Hatton; Secretary, Department of Employment and Workplace Relations and
[2007] AATA 1631
•7 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1631
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/714
GENERAL ADMINISTRATIVE DIVISION ) Re SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS Applicant
And
DANIEL HATTON
Respondent
DECISION
Tribunal Ms Robin Hunt, Senior Member Date7 August 2007
PlaceSydney
Decision The decision of the Social Security Appeals Tribunal is affirmed.
..................[Sgd]......................
Ms Robin Hunt
Senior Member
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension - diagnosed epilepsy – condition fully investigated, treated and stabilised – decision set aside
Social Security Act 1991
Social Security (Administration) Act 1999
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
Cooper Brookes (Wollongong) Pty Ltd v FCT (1981)
Re Tlonan and SDSS No. D95/2 AAT No 11595
Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471
Clarke and Department of Family and Community Services [2000] AATA 568
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 331; (1979) 27 ALR 367
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467
Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249
Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222
Freeman v Secretary, Department of Social Security (1988) 87 ALR 506
Chhit and Secretary, Department of Family and Community Services [2004] AATA 744
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007)
Blue Sky v Australian Broadcasting Authority [1998] HCA 28
McKenna v Repatriation Commission (1995) 39 ALD 254
Hudson and Department of Family and Community Services [2000] AATA 502 (22 June 2000)
Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076
Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] FCA 1086
REASONS FOR DECISION
7 August 2007 Ms Robin Hunt, Senior Member Summary
1. Mr Daniel Hatton has been diagnosed with epilepsy and suffers continuing symptoms which prevent him from being in regular employment. This situation led him to apply for the disability support pension (DSP). I have found on review that Mr Hatton’s conditions have been diagnosed, treated and stabilised at the operative period, around 29 December 2005. He has an impairment rating of 50 to 55 points and therefore at least 20 points. His impairment has resulted in a continuing inability to work as defined in section 94 of the Social Security Act 1991. Consequently, Mr Hatton was entitled to receive the DSP from 29 December 2005.
Background
2. The Social Security Appeals Tribunal (SSAT) on 9 May 2006 set aside the decision made by an authorised review officer on 21 April 2006 rejecting Mr Hatton’s claim for disability support pension. The SSAT substituted a new decision that Mr Hatton satisfied the criteria for disability support pension from the date of his claim. The Secretary of the Department of Employment and Workplace Relations (the Secretary) is appealing the decision made by the SSAT on 9 May 2006.
3. Mr Hatton has been receiving newstart allowance with a medical exemption since February 2005. He lodged a claim for disability support pension on 29 December 2005. He is still receiving newstart allowance and the history of his matter is set out in the Secretary’s statement of facts and contentions.
Issues
4. The SSAT decided that Mr Hatton satisfied the provisions of section 94(1) (a), (b) and (c) of the Social Security Act 1991 (the Act) and therefore qualifies for disability support pension from the date of his claim, 29 December 2005. Accordingly, the issues I must decide in reviewing this decision are whether Mr Hatton was qualified to receive disability support pension on the date of his claim or within 13 weeks from that date. This requires deciding if Mr Hatton had:
(a)A physical, intellectual or psychiatric impairment as defined in the Act;
(b)A diagnosed condition that had been investigated, treated and stabilised and was likely to continue for at least two years,
(c)An impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act,
(d)A “continuing inability to work” because of the impairment to the extent that the impairment was of itself sufficient to prevent him from:
(i)Doing any work within the next two years
(ii)Undertaking educational, vocational or on the job training during the next two years, or if the impairment did not so prevent him, the retraining was unlikely because of the impairment to enable him to do any work within the next two years.
Legislative Scheme
5. Section 94 of the Act, as it was at the date of Mr Hatton’s claim, provides, in part:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;…
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next two years; or…
...
(5) In this section:
“work” means work:
(a) that is for at least 30 hours per week at award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
6. The introduction to the ‘Tables for the Assessment of Work-Related Impairment for Disability Support Pension’ contained in Schedule 1B of the Act states, in part:
4. A rating of 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 two 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.
