Higgins and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 339 (29 April 2010)

Last Updated: 10 May 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISON [2010] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1013

GENERAL ADMINISTRATIVE DIVISION		)
	Re		KEITH HIGGINS

Applicant

And

SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

ORAL DECISION

Tribunal

M J Carstairs, Senior Member Associate Professor J B Morley, RFD, Member

Date 29 April 2010

Place Brisbane

Decision

The Tribunal sets aside the decision under review and substitutes the decision that Keith Higgins was qualified for disability support pension with effect from 22 October 2008.

...................[Sgd]...........................
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – condition treated and stabilised – decision set aside.

Social Security Act 1991 (Cth), s 94(1)(b), Schedule 1B

WRITTEN REASONS FOR ORAL DECISION

7 May 2010

M J Carstairs, Senior Member Associate Professor J B Morley, RFD, Member

1. Keith Higgins claimed disability support pension in October 2008 (“the first claim”). That claim was rejected. However Mr Higgins now receives pension as a result of a successful second claim which he made in September 2009. With his present application for Tribunal review, Mr Higgins seeks review of the rejection of the first claim, which, if successful, would see him paid for the some eleven months between the first and second claims.
2. The parties were able to agree about a number of facts crucial to the determination of the matters in dispute. The Secretary conceded that if Mr Higgins achieved the necessary level of impairment at the time of the first claim, then he had at that time a “continuing inability to work”.[1] The necessary level of impairment is 20 points[2] worked out under the “Tables for the Assessment of Work Related Impairment for Disability Support Pension”[3] (“the Tables”).
3. The applicant’s solicitor, Mr P Earl, conceded that at the time of Mr Higgins’ first claim, his back condition could not be rated greater than 10 points. This was an important concession, as the delegate determining the second claim was satisfied that Mr Higgins’ back condition deteriorated between the two claims, such as to warrant an increased rating with respect to his back from 10 to 20 points. (That is, the granting of the second claim rested upon this deterioration.) This meant that to succeed with the first claim, Mr Higgins needed to show that some other condition, previously not rated under the Tables, ought to have been rated.
4. Mr Higgins suffers with a depressive disorder. Previous decision-makers had concluded that this condition could not be rated.
5. Mr R Hamilton, for the respondent, conceded that if Mr Higgins’ depressive disorder could be rated, it would be at the level of 10 points under Table 6. However, achieving that rating depended upon a finding that the condition was “treated” and “stabilised”—see below. In other words, there was agreement between the parties that if the depressive disorder could have been rated at the time of the first claim, Mr Higgins would have been impaired to the level of 20 points by a combination of his back condition and depressive disorder. In those circumstances he would have been entitled to pension.
6. For a condition to be taken into account in the rating exercise under the Tables, the condition must be “diagnosed”, “treated” and “stabilised”. This is the essence of what is meant by a condition being “permanent” in this context. The respondent accepted that the depressive condition had been “diagnosed”, but submitted that earlier reviews correctly concluded that the condition was not “treated” and/or was not “stabilised”.
7. Mr Higgins’ case however was that his depressive disorder had been diagnosed in the 1990s when he was referred for psychiatric treatment and placed on medication. Various general practitioners have continued to prescribe these medications and Mr Higgins continues to take them. Mr Higgins therefore maintains that his depressive condition is longstanding, that he has obtained treatment of different kinds for it, and that his depression is as stable as can reasonably be expected taking into account its duration and treatment.
8. At the end of the hearing we announced our decision, which was to set aside the decision under review and substitute the decision granting Mr Higgins disability support pension on the first claim. We gave brief reasons and told the parties that written reasons would be provided to them. As will be seen from the reasons set out below, we were satisfied that that Mr Higgins’ depressive disorder was permanent at the time of the first claim, could be rated, and, accepting the parties submissions in this regard, was appropriately rated at 10 points under Table 6.

THE TABLES.

9. The Introduction to the Tables sets out a number of rules for the rating exercise which is to be carried out. It is firstly helpful to refer to these rules. In doing so we adopt the wording set out in the Introduction:

• A rating can only be assigned if impairment is “permanent” (taken as lasting for more than two years). To be “permanent”, the condition must have been fully diagnosed, treated and stabilised so that it is unlikely there will be any significant functional improvement over two years.
• Impairments that do not satisfy such criteria are by definition considered “temporary” and should not be rated under the Tables. Medical judgement is usually required to evaluate the available medical evidence and determine if the permanence criteria have been satisfied. The question that needs to be answered generally is whether anything (e.g. further time or therapeutic intervention) is likely to result in significant functional improvement within the next two years.
• What has to be considered is whether the person has received optimal medical management and all reasonable treatment for the condition. This can be taken to include therapy aimed at restoring mental or physical functional stability. The stability of a condition and the permanence of its impairment may depend on whether reasonable treatment has been undertaken.
• Reasonable treatment is:
  1. treatment that is feasible and accessible (i.e. available locally at a reasonable cost);
  2. treatment or procedure that is of a type regularly undertaken or performed;
  100. treatment that has a high success rate and where substantial improvement can be reliably expected;
  4. treatment that is of a low risk nature.
     
