SOCIAL SECURITY - disability support pension - soft tissue injury - post traumatic stress disorder - not permanent at time of original application - post traumatic stress disorder was not fully documented and stabilised at time of original application - could not be assessed according to the impairment tables - decision under review affirmed

Social Security Act 1991 (Cth) ss 94(1)(a)(b)

Social Security (Administration) Act 1999 (Cth)

1. The applicant, Mr Timothy Coates, suffers from the physical and psychological after-effects of an assault committed against him in October 2002. On 7 July 2004 he lodged a claim for disability support pension. In August 2004 that claim was refused on the grounds that he had not provided a Treating Doctor's Report.

2. That report, from Dr D C Brown, was provided in October 2004 but Centrelink refused the claim again on 10 December 2004, this time on the basis that the impairments that Mr Coates had been identified as suffering from had not been fully diagnosed, treated and stabilised.

3. Mr Coates provided further medical information and Centrelink undertook further medical investigation. Eventually, in August 2005, Mr Coates lodged a further claim for disability support pension which was granted with effect from 25 July 2005.

4. The decision to refuse the original claim was affirmed on internal review in August 2005 (by the original decision maker) and in October 2005 (by an authorised review officer) and by the Social Security Appeals Tribunal on 16 February 2006.

5. Mr Coates now seeks a review of the decision in this Tribunal.

6. By virtue of s 94(1) of the Social Security Act 1991 (Cth) a person is qualified for a disability support pension if, relevantly:

(a)

the person has a physical, intellectual or psychiatric impairment;

(b)

the impairment attracts a rating of at least 20 points under the Impairment Tables that are set out in Schedule 1B of the Social Security Act; and,

(c)

the person has a continuing inability to work.

7. The issue in this case is whether Mr Coates' condition was capable of being rated under those Impairment Tables at the time of the original claim. Thus it is necessary to consider the statutory scheme of the Impairment Tables.

8. The opening paragraph of the Introduction to the Impairment Tables explains that they:

... are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work.

This purpose is sought to be achieved by assigning ratings in proportion to the severity of the impact of the medical condition on normal function.

9. Given the arguments of the parties in the present case it is relevant to extract further passages from the Introduction that deal with the process of rating in these terms:

4. ... For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised.

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.

10. By operation of Clause 4 of Schedule 2 to the Social Security (Administration) Act 1999 (Cth) the matters of qualification for disability support pension are to be considered on the date of lodgement of the claim, viz. 7 July 2004, and for the period of 13 weeks thereafter.

11. What follows seems not to be in issue.

12. In October 2002, whilst Mr Coates was confined in a correctional institution, he was attacked by another prisoner around the head and upper body. He received injuries to his jaw and teeth and bruising to his back, neck, shoulders and upper arms. He received treatment thereafter at various institutions in which he was confined until his release in July 2004, shortly prior to his original application for disability support pension. I will return to the issue of that treatment in greater detail shortly.

13. At the time of his release Mr Coates was receiving medication including Avanza. Avanza, according to the evidence before me, "belongs to the group of medicines known as antidepressants." Mr Coates had a limited supply but was unable to obtain an appointment to see a medical practitioner for some days after his release. When he eventually did see a doctor, the doctor did not prescribe Avanza for him on the basis, according to Mr Coates, that he had managed without them for a number of days. I stress that it is no part of my function to investigate or comment upon the adequacy of the treatment received by Mr Coates at that time, or, indeed, at any other time. I mention this aspect of Mr Coates' treatment because it appeared to have assumed a significance in the minds of Mr Coates, and his mother and stepfather, Mrs Coates and Mr Boylett, who assisted him at the hearing. For reasons that I will explain below I do not regard the matter as being of any particular importance in the context of the issues that I must decide.