…
7. The ‘Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension’ (“the Guide”) provides further clarification and states, about determining permanent impairment:
(K) DETERMINING PERMANENT IMPAIRMENT – (PARAGRAPHS 4, 5, 6)
Note: The concept of permanent vs temporary impairment appears to cause the most confusion in the application of the Tables. Some of the difficulties may be related to perceived ambiguities regarding the terminology used in Paragraphs 4, 5 and 6 of the “Introduction”. It is emphasised that the definition of “permanent” as used in assessments for disability support pension purposes is not the same as its generally accepted meaning in common usage (ie taken to last indefinitely) but is rather taken to mean, “lasting for at least two years without significant functional improvement”.
Additionally, difficulties arise in applying this particular definition of “permanent” when describing a “condition” as this is sometimes confused with the resulting “impairment” that the condition causes. When the Tables refer to a condition, it is usually implied that it is the resulting impairment that is being considered. As the Tables are function-based rather than diagnosis-based, they are designed to assess separate impairments rather than conditions. It may therefore be less confusing if the term “impairment” is substituted whenever “condition” is sued in Paragraphs 4, 5 and 6 of the “Introduction”.
1.Permanence Criteria = “fully diagnosed, treated, stabilised & won’t improve significantly within the next two years”:
A permanent impairment rating can only be assigned if it is considered that the condition and its resulting level of impairment will persist for at least two years. Further, it should be considered unlikely that significant functional improvement will occur within that period. This requires that the condition causing the impairment has been fully diagnosed, treated and stabilised. Impairments that do not satisfy such criteria are by definition considered temporary and should not be rated under the Tables.
Medical judgement is usually required to evaluate the available medical evidence and determine if the permanence criteria have been satisfied. The question that needs to be answered generally is whether anything (eg further time or therapeutic intervention) is likely to result in significant functional improvement within the next two years. It is expected that this will usually require a comprehensive history and examination.
In general, if a medical condition were of sufficient severity to prevent a person from working in any capacity, it would be reasonable to expect that it has received optimal medical management. This should include appropriate investigations and/or specialist review and treatment as indicated. Impairments resulting from conditions that have not been fully diagnosed, treated and stabilised, should not be assigned a permanent rating but should be considered temporary until appropriate medical management and stabilisation has occurred.
…
4 Fully Stabilised – no improvement over next two years:
For a condition’s impairment to be fully stabilised, it must be considered that with or without treatment, significant functional improvement is unlikely to occur within the next two years. Medical evaluation is required to assess the prognosis for further improvement within the next two years and factors such as the natural history of the condition, response to treatment and expected rate of recovery will need to be considered. It should be noted that “stability” as used in this context has a more specific meaning than that in common usage. The following examples illustrate further the restricted meaning of “fully stabilised”.
…
·A condition which is fluctuating and has a variable course with intermittent episodes of exacerbation (eg Bipolar Affective Disorder) may still be considered stable if it is being optimally managed and its current overall impact on work ability is unlikely to improve significantly within the next two years. However, an intermittent condition (eg epilepsy) would not be considered fully stabilised if further medical management can significantly improve its control and reduce the frequency of its episodes (eg by treatment compliance, adjusting dosage or type of anti-convulsant medication to reduce side-effects or improve therapeutic effect).
Mr Hatton’s Evidence
8. Mr Hatton provided a written statement dated 24 January 2007 and also gave oral evidence at a tribunal hearing. Mr Hatton said he left school in 1983, having received his School Certificate, and undertook an apprenticeship in wood machining. He was in constant employment since he gained his trade qualification in 1986. He also gave oral evidence that he has nearly always worked in timber yards, variously working machinery, driving forklifts, driving trucks, working on scaffolding, on timber racks, working at heights, dealing with customers and carrying out lifting of heavy timber. He said he was also an avid cricket player and coach as well as a 1st grade Rugby League referee. He agreed with the suggestion that, overall, he was an energetic man who liked being engaged with work.