• For a condition’s impairment to be fully stabilised, it must be considered that with or without treatment, significant functional improvement is unlikely to occur within the next two years. Medical evaluation is required to assess the prognosis for further improvement within the next two years and factors such as the natural history of the condition, response to treatment and expected rate of recovery will need to be considered.
• The Introduction to the Tables adds the commentary that a condition which is fluctuating and has a variable course with intermittent episodes of exacerbation (as we note is the case here with Mr Higgins’ depressive disorder) may still be considered stable if it is being optimally managed.

THE EVIDENCE

10. At the time of the first claim Mr Higgins, who now lives in northern New South Wales, was living in Churchable, a smallish town in the Lockyer Valley about an hour’s drive from Brisbane. He was attending his general practitioner, Dr K Raj, at a nearby town, Lowood. In October 2008, Dr Raj referred Mr Higgins under a “GP Mental Health Care Plan” to a visiting psychologist, Ms H Waters, who attended at Lowood for six sessions of treatment which started in November 2008 and were proposed to end in January 2009. Referral by a general practitioner was one precondition to satisfy Medicare’s coverage of this treatment. Mr Higgins told Ms Waters at the first session that he had been experiencing symptoms of depression “on and off for years”.[4] Her assessment of his mental state, in accordance with the Diagnostic and Statistical Manual of Mental Disorders, 4th edition, was that he suffered from “Major Depressive Disorder, Recurrent”.
11. In one report, Ms Waters stated that Mr Higgins would benefit from at least two further treatment sessions at the end of the proposed six sessions. However, she was concluding her services at the Lowood Centre and would not be there from March 2009. In her oral evidence at the hearing, Ms Waters said that Mr Higgins was also seeing a support person on a monthly basis.
12. Ms Waters had provided a further medical report on Mr Higgins’ case, dated 28 April 2009[5] which, we note, was after the Social Security Appeals Tribunal hearing. In that report, Ms Waters stated that a Mental Health Plan usually involves six focussed psychological treatment sessions; further sessions can be provided if the general practitioner agrees that such treatment might be helpful. She said that she applied a cognitive behavioural approach focussed on psychoeducation for Mr Higgins’ depression.
13. In her oral evidence at the hearing, Ms Waters confirmed (as she had indicated in her first written report) that she believed she had provided appropriate treatment to Mr Higgins, but Mr Higgins had not obtained significant benefit from it. She observed that he diligently attended all sessions, turning up on time to all his appointments, and participating with what she regarded as a good understanding of the techniques involved. However Ms Waters said that Mr Higgins just did not seem to show results. She was unable to overcome his chronic apathy, which she pointed out was a primary symptom of depression. Ms Waters acknowledged that she had recommended a further two sessions, however she said she did not believe that any further sessions would have significantly improved his symptomatology. It seemed from her evidence to us that her motive in making the recommendation was that she was worried about him: he had a pending court case and she was concerned about self-harm. In other words the recommendation was not founded on a belief that there were further gains to be made. We do not accept Mr Hamilton’s submission that the possibility of two further sessions is proof that the condition was not fully treated and stabilised.
14. Ms Waters said she believed Mr Higgins’ condition was stable at the relevant time. She anticipated that Mr Higgins would continue to experience depression for at least the next two years. When she expressed this view, she said she took into account that his depression was being maintained by a number of factors in his life including financial stress, lack of family support and chronic pain. She also noted some possible contribution being made by his alcohol dependence, although Mr Higgins maintained to us that he has never been adversely affected by alcohol, having partaken since his teens. He observed that in recent times he has cut down his alcohol intake significantly and feels no better for doing so.
15. Ms Waters stated that research recognises that a person who has had two episodes of depression has a 70% chance of having a third episode, and that individuals who have had three episodes have a 90% chance of having a fourth episode. She said Mr Higgins has experienced a minimum of three depressive episodes suggesting, she said, that even if the episode in 2008/09 remitted, he had a 90% chance of having a fourth depressive episode at some time.
16. Ms Waters ventured the opinion that it was possible that long-term psychotherapy would have better served Mr Higgins. She noted, however, that such treatment is extremely expensive and hard to find. She observed that it was difficult to contemplate what else Mr Higgins might have done by way of appropriate “treatment”. She also noted that her views of his condition and the stage that it had reached were largely in accord with the opinions expressed in a report provided by Dr B Pushdary, the Psychiatric Registrar at the Aged Care and Mental Health Unit, Ipswich Hospital.[6]
