the condition had stabilised. The Applicant was effectively left with self-management as his ongoing treatment as all other treatments had failed.

41. By the time the Applicant lodged his claim in 1993, he had already had a seven year history of an anxiety disorder (T4/21). Dr Tran considered it appropriate at that time to refer the Applicant to a psychiatrist. He had managed to work until that time but the Commonwealth Medical Officer ("CMO") found him unfit to work. His condition was possibly deteriorating at that time (T8 /59-60).

42. In 1994 the CMO, Dr Turner, noted a comprehensive regime of treatment (T9/65) and he was found to be permanently incapacitated for work (T9/71). Dr Turner found there to be no likelihood of change in his condition (T9/79).

43. The Applicant saw Dr Ali regularly up to 1997. His evidence was that he saw him weekly, then fortnightly, then monthly. The reports of Dr Ali were written to Dr Tran expressing concern at their mutual patient's condition, and were not prepared as medico-legal reports.

44. He remained under the care of Dr Tran, his GP, as, according to Professor Hayes, do most patients with emotional and behavioural problems. There was some suggestion that the referral to Dr Ng occurred independently of the review process.

45. When Dr Ng's treatment proved ineffective, the Applicant was referred to Dr Law whose reports (Exhibit A2) indicate active management of the Applicant's condition and responsiveness to the Applicant's observations about the lack of effectiveness of medication.

46. The reports of the three psychiatrists are consistent in that the Applicant went to each one, and each tried different treatments in an attempt to alleviate a stable condition. Nobody, with the exception of Dr Roberts suggest that there is something missing in this treatment. Even Dr Roberts considered the Applicant had a clear disability. His suggestion of a "sub-class" of treatment (The Mood Disorder Unit) was not plausible and he was not definite that it would make a difference.

47. Counsel for the Applicant took the Tribunal to a number of cases.

* Counsel for the Applicant said, that as in the case of Re Tlonan and Secretary, Department of Social Security (1996) 24 AAR 467, the Applicant had tried various forms of medication without success. However, in Tlonan's case there was other prescribed medication which had not been taken. In this case, the Applicant's current "treatment" is not to take medication or to take it reluctantly.

* In Re Faysal and Secretary, Department of Family and Community Services [2002] AATA 539 the applicant had a form of reactive depression to his back condition. While his back had been fully investigated his psychiatric condition had not. This case differs from Re Faysal (supra) in that the Applicant had been undergoing treatment for his depression for many years but no doctors had been able to assist.

* In Hudson and Department of Family and Community Services [2002] AATA 502 the Tribunal was prepared to assess a condition even though a definite diagnosis could not be provided. In the Applicant's case there was a clear diagnosis of depression but his depression did not respond to treatment.

* In Re Newton and Secretary, Department of Family and Community Services (2000) 60 ALD 317, the Tribunal declined to assess the applicant's sinus condition as two specialists had recommended an operation which the applicant did not undergo. In Mr Owen's case there is no evidence from experts that the Applicant should undergo some major form of treatment - there is only Dr Roberts and his recommendation of a particular type of clinic which might assist.

48. It was submitted that precisely how the Applicant was at the time of the cancellation of his pension is not relevant because of the evidence about the long-standing nature of his fluctuating condition. The Tribunal should consider how the Applicant was generally at that time and his condition remains generally unchanged from how it has always been.

49. The Applicant's reason for not taking medication is clearly that he is concerned about another suicide attempt and anyway he has found the various drugs to be ineffective. As to what further treatment might be reasonable, counsel for the Applicant referred to the Introduction to Schedule 1B as follows:

"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."

50. As to evidence for the purposes of an impairment rating, the submission was that the only evidence of impairment was that of Professor Hayes who rated the Applicant at 20 impairment points. Even Dr Roberts said he did not disagree with Professor Hayes' conclusion.

SUBMISSIONS: RESPONDENT

51. The first point made on behalf of the Respondent was that the Applicant's condition could not be assessed as it has not yet been fully diagnosed, treated and stabilised. It was submitted that in determining this the Tribunal should 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;

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised;

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.

52. In this regard it was noted that Dr Tran had described the Applicant's condition (including his back condition) as "unstable" in 1993 (T8/61). He said of the Applicant's functional capacity that it was stable and "? deteriorating". At that time Dr Tran observed that the Applicant was seeing Dr Ali, but the Applicant told the CMO that he saw Dr Ali for only 15-20 minutes a week for three weeks (T5/25). In the light thereof, the advocate for the Respondent queried the extent of Dr Ali's treatment, given that he had not been called on behalf of the Applicant. It was noted that even though the CMO had accepted the Applicant's claim for his psychiatric condition he had (T9/79) left open the possibility of improvement.

