Editors --- "Disability support pension: fully diagnosed, treated and stabilised and insufficient medical evidence" [2013] SocSecRpr 8; (2013) 15(2) Social Security Reporter, Article 1

• ABDULRAHMAN and SECRETARY to DSHCSIA
• Background
• The issues
• Issue 1: Whether Abdulrahman’s depressive disorder was a permanent condition?
• Issue 2: Can a rating be assigned?
• Issue 3: Whether the other medical conditions could be allocated a rating under the Impairment Tables?
• Formal decision

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Disability support pension: fully diagnosed, treated and stabilised and insufficient medical evidence

ABDULRAHMAN and SECRETARY to DSHCSIA

(2013/0151)

Decided: 20th March 2013 by A.K. Britton

Background

Abdulrahman sought review of the decision made by a Centrelink Authorised Review Officer and affirmed by the Social Security Appeals Tribunal, to reject his claim for disability support pension (DSP). While it was not disputed that Abdulrahman suffered from a major depressive disorder, diabetes and back pain, the Secretary contended that none of these conditions could be assigned an impairment rating because they had not been ‘fully stabilised and treated’ and furthermore were not permanent.

The issues

The main issues before the AAT were:

1. Whether Abdulrahman’s depressive disorder was a permanent condition?

2. Whether a rating could be assigned to the depressive disorder?

3. Whether the other medical conditions could be allocated a rating under the Impairment Tables.

Issue 1: Whether Abdulrahman’s depressive disorder was a permanent condition?

The AAT noted the impairment must be assessed under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Tables), contained in Schedule 1B of the Social Security Act 1991 (the Act). Before a medical condition could be said to be permanent, it must have been fully treated and stabilised. In determining whether a condition is fully diagnosed, treated and stabilised, the Tables instruct that it is necessary to 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 two 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.

The AAT noted that Abdulrahman’s eligibility for DSP had to be assessed by reference to the 13-week period following the date he made his claim, that is, 16

September 2011 to 16 December 2011. The AAT said that: ‘Any change in Mr Abdulrahman’s health after this period 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 404; (2007) 158 FCR 252 at 252 per Gyles J’.

The Secretary contended that the depresive condition was neither fully treated nor stabilised, pointing to evidence of some changes that had been made to Abdulrahman’s prescribed medication, in early 2012.

The AAT rejected the Secretary’s submission that due to changes in Abdulrahman’s medication the condition could not be regarded as fully treated stating that:

There is nothing in the Introduction to the Tables to support the proposition that a condition can only be considered to be fully treated if no changes are made to the treatment regime. In my opinion, the term “fully treated”, as used in the Introduction, is intended to convey that the person has received all reasonable available treatment at the relevant point in time, so as to indicate that as far as practicable, the condition has been stabilised.... It is a matter of common knowledge that in treating chronic conditions, adjustments to treatment is sometimes necessary, in response to, among other things, the progress of the condition and the patient’s circumstances. Whether such a change means that the condition could not be considered to be fully treated or stabilised during the claim period requires consideration of, among other things, the duration and type of the condition, the history of treatment provided, and the nature of, and reason for, the variation to the treatment. (Reasons for decision, para 14)

The Tribunal found that the changes that were made to the medication which were an increase in dosage of Lexapro at the commencement or possibly shortly before the claim period and a trial change to medication shortly after the claim period which had been quickly abandoned did not indicate that the condition was not fully treated. Coupled with the evidence of regular treatment by a psychiatrist and psychologist, the Tribunal stated that it was satisfied that during the claim period, that this condition had been fully treated.

The Tribunal also rejected the Secretary’s submission that the references in the available medical evidence to some improvement in Abdulrahman’s condition indicated that the condition had not fully stabilised or that it was likely that there would be a significant functional improvement, over the ensuing two years. In the Tribunal’s view,

....it is a misreading of the Tables to interpret the criterion ‘fully stabilised’ as requiring that the person’s symptoms must be static or remain unchanged. It is a matter of common knowledge that suffers of chronic psychiatric conditions sometimes experience a variation in mood and symptoms. That they report, or present as, having ‘good days’ does not necessarily mean that there is, or likely to be, significant functional improvement over the next two years. Whether this will be so, is a matter of fact and degree, to be determined on a case-by-case basis. (Reasons for decision, para 16).

The Tribunal decided that the weight of the evidence revealed that there had been no material change in Abdulrahman’s condition since the date of claim. The Tribunal further found that based on the available evidence that the condition was ‘permanent’ for the purposes of the Tables.

Issue 2: Can a rating be assigned?

The Tribunal turned its consideration to the relevant table, Table 6 and in particular its instruction that if there was insufficient clinical information available, a current or recent specialist report should be obtained.

After considering the available evidence, the Tribunal concluded that there was insufficient clinical information to rate Abdulrahman’s condition. In particular this was due to there being no information about the opinion held by the treating psychiatrists, or the extent to which, if any, Abdulrahman’s condition had reduced his functional capacity and made him unfit to work.

Although the Tribunal expressed its reluctance to go down this path, it ultimately determined that the preferable decision was for the decision to be remitted to the Secretary for determination, after obtaining an opinion from Abdulrahman’s treating psychiatrist regarding the depression or, if not practicable, another psychiatric nominated by the Secretary. The Tribunal explained this decision on the basis of Abdulrahman’s lack of ability to obtain the necessary information and without that information it simply was not possible for an informed decision to be made.

Issue 3: Whether the other medical conditions could be allocated a rating under the Impairment Tables?

The Tribunal decided that the diabetes condition was not fully treated and stabilised on the basis of the GP’s evidence that further treatment, including review by an endocrinologist, was necessary. The Tribunal further found that the back condition could not be said to be fully investigated, treated or stabilised as the cause of the pain had not been identified and a home exercise regime which had been part of the recommended treatment plan had not been followed.

Formal decision

The AAT set aside the decision under review and remitted it to the Secretary under s.42D of the Administrative Appeals Tribunal Act 1975 for reconsideration, after obtaining an opinion from Abdulrahman’s treating psychiatrist or, if not practicable, another psychiatrist nominated by the Secretary about the following matters:

(i) The appropriate rating of Abdulrahman’s major depressive disorder as measured under Table 6 of the Tables;

(ii) If the psychiatrist was of the opinion that an impairment rating of at least twenty should be assigned, whether Abdulrahman had a continuing inabilityto work because of that impairment within the meaning of s.94(2), 92(3) and 93(5) of the Act; and

(iii) If so, whether the impairment was of itself sufficient to Abdulrahman from undertaking a training activity during the period 16 September 2011 to 16 September 2013; and

(iv) If not, whether such activity was unlikely (because of the impairment) to enable Abdulrahman to do any work independently of a program of support within the period 16 September 2011 to 16 September 2013.

The Secretary was to provide the expert with examples of, and details, about relevant ‘training activities’ and ‘programs of support’ to enable the above assessment to be properly made in relation to Abdulrahman. [G.B.]