Gregg and Secretary, Department of Workplace Relations

[2006] AATA 694

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 694

ADMINISTRATIVE APPEALS TRIBUNAL GENERAL ADMINISTRATIVE DIVISION		) ) )	No  N2006/255
Re	ADAM GREGG
Applicant
And	SECRETARY, DEPARTMENT OF WORKPLACE RELATIONS
Respondent
DECISION
Tribunal	Dr J D Campbell, Member
Date	11 August 2006
Place	Sydney
Decision	The decision under review is affirmed.

[Sgd] Dr J D Campbell, Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – assessment of impairments – whether Applicant suffers from from physical, intellectual or psychiatric impairment – whether Applicant satisfied Schedule 1B impairment tables – whether there is a continuing inability to work – consideration of evidence - the decision under review is affirmed.

Social Security Act 1991; s 94, Schedule 1B

Social Security (Administration) Act 1999, Schedule 2

REASONS FOR DECISION

11 August 2006 Dr J D Campbell, Member

1. Mr Gregg has suffered with epilepsy since he was 12 years of age.  Mr Gregg left school at age 15, and despite continued but varied medications he continues to suffer epileptic seizures.  Mr Gregg resigned from his work in early August 2005, having worked as a machine operator in a flour mill for approximately three years and at which his father was a supervisor.  Mr Gregg ceased work for reasons associated with concern over seizures in the workplace.

2. On 30 August 2005, Mr Gregg, aged 22 and unemployed, lodged an application for disability support pension, citing epilepsy as the medical reason for his inability to work. This application was rejected by a Centrelink officer on 29 October 2005 on the basis that his epilepsy had not been fully treated and stabilised. Such a finding did not permit an assessment rating of his impairment to be given. This decision was reviewed by the original decision-maker after a report was received from a neurologist, Dr Presgrove, and affirmed on 23 November 2005. On 21 December 2005, an authorised review officer (“ARO”), having reviewed a further report from Dr Presgrove, affirmed the original decision. On 13 February 2006 the Social Security Appeals Tribunal (“SSAT”) affirmed the earlier decision, concluding that Mr Gregg did not satisfy either section 94(1)(b) or (c) of the Social Security Act 1991 (“the 91 Act”).

issues

1. The relevant issues in this matter are:

   ·Does Mr Gregg suffer from a physical, intellectual or psychiatric impairment?

   ·Is Mr Gregg a reliable historian as regards the nature and frequency of his epileptic seizures?

   ·In the circumstances of the material before the Tribunal does the assessment of Mr Gregg’s impairments total 20 or more points pursuant to the Schedule 1B impairment tables?

   ·Does Mr Gregg have a continuing inability to work?

decision

1. For the reasons detailed later in this decision, I find that:

   (a)Mr Gregg does suffer from a physical impairment, namely epilepsy; and

   (b)Mr Gregg is not a reliable historian as regards the nature and frequency of his epileptic seizures, as by his own admission he has a poor memory and remains vague as to details on such seizures.

   (c)In the circumstances of this matter:

   (i)An impairment rating cannot be assigned, as Mr Gregg’s current narration of the nature and frequency of his seizures at the relevant period determine a finding that his condition at that time was not fully treated or stabilised; or

   (ii)In the alternate and having regard to the documented material, which includes three reports from Dr Presgrove, an assessment of the maximum impairment rating would be of the order of five points pursuant to Table 21.

   (iii)In the circumstances as described, I make no finding on the issues of whether Mr Gregg has a continuing inability to work as I do not consider it necessary or appropriate in the face of inconsistent clinical history as to the nature and frequency of the seizures.

background

1. Mr Gregg detailed a history of epilepsy since age 12, early childhood trauma of falling headfirst onto cement at age eleven months, and being hit on the head by a ball at school.  Mr Gregg stated after leaving school he lived variably with either parent in Tamworth, his parents having separated when he was about 10 years old.  At school and afterwards Mr Gregg stated that he has had difficulty in comprehension and with reading.  In 2002 his father, by then resident in Sydney, suggested Mr Gregg join him in Sydney and since then he has lived with his father and sister in Sydney.  Mr Gregg stated that he had undertaken minimal paid work prior to coming to Sydney, but after his arrival in Sydney, his father arranged work for him at a flour mill, at which his father was a production manager.  Mr Gregg said that he enjoyed working with his father but after some two to three years he had a seizure at home and one at work, which led to him ceasing work on about 16 August 2005.