53. The advocate for the Respondent submitted that there was in fact little by way of treatment between 1996 and 2001. It was only in early 2001 when the Applicant's entitlement to disability support pension was reviewed that the Applicant's condition apparently deteriorated in response to the stress of having his pension reviewed, and he again required psychiatric assistance. Up until that time his condition may have continued but his treatment did not. The limited treatment has been intermittent and incomplete, even "negligible".

54. It was submitted that this case is not like those where the prescribed treatment is rest. The Applicant's evidence should be seen as admitting he was not being adequately treated.

55. The sort of treatment identified by Dr Roberts is available at St John of God Hospital in Burwood, to which the Applicant would be able to drive.

56. It was submitted for the Respondent that the evidence of Drs Roberts and Keen is that the Applicant's condition has not stabilised and therefore cannot be rated under the Act.

57. In the alternative, it was submitted that if the Tribunal found that the condition was indeed of a permanent nature and could be rated, there is difficulty in doing so because of the limited medical material available to the Tribunal, that is, only the evidence of Professor Hayes, who had "merely expressed an opinion".

58. If the Tribunal considered there was sufficient material to assess the Applicant, the submission on behalf of the Respondent was that, given the Applicant's symptoms, an appropriate rating was 10 points.

59. If the Tribunal were of the view that the Applicant's condition was properly rated at 20 impairment points, then it was further submitted on behalf of the Respondent, that the Applicant does not have a continuing inability to work because of his impairments.

60. Professor Hayes' view is that because of the Applicant's entrenched recurrent major depression, he will not be capable of work within the next two years. Professor Hayes was apparently of this view, it was said, because conditions such as the Applicant's are difficult to treat, relying on the evidence that the Applicant's condition has continued, despite some treatment.

61. Dr Roberts was of the view that due to the "extremely limited" treatment to date, a long-term prognosis for the Applicant cannot be established. However, he considered that, after a period of suitable specialist treatment of about three months, the condition may stabilise. If so, an ability to resume work could then be expected. The Tribunal was asked to prefer the evidence of Dr Roberts to that of Professor Hayes on the basis that it is "more reasonable in the light of the events in this case". It was submitted for the Respondent that the Applicant's impairment "does not of itself" prevent him from doing any work for at least 30 hours per week at award wages within the next two years. He was in fact able to work with the condition, which he has had in one form or another for many years, up until 1993.

62. It was also submitted that the Applicant's impairment of itself is not sufficient to prevent him from undertaking educational or vocational training or on-the-job training during the next two years. While his condition remains inadequately treated, he suffers from symptoms, which would make it difficult for him to undertake a new endeavour such as training, which would require his concentration. Once his condition is adequately treated, he may be able to undertake training, to facilitate his return to work.

63. It was further submitted that neither is such training unlikely (because of the impairment) to enable him to do any work for at least 30 hours per week at award wages within the next two years.

64. A continuing inability to work has not been established, in this matter. As such, qualification has not been met, in accordance with section 94(1)(c)(i) of the Act.

65. The decision to cancel the Applicant's pension was made on 27 April 2001. His disability support pension payments were in fact stopped on 24 May 2001 (T16/113). Since about that time, and continuing currently, he is in receipt of Newstart Allowance. The Respondent submits that, at all relevant times, the Applicant was not qualified for the payment of the disability support pension due to not meeting the criteria set down in section 94 of the Act.

FINDINGS

66. In coming to the correct and preferable decision, the Tribunal took into account all the evidence, submissions, case law and relevant legislation.

67. The first task for the Tribunal was to be satisfied that the Applicant's condition was one which could properly be described as "permanent" so as to attract a rating at all.

68. Under Schedule 1B--Tables For The Assessment Of Work-Related Impairment For Disability Support Pension (Social Security Act 1991) appears the following under the heading of Introduction:

"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.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person. In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

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."

69. It was therefore to be determined if the Applicant's condition had been diagnosed, treated and stabilised.

70. There was ample evidence before the Tribunal that the Applicant suffers from a very long-standing psychiatric condition. It has most frequently been described as depression, although occasionally referred to as anxiety. The Tribunal accepts, in accordance with Hudson (supra) that, however described, the Applicant has a psychiatric condition and that this suffices as "a diagnosis" for the present purpose.

71. The Tribunal also finds that the Applicant's condition has been extensively treated. In coming to this view the Tribunal was mindful of the decision in Re Tlonan (supra) to which counsel for the Applicant referred:

"... investigated, treated and stabilised.

...