9. Mr Hatton told the tribunal that he experienced his first seizure at work in December 2004. He was carrying a lump of timber that he had just machined for a customer. Because of this episode, Mr Hatton saw a doctor at hospital but he sought no further treatment, hoping he might not have another episode. However, he had a second seizure while shopping with his wife. He went to hospital again and this time arranged to see Dr Mansfield for advice and treatment. Dr Mansfield has been Mr Hatton’s GP ever since. Dr Mansfield contacted a neurologist, Dr Katekar, who examined Mr Hatton a few weeks later and recommended various investigations and treatments. Mr Hatton has continued to see Dr Mansfield regularly. He did not see Dr Katekar again for some months after his condition improved.
10. Mr Hatton further said he has continued to suffer headaches since his first seizure. He said reading brings on and increases the severity of his headaches. He also has a poor memory now and finds it difficult to remember even simple things like taking clothes off the washing line, which he finds frustrating. Mr Hatton told us that as well as having major seizures, he experienced absent and transient seizures. On one occasion, he injured his hand by placing it in boiling oil during one of these seizures. He often missed parts of programs he was watching on TV.
11. As a result of taking epilepsy medication, Mr Hatton developed Irritable Bowel Syndrome and had to be treated for an anal fissure. Mr Hatton gave evidence about the numerous treatments he had trialled under his specialist’s care and listed a number of medications he recalled taking. The medications he remembered being prescribed included Tegretol, Epilim, Neurontin, Keppra, Gabatril, Sabril, Oxcarbazepine and Topamax. In relation to the drug, ‘Topamax’, which Mr Hatton is currently taking for his epilepsy, he said:
It seems to give me the least amount of side effects and it seems to be the one that controls the fits the best and it seems to be the one that my body can handle the most and I am reasonably happy with the level of side effects, it seems to be the one. I can live with the headaches that I’ve got off it and it doesn’t upset the stomach too much, even though I got upset stomach and I am reasonably – I can control going to the toilet reasonably well with it, it does make my bowels loose but I can sort of live with it, it seems to be the one that’s given me the less amount of side effects.
12. When asked if he was prepared to trial other medications, Mr Hatton expressed some reservations. Asked in the context that there may be some other treatment which would decrease his symptoms and the number of seizures he suffers, Mr Hatton responded:
I don’t know if I’m prepared to risk going through what I went through in the first 12 months and if it is anything like some of the things that I have been going through, Dr Katekar, even the one I tried after going to Dr Heard down at Gosford and we tried one for a week [Keppra], and it made me … spew up and virtually the headaches and the way it made me feel in my head, if they are anything like that and the way it made me feel, no, not while I am on this, the one that I am on at the moment that I can happily live with.
13. In re-examination regarding the same issue he replied:
Dr Katekar said he is quite confident that Topamax seems to be the best agent for me to take and he doesn’t think that there’s anything other agents out there that would be any better for me … I trust, I have got full faith in him. He has been the doctor I have had from the start. He seemed to be able to pinpoint that one after only a short time of trialling these other ones.
14. When asked why he applied for the disability support pension, Mr Hatton replied that he thought his condition was not going to improve beyond what his current treatment had achieved. He gave evidence that:
Because after speaking with Dr Bonert and on his recommendation to go back and then speak to my two doctors, Dr Katekar and Dr Mansfield, those three doctors made it clear to me that my current medication, Topamax, was about the best that was available to me and that was probably the best option for me to do, that I wasn’t going to get any better, that it was stable and I wasn’t going to get back to work and they probably couldn’t do any more for me.
He also explained that the peripheral benefits associated with DSP would make life easier. He would not continually have to obtain doctors’ certificates to keep his newstart allowance and would not have to show constantly that he was unfit to work. He also referred to the cost of his medication which might be reduced once he was on the DSP.
15. Mr Hatton gave further evidence that he was content with his current treatment because he had not experienced a grand mal seizure since taking it and his stomach and bowel problems had eased. His headaches were also less severe. He still suffered some absences and did not expect that to change. He experienced a seizure at least once a day and longer seizures about once or twice a week as well as still having bowel trouble. He needed to be a near a toilet all the time. He believed these problems would prevent him from working even though he had improved. He felt he could not work while he still had persistent headaches. He would go back to work tomorrow if there was a new medication that would improve his condition but was worried about experimenting and going back to having the severe symptoms he had experienced previously.
