Roberts and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2010] AATA 94 (10 February 2010)

Last Updated: 11 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/1792

GENERAL ADMINISTRATIVE DIVISION		)
	Re		HEATHER ROBERTS

Applicant

And

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

Respondent

DECISION

Tribunal

Senior Member A K Britton

Date 10 February 2010

Place Sydney

Decision

1. That part of the reviewable decision made on 6 June 2008 that relates to the refusal of the Applicant’s claim for disability support pension made in respect of carpel tunnel syndrome, is affirmed. 2. That part of the reviewable decision made on 6 June 2008 that relates to the refusal of the Applicant’s claim for disability support pension made in respect of depression and lumbar spondylosis, is remitted to the Secretary for reconsideration, in accordance with the recommendations made at [28] and [39] of these Reasons.

................... ...[SGD]................
Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – related conditions of depression, lumbar spondylosis and carpal tunnel syndrome – whether applicant had a “fully documented, diagnosed condition which has been investigated, treated and stabilised”

LEGISLATION
Social Security Act 1991 (Cth) – ss 94; Schedules 1B
Social Security (Administration) Act 1999. - s 42; Schedule 2

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA

REASONS FOR DECISION

1. Ms Heather Roberts suffers from a number of medical conditions which she claims has rendered her unable to work. In May 2008 she made a claim for disability support pension which was refused. She now applies to the Administrative Appeals Tribunal for review of that decision.
2. Section 94 of the Social Security Act 1991 (Cth) (the Act) provides that a person is qualified for a disability support pension if, among other things, they have a physical, intellectual or psychiatric impairment and a minimum impairment rating as prescribed by the Act. An impairment rating cannot be given unless the claimed condition is “a fully documented, diagnosed condition which has been investigated, treated and stabilised”.
3. In January 2009, a Centrelink Authorised Review Officer decided that while each of Ms Roberts’ claimed conditions — depression, lumbar spondylosis and carpel tunnel syndrome — were permanent, none had been “fully diagnosed, treated and stabilised”. On that basis, it was decided that Ms Roberts did not qualify for a disability support pension.
4. That decision was affirmed on review by the Social Security Appeal Tribunal but on a different basis to the decision made by the Authorised Review Officer. The SSAT concluded that Ms Roberts’ condition of lumbar spondylosis had been “fully diagnosed, treated and stabilised”. However, the Tribunal found that the condition did not meet the requisite level of impairment. The SSAT agreed with the Authorised Review Officer’s assessment that the conditions of depression and carpel tunnel syndrome had not been “fully diagnosed, treated and stabilised”.

LEGISLATIVE FRAMEWORK

5. Section 94(1)(b) of the Act provides that a person qualifies for a disability support pension if, among other things, the person’s impairment is rated at 20 points or more under the Impairment Tables contained in Schedule 1B to the Act. The introduction to the Tables states that they are designed to assess whether a disability support pension claimant “meets an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work”.
6. Paragraph 4 and 5 of the Introduction are central to the determination of Ms Roberts’ claim and for convenience are set out in full:

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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.

7. Paragraph 6 sets outs the factors that must be considered in making the assessment and relevantly provides:

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 assessor 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.
...

CLAIMED CONDITION 1: DEPRESSION

8. The decision made by the Authorised Review Officer to affirm the decision to refuse Ms Roberts’ claim was made on the basis of a job capacity assessment report prepared by Mr Rowan Clifford at the request of Centrelink, together with a number of medical reports that post-dated the claim period.
9. Mr Clifford whose “professional discipline” was described, somewhat unhelpfully, as “other”, prepared his report on the basis of a “file review”. Apart from a report prepared by Ms Roberts’ treating doctor, Dr Chandler, dated 9 April 2008, it is not clear whether any other documents were considered.
10. Dr Chandler’s report took the form of a pro-forma questionnaire. Some of the information he provided is illegible.
11. Dr Chandler provided a diagnosis of “depression” which he characterised as “presumptive” (the questionnaire required the treater to tick one of two boxes: “confirmed“ and “presumptive”). The Secretary’s representative was unable to advise if treaters were provided with any guidance about the meaning of the term, “presumptive”, in the context of the questionnaire.
12. In his report Dr Chandler also provided the following information:

History: long term, started early thirty
Current symptoms: Feels negative, does not want to leave the house, panic attacks, self-destructive behaviour, over eating
Current treatment: [the anti-depressant] Zoloft
Past treatment: Zoloft
Compliance with treatment: very compliant

13. In answer to a request to provide details of any further scheduled or proposed treatment, Dr Chadler wrote:

If necessary may need psychotherapy. [emphasis added]

14. He also stated that he expected the current impact of the condition on Ms Roberts’ ability to function to persist for more than 24 months and for the effect of the condition to remain unchanged over that period.
15. In a Job Capacity Assessment report, Mr Clifford recorded:
    

Treatment details: Onset unknown. Takes Zoloft (antidepressant). This condition is not fully diagnosed, treated and stabilised because the client has not undergone psychotherapy (which has also been identified in TDR as future treatment).