2. Mr Gregg first applied for disability support pension at Tamworth on 20 April 2001 on account of his complex partial seizures and generalised seizures.  On 19 June 2001 Dr Hughes, Mr Gregg’s then treating neurologist reports that Mr Gregg was experiencing none to two seizures per month, that this was poor control of his epilepsy due to poor compliance with medication and that he was fit to participate in the work force.  His epilepsy impairment was assessed at 10 points by a medical adviser on 2 July 2001, with his claim being rejected on 13 July 2001.

3. A second application was lodged at Tamworth for disability support pension on 13 August 2001, the outcome of which remains undisclosed in the material before me.

4. On 24 July 2002 in a treating doctor’s report accompanying a further claim lodged in Tamworth, frequent seizures are nominated as the medical history.  Assessment by a medical adviser on 3 September 2002 details frequency at one to two per month, a severity rating of six and seizures duration as medium, resulting in an assessment rating of 30 points pursuant to impairment table 21.  Mr Gregg was granted disability support pension as from 6 September 2002 with date of effect being 9 August 2002.

5. Following advice from Mr Gregg to Centrelink that he had commenced work at the flour mill on 29 November 2002 in March 2003, Mr Gregg’s disability support pension was suspended on 15 July 2003 and cancelled on 1 December 2004, an amount of overpayment having been refunded to Centrelink as a result of his delayed advice to Centrelink of his commencement of employment.

current application

1. Mr Gregg made his current application for disability support pension on 30 August 2005.  A treating doctor’s report completed by Dr Nguyen on 12 September 2005 detailed Mr Gregg’s condition as severe epilepsy since 1995 with his current symptoms being headaches and recurrent seizures.  Dr Nguyen noted that Mr Gregg was medicated with Topamax and Lamictal for his epilepsy and that he was being assessed by a consultant neurologist.

2. On 14 October 2005 Mr Gregg was assessed by a Health Services Australia Medical Adviser.  In his whole person assessment Dr Weerasinghe noted that “in spite of medication he intends to get intermittent attack.  Most episodes as per him seem to be brief … will await opinion from neurologist” (T24/p290).

3. On 18 October 2005 Mr Gregg was assessed by Dr Presgrove, a consultant neurologist.  In his report of the same day Dr Presgrove reports Mr Gregg as having detailed two types of seizures, namely:

   (a)One in which witnesses have told him he stares and he is unresponsive.  No motor features accompany these episodes.  They last for several minutes, but he has not been aware of them occurring for several years.

   (b)General tonic-clonic seizures which occur one to two times per year, with the last in July/August 2005.  Such seizures over recent years are noted as being associated with circumstances where he has omitted several doses of medication.

4. In his report Dr Presgrove also notes Mr Gregg reporting difficulty with memory, drinks alcohol infrequently, does not drive a car and had a head injury resulting in intensive care treatment as a consequence of a seizure when aged 18.

5. In further comment in this report Dr Presgrove, while noting Mr Gregg’s interests in the possibility of a surgical remedy for his epilepsy, concluded that his seizures are adequately controlled on his present medication, provided that he is compliant.  Dr Presgrove also noted that the basis of Mr Gregg’s cognitive difficulties may be associated with his chronic epilepsy, the significant head injury, the medication and his use of cannabis.

6. As a consequence Mr Gregg’s claim for disability support pension was disallowed by Centrelink on 29 October on the grounds that the assessment of his impairment was less than 20 points (namely, no rating assigned) and that he did not have a continuing inability to work, as his condition was perceived to be temporary (T26/p294), in terms of being unfit only for a six month period (T27/p296).

7. In a further review and report dated 3 November 2005, Dr Presgrove detailed that Mr Gregg had had no further seizures; that his seizures seemed to be controlled, although his friend reports that he sleeps for long hours.  Dr Presgrove noted Mr Gregg’s focus on the concept of surgery to eliminate the need for medication and encouraged Mr Gregg to make contact with the Epilepsy Association.