14. In any event, shortly after his release Mr Coates made his original application for disability support pension. Understandably, he had difficulty in obtaining a treating doctor's report, one of the procedural requirements of Centrelink for the grant of disability support pension. Eventually, in October 2004, Mr Coates was able to provide a report from his general practitioner, Dr Brown. That report listed only one medical condition, described as "cervical & thoracic spine - soft tissue injury", which had a significant impact on Mr Coates' ability to function. No reference was made by Dr Brown to any psychiatric disorder. Subsequently, in answer to an enquiry from Centrelink, Dr Brown said that he had not been aware that Mr Coates suffered from that condition when he saw him in October 2004.

15. On 20 August 2004 and 12 November 2004 Mr Coates saw Mr Bruce Price, a psychologist employed by Centrelink. Mr Price identified in him symptoms[1] that were consistent with post traumatic stress disorder as a result of the earlier attack on Mr Coates. Mr Price prepared a report in which he concluded (for Centrelink's purposes) that Mr Coates had two conditions - a psychiatric impairment and a cervical-thoracic soft tissue injury that impacted upon Mr Coates' capacity to work but he also concluded that the conditions were temporary in the special sense that that term is used in this context.

16. Mr Coates was seen by a psychiatrist, Dr Robert Gertler, in December 2004, seemingly in connection with proceedings for compensation for victims of violent crime. In his report dated 8 December 2004 (made available to Centrelink on 24 January 2005) Dr Gertler said this:

Mr Coates described symptoms consistent with the diagnosis of a post traumatic stress disorder which is chronic, and which is in my opinion, related to the assault of 9 October 2002. The symptoms of Mr Coates' chronic post traumatic stress disorder include sleep disturbance with nightmares of a violent nature, excessive sweating associated with those nightmares, hyper-reactivity and hypervigilance, depressed mood, social withdrawal, and irritability with easy loss of temper. These symptoms are consistent with the diagnosis of a chronic post traumatic stress disorder which is a recognized psychiatric condition. They are in my opinion, moderately to severely disabling. They restrict his ability to work in the general workforce and appear to be firmly entrenched.

He would benefit from specific counselling to help him overcome his chronic post traumatic stress disorder. The counselling should be done by a person experienced in the management of trauma; Mr Coates may also require further antidepressant medication.

17. Then in June 2005 Mr Coates was seen by Dr Black in relation to the soft tissue injury. Dr Black referred to a "significant impairment of Work Capacity ... related to his neck and back conditions" and continued:

He requires ongoing physiotherapeutic and medical treatment and MRI scanning of his neck and back would appear to be reasonable given his ongoing disabling neck and back symptoms.

Dr Black expressed the view that Mr Coates condition "would automatically make him a candidate for obtaining a Disability Support Pension" although the process of reasoning leading to that conclusion is not apparent.

18. Thereafter a report was obtained from Dr M L Greacen dated 13 August 2005. Dr Greacen concluded that Mr Coates had two conditions, a soft tissue damage and post traumatic stress disorder, which each warranted a rating of 10 points under the Impairment Tables. On the basis of that report Mr Coates was granted disability support pension from 25 July 2005.

19. The issue for determination is whether Mr Coates was qualified for disability support pension at the time of his original application, 7 July 2004, or within 13 weeks of that date.

20. The Secretary concedes that Mr Coates satisfies s 94(1)(a) at that time, that is, that he had an impairment constituted by the soft tissue injury and post traumatic stress disorder. The Secretary submitted, however, that s 94(1)(b) was not satisfied because these conditions were not capable of attracting a rating because they could not be regarded as permanent (in the relevant sense) at the time. That is, the Secretary submits, it was not possible to assign a rating because neither condition was "a fully documented, diagnosed condition which had been investigated, treated and stabilised" as at July 2004.

21. It is, I think, important to realize that "temporary" is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.

22. It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.

23. Mr Coates' evidence was that the condition of post traumatic stress disorder had been diagnosed by a number of doctors within the correctional system. I am unable to accept that that is so.

