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Social Security Reporter |
Disability support pension: whether conditions investigated, treated and stabilised in absence of further hypothetical third party investigations; investigative role of decision maker
(Federal Court of Australia)
Decided: 22nd March 2007 by Gyles J.
In contention was the application of s.94 of the Social Security Act 1991 (the Act) which deals with the conditions for the grant of a disability support pension (DSP). The threshold criteria laid down by s.94for the grant of a DSP is that ‘the person’s impairment is of 20 points or more under the Impairment Tables’. Schedule 1B to the Act sets out the tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables). The Introduction to the Tables includes the following:
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.
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 i.e., 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.
Condition 1 – Depression and Anxiety
Harris’s general practitioner had completed and signed a treating doctor’s report at the time of the original claim for DSP in 2004. Two of the diagnoses were depression and anxiety in respect of which the current symptoms were mood changes and the treatment was counselling. The condition was described as long term and deteriorating. Harris had been prescribed Zoloft (an antidepressant medication) for depression by her then general medical practitioner in 2004 but had discontinued its use after one or two months because of its side effects upon her. She had been recently prescribed Zoloft again at the time of the hearing before the AAT.
For the purposes of the appeal to the AAT, a report dated 9 January 2006 was obtained on behalf of Harris from Dr Mark Burns who described himself as an occupational physician. In commenting upon depression he wrote:
I note, though, that she has had no psychological or psychiatric assessment. She has not been referred off for any further treatment and is currently on no medication. It appears that this condition is currently under-diagnosed and under-treated.
The AAT found that Harris was severely disabled by several conditions including depression and it accepted the evidence that she was still depressed approximately two years after the initial diagnosis.
However, the AAT said:
The difficulty in having regard to the applicant’s depression is that adverted to by Dr Burns, namely that she has never had any psychiatric or psychological involvement in that condition.
Gyles J. accepted the force of criticisms levelled by Harris at the merits of that decision – namely the rejection of the contemporaneous opinion of her treating doctor and the acceptance of the views of Dr Burns, albeit that Dr Burns had no particular qualifications in the field. However, Gyles J. observed that was not an error of law and there was no appeal to the Federal Court as to the merits of the AAT decision.
Condition 2 – Chronic Pain
Dr Burns had assessed Harris using Table 20 of Schedule 1B, the preamble to which was as follows:
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system-specific Tables, Table 20 can be used. Double-counting of a particular loss of function, by the use of more than one Table, must be avoided.
Dr Burns assessed Harris as coming within the following description and so rated at 20 points:
More severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.
The AAT dealt with this aspect very briefly as follows:
Similar difficulties arise for Harris’s chronic pain syndrome [as for depression]. Apart from the possibility it is interconnected with her anxiety/depressive state, there has been no intervention such as reference to a pain clinic.
We find therefore that Harris cannot be assessed under Table 20 as her chronic pain has not been diagnosed or treated much less stabilised.
The initial treating doctor’s report diagnosed neck pain and shoulder pain which was being treated by NSAID and also pain and numbness as symptoms of the carpal tunnel syndrome. In each case the condition was described as long term. The evidence showed Harris was taking anti-inflammatories and analgesics for pain continually from at least the date of the 2004 claim. Dr Burns assessed her chronic ongoing pain in both upper limbs as 20 points by applying Table 20 rather than limiting consideration to the effect upon the limbs concerned under Table 3.
Gyles J. could not identify a source for the AAT finding that chronic pain has not been diagnosed or treated much less stabilized, but thought it appeared to have been based upon a report prepared by a Ms Rachel Shipton, a qualified physiotherapist who held a position as a rehabilitation consultant with the Department. She expressed the opinion that:
Following participation in psychological assessment, participation in a suitable pain management program may assist customer improve pain management and increase activity tolerances.
Ms Shipton gave evidence before the AAT. She said that she considered but rejected assessment under Table 20. No evidence was given as to what was involved in reference to a pain clinic or in a pain management program.