8. On 13 December 2005, Dr Presgrove reported following a further review that Mr Gregg had had a further seizure recently, which appeared to be associated with an omission of medication, a situation noted by an accompanying friend confirmed as being associated with the bulk of his seizures.

9. Following a telephone interview with Mr Gregg on 21 December 2005, an ARO noted Mr Gregg as believing he had two to three seizures per month and that each seizure may last at least for 10 minutes with an ambulance usually being called.  On 21 December 2005, the ARO affirmed the decision under review.

10. At the Social Security Appeals Tribunal (“SSAT”) Mr Gregg is reported as stating that the rate of his seizures vary, namely one or two a fortnight, usually at night, and does not know usually whether he has a seizure until the next day when he notices the bumps or scratches and is very tired.  The SSAT affirmed the decision on 13 February 2006.

11. In oral evidence on 7 July 2006 Mr Gregg described the nature and frequency of his seizures as follows:

    (a)Seizures in which he goes into “stare mode” which lasts for one to 15 or 20 minutes.  No after effects and carries on with what he was doing after the seizure ends.

    (b)Seizures in which he loses consciousness for a period as described by Ms Feltham, an accompanying friend, for three to seven minutes.  Such seizures occur unpredictably from six a month (average) with none to one or two per week.  Mr Gregg stated that he sleeps for some hours after each such seizure.

Mr Gregg also stated that stars and flashing lights may provoke a seizure, while denying use of cannabis and excess alcohol, although stating that he enjoys going to the hotel/club occasionally with his father.

1. In further oral evidence given on 24 July 2005, Mr Gregg again detailed the nature and frequency of his seizures:

   (a)Minor seizures:          Few moments to 15 to 30 minutes; Two to three a month; Nil after effects;

   (b)Major seizures:          Minutes; Eight a month (two a week); Sleeps for an average of four hours after each seizure.

2. When asked to explain the inconsistency between his description to the Tribunal of the nature and frequency of his seizures during the operative period (13 weeks from date of lodgement) and at a period of time when he believed he was having a significant occurrence of seizures and that detailed by Dr Presgrove as a result of repeated consultation, Mr Gregg admitted that he had difficulty with memory, that he readily got confused and Dr Presgrove may have misunderstood what he and his friend had reported.

consideration and findings

1. In addressing the issue of whether Mr Gregg has a physical impairment I have no difficulty in concluding that Mr Gregg has suffered from epilepsy since age 12, and that current therapy is with specific medication, many other medications having been used in the past.  I do however note evidence of a learning difficulty, namely difficulty with comprehension and reading, associated with leaving school at an early age.  It is also evident that the issue of cognitive difficulties is raised by Dr Presgrove in his first report.  While I am satisfied that Mr Gregg meets the requirement of section 94(1)(a) of the Act in relation to a physical disability, further psychological evaluation is necessary to rule out the existence of an intellectual and/or cognitive disability.

2. From the material in evidence it is clear and I so find that the evidence as provided on two occasions by Mr Gregg and that detailed by Dr Presgrove in his three reports after three consultations with Mr Gregg and his friend Ms Feltham, as to the nature and frequency of his epileptic seizures are significantly inconsistent in fact and detail.  A second opportunity was given to Mr Gregg to explain such inconsistency, with explanations given by Mr Gregg doing little to resolve the issue.  In such circumstances and while accepting Mr Gregg’s admission as to confusion, poor memory and stress, I conclude that Mr Gregg’s evidence before the Tribunal as to the nature and frequency of his seizures to be less than reliable.  In so saying, while recognising that Mr Gregg is reliant upon others as to the nature and duration of major and minor seizures, accuracy of his information in the absence of a diary, as to frequency, severity, duration and post-seizure effects as well as compliance with medication must in the circumstances be less than reliable.  Despite such consideration, I remain unable to explain the difference in content as to nature, frequency, severity and duration of seizures as related by Dr Presgrove after consultation on three occasions with Mr Gregg and his friend, Ms Feltham, and that given by Mr Gregg to the Tribunal on two occasions.  I suspect that there may be a degree of emphasis added, by way of exaggeration by Mr Gregg, in an attempt to have others accept the difficulty he has in accepting and dealing with a significant disability.  In this regard I strongly support and exhort Mr Gregg to seek out and speak with the Epilepsy Association, as well as seek counselling to work through such difficulties he may be experiencing.