16. Before the Topamax stabilised his condition, Mr Hatton said he had been through a very difficult time and trialled many treatments that had not helped or had made him worse. On Topamax, he could manage daily activities fairly well although he still had headaches. This did not mean that he would refuse to try further treatment if Dr Katekar recommended it. He would be prepared to undergo surgery if Dr Katekar thought it might help. He understood that surgery was not an option at present as the MRIs and scans were clear and showed no growth or abnormality which might be removed.
17. After being on medication for 12 months or so and having seen Dr Mansfield, Dr Katekar and Dr Bonert and having tried so many treatments, he thought he would be eligible for the DSP. He had not seen Dr Katekar for 12 months or so because Dr Katekar suggested he stay on the present regime for 12 months. He was only to see Dr Katekar if he experienced problems again. He had continued to have no major reactions or breakthrough seizures over the period. He had seen his GP, Dr Mansfield, to get prescriptions from time to time.
Medical Evidence
18. Various medical records concerning Mr Hatton are contained in documents furnished by the respondent. These show that Dr Mansfield, Mr Hatton’s general practitioner, diagnosed Mr Hatton with epilepsy and completed Centrelink medical certificates stating this on 25 February 2005, 24 May 2005 and 22 August 2005. Dr Mansfield’s medical certificate of 22 August 2005 referred to Mr Hatton’s epilepsy and a second condition affecting Mr Hatton’s bowel, which arose from his epilepsy medication. In the early stages of his treatment, Mr Hatton’s doctors thought he might improve more than has happened to date. However, he has had recurring partial and generalized seizures which have been difficult to control with medication.
19. Dr Mansfield arranged for Mr Hatton to consult Dr Katekar, a consultant neurologist, in February 2005. After seeing Mr Hatton, Dr Katekar prepared a report for Dr Mansfield dated 24 February 2005 which set out his diagnosis of focal onset fronto-temporal epilepsy. Dr Katekar also prescribed a course of treatment. Dr Katekar provided a further report dated 26 August 2005 after adjusting Mr Hatton’s medication and stated:
I am hoping his seizures will stay under control at this point, I have arranged to review him again in about 3 months
20. Dr Mansfield provided a treating doctor’s report, dated 14 November 2005, in which he considered Mr Hatton’s epilepsy would affect his ability to function for less than 3 months and that he would improve within 2 years. He made a similar prognosis about Mr Hatton’s irritable bowel syndrome. On 13 December 2005, Dr Bonert assessed Mr Hatton and rated Mr Hatton’s epilepsy as temporary on the basis that the medication was being adjusted. As the result of his discussions with Dr Bonert, Mr Hatton arranged for Dr Mansfield to submit a further treating doctor’s report. Dr Mansfield’s report dated 23 December 2005 indicated that Mr Hatton’s epilepsy was likely to affect his ability to function for at least 2 years and was expected to improve over the next 2 years. Dr Mansfield also made a similar analysis of Mr Hatton’s irritable bowel syndrome.
21. Dr Katekar explained early in 2006 that Mr Hatton’s condition was more difficult to treat than originally expected. He provided a report dated 11 January 2006 stating:
Mr Hatton is under my care for diagnosis and management of epilepsy. This has proved to be a difficult management problem over the last 12 months. He has had recurring partial and generalized seizures which have been difficult to control with medication …
22. On 7 March 2006, Dr Kelly reported that Mr Hatton had received treatment for his anal fissure. On 10 February 2006, Dr Aus prepared a medical assessment. In Dr Aus’s assessment, Mr Hatton was temporarily unfit. He considered the bowel disorder as well as the epilepsy in making his assessment. The assessment was based on a file review rather than examination.