16. Under the heading “Interventions ... identified for this client” Mr Clifford wrote :

Intervention: Psychological counselling
Expected outcomes/improvements: psychotherapy to treat condition

17. In addition to Mr Clifford’s report, the Authorised Review Officer had before her a number of reports that were prepared after the claim period. These included a medical certificate prepared by Dr Chandler in early December 2008, in which he recorded a diagnosis of depression that was “likely to persist”; a referral made by him to the Depression Clinic of the Black Dog Institute; and a patient assessment form in which he identified Ms Roberts’ treatment as “Zoloft and group therapy” with the goal of that treatment being to “improve symptoms of depression”.
18. In these proceedings and those before the SSAT, Ms Roberts confirmed that she had been taking Zoloft for about six years prior to her claim for disability support benefit. She gave conflicting evidence about when she had been referred for assessment and counselling. With her consent, after the hearing, the Tribunal contacted Dr Chandler, who advised that he had not referred Ms Roberts for assessment, counselling or similar programmes in relation to her condition of depression prior to December 2008. Both parties declined the invitation extended by the Tribunal to comment on this information.

FINDINGS AND CONCLUSIONS

19. In determining whether Ms Roberts’ is qualified for disability support pension , the relevant period is the 13 weeks following the date of her initiating claim, namely, from 9 May 2008 to 8 August 2008: s 42 and Schedule 2 of the Social Security (Administration) Act 1999. Her claim is to be assessed with reference to the state of her claimed condition in that period. Any subsequent change in her health is irrelevant, “... except insofar as it may cast light on the position at the relevant time”: Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA at [1] per Gyles J.
20. As a first step, it is necessary to decide whether Ms Roberts had a “fully documented, diagnosed condition which has been investigated, treated and stabilised”.
21. Diagnosis Mr Clifford’s conclusion that a diagnosis of depression had not been made was apparently based on Dr Chandler’s characterisation of his diagnosis as “presumptive”. The meaning of this term is unclear. More to the point, it is unclear what meaning Dr Chandler intended to convey. It could be that he meant that his diagnosis had not been confirmed by specialist opinion, or alternatively, that he was unsure of the diagnosis. The latter sits at odds with his actions in prescribing anti–depressant medication over an extended period; recording symptoms consistent with a diagnosis of depression; and, providing an opinion that the impact of the condition on Ms Roberts’ ability to function was likely to remain unchanged for the ensuing 24 months. Coupled with his subsequent recorded diagnosis, it seems more likely that he meant that the diagnosis had not been confirmed by specialist opinion.
22. Treatment A finding that a claimed condition has been “fully treated etc” requires consideration of, among other things, past, current and future treatment and:

Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.

23. There is nothing before me to indicate that Ms Roberts’ prescribed treatment, that is, anti-depressant medication, was inappropriate and nor has this been suggested.
24. Mr Clifford’s opinion that Ms Robert’s condition had not been fully treated etc, an opinion adopted by all subsequent decision-makers, rests on the fact that Ms Roberts not undergone psychotherapy. Mr Clifford understanding that that Dr Chandler had recommended this as a form of treatment, in my view, is a misreading of his report. It will be recalled Dr Chandler wrote, “If necessary may need psychotherapy” [emphasis added]. At its highest, this indicates that Dr Chandler believed that this form of treatment might be needed in the future. It does not indicate that he believed it was warranted on the basis of Ms Robert’s condition as it then presented.
25. If independently of Dr Chandler, Mr Clifford formed the view that psychotherapy was a “suitable intervention”, he did not disclose the basis for that opinion in his report.
26. Dr Chandler’s report does not address whether he believed medical treatment in addition to anti-depressant medication, would be likely to result in a significant functional improvement in his patient’s condition over the ensuing two years. Somewhat surprisingly given the importance of this issue to the assessment of eligibility for disability support pension, the Questionnaire did not ask him to provide an opinion about this issue.
27. It does not follow, as has been suggested for the Secretary, that Dr Chandler’s decision to refer Ms Roberts for assessment in December 2008, demonstrates that when he prepared his original report he believed that reasonable medical treatment would have resulted in a material improvement in her condition. His decision to make that referral could have been made for any number of reasons, including a deterioration in Ms Roberts’ condition in the intervening period. Nor does the opinion of other professionals, reached some time after the claim period, that Ms Roberts might benefit from further treatment establish that, throughout the claim period, it could have been foreseen that a significant functional improvement was likely to result if she received further treatment.
28. In my view, on the material before me it is not possible to reach any concluded view about whether Ms Roberts’ condition was fully diagnosed, treated and stabilised. It is uncontroversial that she suffers from a significant disability and her functional capacity is limited. Because of a combination of factors which include the nature and severity of her condition, Ms Roberts is not well placed to obtain appropriate medical evidence to support her claim. In these circumstances, the appropriate course in my view is to arrange for further investigations to be undertaken by a person with suitable qualifications in the area of psychiatry or psychology and, if considered appropriate, for further enquires to be made of Dr Chandler. That course is consistent with par [4] of the Tables which states:

...The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. [emphasis added]

29. In making this decision, I am mindful of the practical difficulties in making a retrospective assessment. Nonetheless given the circumstances in my view it would be inappropriate to make a decision adverse to Ms Roberts on the basis of the shortcomings in the supporting material.
30. For these reasons I have decided to set aside the decision to refuse Ms Roberts’ disability support pension, in so far as it relates to her claimed condition of depression, and remit the matter to the Secretary for reconsideration in accordance with par [28] of these Reasons.

CLAIMED CONDITION 2: LUMBAR SPONDYLOSIS

31. It is not in issue that Ms Roberts suffers from lumbar spondylosis.
32. In his report of 9 April 2008, Dr Chandler described the symptoms of this condition as “low back pain radiating to both legs”. He noted that the condition had been and was being treated with analgesics and that this would continue. In his opinion the condition was likely to deteriorate over the following two years and that the current impact on her ability to function was likely to persist for the same period.
33. Mr Clifford was of the view that “physiotherapy and exercise physiology” represented “suitable interventions”. His report does not indicate if he believed if adopted, these “interventions” would be likely to lead to significant functional improvement. His opinion that the condition had not been fully diagnosed, treated and stabilised, was apparently made because the identified interventions had not been carried out.
34. Shortly before Mr Clifford conducted his assessment, Ms Roberts’ work capacity was assessed by Ms Lorraine Chan at the request of Centrelink. Like Mr Clifford, she described her qualifications as “other”. Unlike Mr Clifford, she found that the condition of lumbar spondylosis had been “fully diagnosed, treated and stabilised”.
35. Ms Chan’s assessment was apparently carried out for the purpose of determining Ms Roberts’ continuing eligibility for Newstart allowance (Ms Chan’s report, 1 May 2008, p 1). Ms Chan recorded that her findings were based on her observations during assessment, as well as on medical evidence which apparently included Dr Chandler’s report.
36. Ms Chan recommended a number of “interventions” for Ms Roberts’ depression and carpel tunnel syndrome, but none for lumbar spondylosis.
37. The Secretary points out that Ms Chan’s assessment was provided for a purpose distinct from Ms Roberts’ claim for a disability support pension and that the SSAT erred in relying on it. That the report was prepared for a different purpose does not detract from its probative value.
38. From the information provided, it is not possible to say whether any of the interventions recommended by Mr Clifford constitute reasonable medical treatment which if adopted would be likely to lead to significant functional improvement over the following two years. Dr Chandler has not provided an opinion about this issue and neither Ms Chan nor Mr Clifford were available to give evidence.
39. In my view, the appropriate course in these circumstances is to remit the matter to the Secretary for reconsideration. I recommend that an appropriately-qualified person be asked to provide an opinion on the adequacy of Ms Roberts’ past, current and future treatment and whether any further reasonable medical treatment would have been likely to lead to significant functional improvement. For the purpose of providing that opinion the relevant period is the claim period. I also recommend that Dr Chandler be invited to comment on these issues.

CLAIMED CONDITION 3: CARPEL TUNNEL SYNDROME

40. In his report, Dr Chandler nominated carpel tunnel syndrome as a diagnosed condition from which Ms Roberts suffered. He categorised it as a condition which was “generally well managed and caused minimal or limited impact on her capacity to function”. He recorded that the condition to date was untreated. While not clear from Dr Chandler’s report, Ms Chan’s report indicated that he had discussions with Ms Roberts about various options to alleviate the symptoms of carpel tunnel syndrome.
41. I am satisfied that the condition could not be said to be fully treated or stabilised. Even if this was not the case, Dr Chandler’s opinion makes clear that in its current form the condition has not resulted in any material functional incapacity and therefore would not attract an impairment rating under the Tables.
42. For these reasons I have decided to affirm this part of the reviewable decision.
    

15 January 2010

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton.

Signed: ..............................[SGD]..........................................

Associate to Senior Member Britton

Date/s of Hearing: 15 January 2010

Date of Decision: 10 February 2010

The Applicant appeared in person.

Solicitor for the Respondent: Centrelink Legal Services