24. I have a report from Dr Baguley who saw Mr Coates in the Junee Correctional Centre in February 2003. At that time, some four months after the assault, Mr Coates "was distressed and not coping with poor sleep and anxiety persisting from that incident." Dr Baguley prescribed Avanza to assist with sleep and to alleviate some of the distress. In relation to post traumatic stress disorder Dr Baguley said, in a report dated 30 June 2006:

It was probably too early to define his state as PTSD at that time, and I do not have the necessary expertise to make this diagnosis. However if his symptoms persisted until he was seen in 2004 then this diagnosis is tenable, and his symptoms then would clearly be related to the subsequent diagnosis of PTSD.

25. I have, as well, the medical discharge summary provided to Mr Coates on his release from the correctional centre in June 2004. That shows a diagnosis of "depression" and discharge medication as Avanza 30 mg. Reliance was placed by Mr Coates upon the fact that Avanza had been prescribed for him however whilst I am prepared to assume, favourably to Mr Coates, that Avanza may be prescribed for post traumatic stress disorder, the evidence before me does not support the proposition that it is only prescribed in such circumstances such that I should infer a diagnosis of post traumatic stress disorder from the mere fact of Avanza having been prescribed. The evidence before me is that Avanza is an antidepressant which alleviates depressed mood.

26. As I have already noted, on his attendance upon a medical practitioner on discharge Mr Coates was not prescribed Avanza in circumstances which lead him to be critical of that practitioner. Whether the practitioner was right or wrong on matters of clinical judgment I am not able, or required to decide, but I do not regard the failure to prescribe Avanza as touching upon the question that I have to decide which is whether then condition of post traumatic stress disorder was documented and diagnosed in July 2004 (or the 13 weeks thereafter).

27. After the hearing Mrs Coates forwarded a further letter by way of submission. With the agreement of the representative of the respondent I have had regard to the submission which points out that on the occasion of this attendance upon Dr Brown he apparently declined to prescribe Avanza. Mrs Coates asks, rhetorically, whether this ought be taken as indicating a view by Dr Brown that the earlier treatment in gaol had stabilized the condition such that no further treatment was necessary. Given the evidence that Dr Brown was unaware of any condition of post traumatic stress disorder it seems to me to be impossible to conclude that he regarded the condition as stabilized; rather, as it seems to me, that merely confirms the absence of a diagnosis of post traumatic stress disorder at that time.

28. In my view it is significance that there is no evidence (that I accept) of any diagnosis of post traumatic stress disorder at any time until Mr Price made the tentative diagnosis in November 2004. And, absent a diagnosis until that time, it follows that there could be no question that the condition was documented or stabilised.

29. In my view the condition of post traumatic stress disorder was not capable of attracting a rating under the impairment tables at the time of Mr Coates' original application in July 2004 (or in the period of 13 weeks thereafter).

30. It is not necessary, in light of this conclusion, to consider whether the same was true of the other condition, the soft tissue injury. That too was the subject of additional submission from Mrs Coates.

31. It follows that in my view the decision to refuse the claim for disability support pension made on 7 July 2004 was correct and should be affirmed.

32. I should add however, that it seems to me to be unfortunate that it took until July 2005 for the matter to reach the stage where Mr Coates could be demonstrated to be qualified for disability support pension. I note that the authorised review officer accepted that some aspects of the matter "could, in hindsight, have been handled better." I agree. By late January 2005 Centrelink was in possession of credible medical evidence that suggested that Mr Coates suffered from the soft tissue injury and post traumatic stress disorder. It seems unfortunate that it was not until July 2005 that Mr Coates lodged a fresh application.

33. But that view cannot affect the decision that I must make on the basis of the evidence before me and the legislation that I must give effect to. The decision under review will be affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC

Signed: ...................Signed...............................................

Lynne Stalley, Administrative Assistant

Date of Hearing 16 October 2006

Date of Decision 3 November 2006

For the Applicant Mr C A Boylett and Mrs L M Coates

For the Respondent Mr M Black, Centrelink advocate

[1] Mr Price, as a psychologist, could not diagnose psychiatric conditions; that was a task for a property qualified medical practitioner.