17. Mr Higgins told us something about the circumstances in which he came to be attending at Ipswich Hospital. From what he told us, his encounters there proved to be less than successful. Mr Higgins said that he had pressed upon his general practitioner, Dr Raj, that there must be some cure available for his depression and that is how his referral came about. However when he attended at the first appointment he was told that Ipswich Hospital provided more by way of a crisis centre than what Mr Higgins was seeking. Some sort of dispute must have arisen between Mr Higgins and staff there, because he was told he did not need a psychiatrist and that he needed to seek anger management. Security was called and Mr Higgins was asked to leave.
18. Whatever may have transpired with the Ipswich Hospital appointments, we do have the advantage of the written report of Dr Pushdary, commenting on his assessment of Mr Higgins, with reference to matters relevant to “treatment” and “stability”. This report is the subject of a confidentiality order, but we are able to make the general observation that its contents were largely in accord with views expressed by Ms Waters in her report. Ms Waters in her oral evidence pointed out as much: she observed that their respective diagnoses were consistent and the thinking was along the same lines.
19. Important conclusions to be derived from Dr Pushdary’s report were that Mr Higgins was generally settled; no follow up appointments were made; and Dr Pushdary had reminded Mr Higgins to keep taking his prescribed treatment (Efexor).
20. As to his compliance with medication, Mr Higgins said that he was first prescribed antidepressants in the 1990s by a psychiatrist whose name he could not recall. In about 2003, when he experienced a subsequent bout of depression, his then treating doctor, Dr R Ratnam, placed him on Efexor. Mr Higgins said that he has continued to take this medication, it being prescribed to him over the years by different general practitioners. Mr Higgins said he would persist taking this medication because he is conscious of what happens if he does not. He had ceased taking another prescribed treatment—Zyprexa—because of its adverse side-effects. However he pointed out in his oral evidence that he did not simply stop taking it: he complained of the side-effects and his general practitioner took him off it.
21. We note there were comments concerning Mr Higgins’ non-compliance with medication regimes. However we accept Mr Higgins’ evidence that he routinely takes his dosage of Efexor on a daily basis. He acknowledged that that he does not always take his asthma medication when his asthma is asymptomatic, and no longer takes Zyprexa.
22. So, taking into account the matters that we are required to address when deciding whether the condition is “treated” and “stabilised”, we concluded as follows:
    • Mr Higgins has a long-standing depressive disorder, dating from the 1990s;
    • He has sought treatment for that disorder, which ongoing treatment includes medication. He takes the medication. His willingness to undertake treatment is reflected in his active search for psychological and psychiatric help;
    • At the time of his first claim or within three months of it, Mr Higgins undertook other relevant treatment, by way of a course of cognitive behavioural therapy with Ms Waters. On her account of that treatment, Mr Higgins participated willingly but it had little effect;
    • The evidence before us provides sufficient medical evaluation in the reports of Ms Waters and Dr Pushdary to enable us to be satisfied that no functional improvement can be expected, taking into account reasonable treatment. Mr Higgins has undertaken relevant medical interventions and he continues to take his medication. Medical opinion confirms that the condition is stable.
23. Taking into account the various concessions made by the parties and referred to at the start of these reasons, we are satisfied that Mr Higgins met the qualification criteria for disability support pension at the time of his first claim. His back condition attracted a rating of 10 under Table 5.2, and his depressive disorder a rating of 10 under Table 6. Accordingly that claimed will be granted with effect from 22 October 2008.

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member, and Associate Professor J B Morley, RFD, Member.

Signed: ...................[Sgd]...............................................

Mátyás Kochárdy, Associate

Date of Hearing 29 April 2010

Date of Oral Decision 29 April 2010

Date of Written Reasons 7 May 2010

Solicitor for Applicant Mr P Earl, Reardon and Associates

Advocate for the Respondent Mr R Hamilton

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[1] Section 94(1)(c) of the Social Security Act 1991.
[2] Section 94(1)(b) of the Social Security Act 1991.
[3] Social Security Act 1991: Schedule 1B.
[4] T15, page 91.
[5] Exhibit A2.

[6] Exhibit A3: Report dated 24 July 2009.