assessment

1. If one accepts the evidence given by Mr Gregg as to nature, frequency and duration of his seizures during the operative period the conclusion one would draw is that his condition is neither fully treated nor stabilised.  In such circumstances, as defined in the introductory comments to the Schedule 1B Impairment Tables, an impairment rating should not be assigned, until the condition is fully treated and stabilised.  In such circumstances a nil points rating is the outcome.

2. If the circumstances as defined by Dr Presgrove are assessed in the light of some further definitions as to the post-seizure effects, and the duration of the major seizures as related by Mr Gregg with the assistance of Ms Feltham the assessment pursuant to Impairment Table 21 “Intermittent Conditions” would be:

   (a)Minor seizures – none for several years (Dr Presgrove) - Nil points

   Using Gregg/Feltham evidence:

   Severity:          One    (Table 21.1) (mild to moderate symptoms – loss of   efficiency in some activities)

   Duration:         Average more than five but less than 30 minutes

   Short (Table 21.2)

   Severity Grading Code – A (Table 21.3)

   Assignment of rating – Table 21.4

   Frequency two or three a month – Assessment nil points

   There is no assessment rating for post-seizure effect as none were described by Mr Gregg.

   (b)Major seizures – Table 21 Intermittent Conditions

   As defined by Dr Presgrove’s evidence, assisted in part by the evidence as to the duration and post-seizure effects by Mr Gregg and Ms Feltham.

   Severity:          Table 2.1      Six      (unconscious, self care is impossible)

   Duration:Table 21.2     Transient      (three to seven minutes,    average five minutes)

   Severity Grading Code – Table 21.3          F

   Assignment of rating – Table 21.4   Nil points       (2+ attacks a year)

   In relation to the assessment of the post-seizure effects:

   Severity:    Table 21.1              Three         (bed rest is often necessary)

   Duration:    Table 21.1              Medium      (average four hours)

   Severity grading – Table 21.3  D

   Assignment of rating - Nil points      (2 attacks per year)

I would note that a rating of five points would be available for major seizures if Mr Gregg was having more than 10 and less than 20 major seizures a year, with no additional points for post-seizure effects for the same number of seizures.

1. With such an analysis as to assessment outlined I find that in the circumstances of this matter an impairment rating should be not assigned if the condition of his impairment is as defined by Mr Gregg to the Tribunal, as his condition is not fully treated or stabilised.  In the alternate analysis as described I conclude that the maximum rating is at best five points pursuant to Table 21.

2. In either circumstance I find that Mr Gregg does not satisfy the qualification contained within section 94(1)(b) of the 91 Act, namely an impairment assessment of 20 or more points. In such circumstances Mr Gregg does not qualify for a disability support pension.

continuing inability to work

1. Mr Gregg has an impairment which has both inherent and acquired characteristics.  Some of the characteristics (intellectual, cognitive difficulties) remain not investigated leaving an assessment of his continuing inability to work somewhat speculative.  Similarly the absence of accurate data as to the nature, duration and frequency of the minor and major seizures suffered by Mr Gregg, as well as substantive details as to the after effects (post-seizure) of his major seizures make any assessment of his condition difficult, let alone as to whether or not he has a continuing inability to work.  While noting a period of full-time work in a flour factory for a period in excess of two years prior to his current application, I believe it inappropriate and not necessary to make a finding on whether or not Mr Gregg has a continuing inability to work until there is material available which results in an assessment rating of 20 or more points for defined impairments.  For the latter to happen Mr Gregg has to be particular in the collection and presentation of his data and other avenues nominated earlier and explored by the assessing authority.

determination

1. The decision under review is affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         Associate

Date of Hearing  7 July 2006      
Date of Decision  11 August 2006
Representative for the Applicant               Self-Represented    
Advocate for the Respondent  Ms S Mantaring