... That is to say [treatment] should not be limited to medical treatment in the sense of surgery or the prescription of medication. In its context, the word "treatment" refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling. What amounts to the treatment in any particular case will depend on the individual circumstances of that case. ...

... If a condition is not cured, or at least does not respond, to reasonable methods of treatment or if the side effects of the treatment are such that they are not tolerable or are harmful, the condition can still be said to have been treated. What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case. ..."

72. The Tribunal finds that over the years the Applicant has received treatment in the form of an almost exhaustive selection of medication, counselling (whether formally described as such or otherwise) and relaxation techniques. Notwithstanding his referral to three different psychiatrists, and an expert such as Professor Hayes, all were at a loss as to what further treatment might assist him.

73. The evidence also supported, in the Tribunal's view, a finding that his condition had stabilised. While the Applicant's condition may fluctuate, he is never entirely free of his depression for more than a short period. Fortunately he appears to no longer be suicidal, but his condition is now, as it has been for some years, one which will simply not go away despite a range of efforts by a variety of medical practitioners, to deal with it. His GP has a "watching brief" to ensure his condition does not get even worse. His condition has stabilised, although it may be prone to deterioration. It is not likely to improve. Neither further time nor relevant therapeutic intervention (if any), in the Tribunal's view, is likely to result in significant functional improvement within the next two years.

74. Having come to that view, the Tribunal turned to consider the appropriate impairment rating. The only evidence in assessment of the Applicant's condition was that by Professor Hayes - 20 impairment points. Dr Roberts did not demur from that view.

75. The Tribunal made its assessment on the basis of that evidence and taking into account the evidence of the Applicant.

76. The Tribunal found that the Applicant's depression has serious symptomatology. His evidence, supported by the views of his GP and the psychiatrists who have treated him, was that he has feelings of being unable to cope and he becomes depressed and anxious. He argues with his wife and can "lose his block" at seemingly innocuous occurrences. He sleeps poorly and so is prone to fatigue. He does not go out except with his wife and child and will not go to shopping centres at all. He has few interests. In his claim form he had noted his inability to concentrate, remember, interact with others and attend work. His sleeping is affected, as is his management of his personal affairs and his ability to care for himself and others.

77. His condition causes some physical symptoms too - if he gets really stressed his stomach "blows up'" Medication tried has produced side effects - loss of libido, dizziness and possible "hormonal changes".

78. He continues to worry about the possible recurrence of suicidal ideation.

79. Furthermore, the Tribunal found that there is significant interference with his ability to work. It was apparent to the Tribunal that he easily becomes agitated and worried that in a work environment he would inevitably "blow up".

80. Significantly, Professor Hayes' evidence lead the Tribunal to the view that when she saw him in November 2001 he was suffering severe depression and was in that state at the relevant time, that is, April 2001.

81. On the basis of these findings, the Tribunal came to the view that a rating of 20 impairment points is appropriate for his condition from 27 April 2001.

82. The Tribunal also found that because of the impairment he has a continuing inability to undertake any work for at least 30 hours per week in the next two years. In addition, his impairment would of itself prevent him from undertaking educational or vocational training or on-the-job training during the next two years. In coming to this view, the Tribunal noted and accepted the evidence of Dr Law (Exhibit A2) that his prospects in this regard were "extremely bleak". Professor Hayes was of the view that his impairments are of themselves sufficient to prevent him from performing any work for at least 30 hours per week at award wages in the next two years. This was due to his "entrenched chronic depression and entrenched anxiety disorder which are both difficult to treat". Professor Hayes' oral evidence lead the Tribunal to the view that "difficult to treat" was a somewhat reserved assessment.

83. The Tribunal therefore finds that the Applicant was, at the relevant date qualified for disability support pension because he has psychiatric impairment which is properly rated at at least 20 points under the Impairment Tables. Because of the impairment, the Tribunal finds he has a continuing inability to undertake any work for at least 30 hours per week in the next two years. In addition, his impairment would of itself prevent him from undertaking educational or vocational training or on-the-job training during the next two years.

DECISION

84. The Tribunal sets aside the decision under review and in substitution therefor determines that the Applicant is entitled to be paid disability support pension from 27 April 2001. The Tribunal remits the matter to the Respondent to forthwith calculate and pay the Applicant disability support pension from that date.

I certify that the 84 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Member

Signed: H Sim .....................................................................................

Associate

Date of Hearing 15 August 2002

Date of Decision 4 October 2002

Counsel for the Applicant Mr M Vincent

Solicitor for the Applicant Ms G Read, Legal Aid Commission of NSW

Advocate for the Respondent Ms M Buckley