The AAT was satisfied that Harris had a present inability to work and that no vocational training would render her fit to work in any capacity available to her. That finding was contrary to the opinion of Ms Shipton. The AAT had found that Harris was severely disabled, most importantly by chronic pain.
Gyles J. thought the finding by the AAT that the chronic pain had not been diagnosed, treated or stabilised was puzzling. Pain had been diagnosed and treated at the time of the claim in 2004 and it had persisted and was treated for a two year period thereafter. There was a question as to whether the pain should be assessed as an aspect of the relevant portion of the body under Table 3 or as a separate condition under Table 20.However, there was no suggestion in any of the material that the condition was temporary. Referral to a pain clinic was not suggested by any of the medical practitioners and that suggestion did not point to any particular diagnosis or treatment which was required. Thus, there could be no judgment as to whether any treatment fell within clause 6 of the Introduction to the Tables.
Gyles J. found it troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. The AAT should not have rejected the application on that basis.
Gyles J. went on to comment that an applicant for a benefit such as DSP will usually present with a properly application supported by a treating doctor but it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. A decision maker is entitled to make its own investigation of the claim and to form a view adverse to the claimant based upon that investigation and the Departmental procedures and manuals provided for that.
But that, he concluded, was a very different thing from the decision maker rejecting a claim because it speculates that a hypothetical third party might come to an adverse opinion. He thought that was an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit.
Speculation could not be a proper basis for a decision to reject Harris’s claim based upon chronic pain and the same could be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
The AAT stood in the shoes of the Department and was in precisely the same situation as the decision maker. The provisions of s.33 of the Administrative Appeals Tribunal Act 1975gave ample scope for the AAT to arrange investigation of a claim. In any event the decision maker (the Secretary) was bound to use his or her best endeavours to assist the AAT to make its decision (s.33(1AA)).
The AAT did not arrange investigations to test the validity of the speculation about each condition. It should therefore have made a decision based on the material before it without regard to speculation as to what hypothetical third party investigations might disclose.
Gyles J. answered the following self-posed questions of law as follows:
Whether on the proper construction of Schedule 1Bof the Act in considering whether Harris’s chronic pain was a permanent condition, the AAT was required to make material findings of fact that were not made including:
(a) a finding as to whether her pain arose from her diagnosed conditions;
(b) a finding as to whether her treatment to date had been adequate;
(c) a finding as to whether any proposed future treatment could be reliably expected to result insubstantial improvement in her condition; and or
(d) a finding as to whether any proposed future treatment had a high success rate.
Answer: Yes
Whether the AAT failed to correctly identify an issue that it was required to address in order to correctly apply Schedule 1B of the Act, that is whether referral to a pain clinic met the definition of ‘reasonable treatment’ under the Act.
Answer: Yes
Whether on the proper construction of Schedule 1Bof the Act, in considering whether Harris’s chronic pain was a permanent condition, the AAT was required to determine whether or not it was unlikely there would be any significant functional improvement, with or without reasonable treatment, within the next two years.
Answer: Yes
Whether on the proper construction of Schedule 1Bof the Act, the conclusion that Harris’s chronic pain had not been treated was open.
Answer: No
Whether on the proper construction of Schedule 1Bof the Act, the conclusion that Harris’s chronic pain had not been diagnosed was open.
Answer: No
Whether on the proper construction of Schedule 1Bof the Act, the conclusion that Harris’s chronic pain had not been stabilised was open.
Answer: No
Whether on the proper construction of Schedule 1Bof the Act, the conclusion that there had been no intervention in relation to her chronic pain syndrome was open.
Answer: No
Whether, on the proper construction of Schedule 1Bof the Act, the AAT was entitled to reject Harris’s claim with respect to her psychiatric condition on the basis that it considered the nature or severity of the psychiatric disorder was unclear or there was insufficient clinical information available without arranging or ordering a psychiatric report or assessment.
Answer: No
The decision of the AAT was set aside and the matter remitted to the AAT to be dealt with according to law.
[I.T.]
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URL: http://www.austlii.edu.au/au/journals/SocSecRpr/2007/26.html