23. Then, on 3 March 2006, Centrelink refused Mr Hatton’s application for the DSP. Shortly afterwards, on 10 March 2006, Dr Mansfield wrote to Centrelink stating:
Mr Daniel Hatton has been my patient since January 2005. He has had partial and generalised seizures. He has required two medication continuously to control these seizures. He has noticed side effects to the medications. They cannot be stopped and remain the best available for his condition. (emphasis added).
24. On 24 August 2006, Dr Beiers, Consultant in Rehabilitation Medicine, prepared a medico-legal report. Pursuant to Table 21, Dr Beiers assessed Mr Hatton, in relation to his daily absence seizures, as having an impairment rating of 5 points and, in relation to his prolonged absences, assessed him as having a further impairment rating of 30 points. Dr Beiers also assessed Mr Hatton as having an impairment rating of 20 points in relation to the effects of his medication.
25. In Dr Beiers’ opinion, Mr Hatton’s impairment prevented him from working 30 hours or more per week and prevented him from undertaking educational, vocational or on the job training. Dr Beiers also opined that Mr Hatton’s impairment at the time of examination was not significantly different to what it was on 29 December 2005. She concluded that his condition was diagnosed, treated and stabilised within 13 weeks of 29 December 2005.
26. On 15 September 2006, at the request of Health Services Australia, Professor Heard, clinical neurologist, provided a report concerning Mr Hatton. On 20 December 2006, Professor Heard updated his report of 15 September 2006 to include an apparently omitted section of the original report. The final version set out his opinion:
Mr Hatton has developed a late onset partial seizure disorder which has now resulted in a generalised seizure on 3 occasions. EEG and MRI have shown no focal abnormality. His seizures are currently incompletely controlled. Although he has no major seizures since 2005, he continues to experience partial seizures or absences once a week and these are severely compromising his ability to work, drive and undertake normal daily activities safely. As a secondary issue he has developed chronic muscular contraction headaches which may be related either to medication or to stress and anxiety or to both.
27. Professor Heard also noted the diagnosis of idiopathic partial onset generalised epilepsy. Concerning prognosis, the professor stated, “at this stage” it remained uncertain. He found the current severity of the seizure disorder was such as to severely impact on his ability to lead a normal life. At that time, the professor considered Mr Hatton was totally unable to conduct his normal occupation due to major safety concerns. Professor Heard urged further review, saying:
In my view it is important to note that Mr Hatton has not been reviewed by his neurologist for approximately 12 months and that no recent adjustment to his medication has been made. In my view it is more likely than not his current seizure frequency may be improved by further intervention and I will strongly recommend that consideration be given to either further review by Dr Katekar or referral to one of the comprehensive epilepsy units in Sydney.
28. On 22 September 2006, Dr Aus of Health Services Australia, wrote to Centrelink enclosing Professor Heard’s report and confirming Mr Hatton was unfit for work. Again, on 27 November 2006, Professor Heard recommended Mr Hatton be reviewed by a treating neurologist in the expectation that a further reduction in his seizure frequency may be achievable. In the professor’s view, Mr Hatton’s headaches may be related to either medication or stress and anxiety. He commented that his medication otherwise appears to be well tolerated. At point 5, Professor Heard stated his belief there may be a significant functional improvement within 2 years of the claim.
29. Dr Robert Heard gave oral evidence at the tribunal hearing. When asked if he considered if it would be appropriate in Mr Hatton’s case to trial him on other epilepsy drugs, Dr Heard responded that this was an option he favoured, saying:
… if I was the treating neurologist in this case or a case similar to it I would be looking at exhausting all avenues for oral treatment but I would also give pretty serious consideration to referring to a comprehensive epilepsy unit for more detailed investigation as well as advice on managing multiple drugs together, because combinations of drugs are frequently necessary in epilepsy.
30. When asked whether, if further treatment were pursued, it would result in significant functional improvement, Dr Heard did not suggest that an improvement could be guaranteed. He gave evidence that “(I)t may but I have to say that you couldn’t be certain about that. It might make absolutely no difference at all but you don’t know until it’s been done.”
31. Professor Heard went on to say Mr Hatton had been managed correctly up until now. There was no question about that at all but, because he is so badly affected by his seizure frequency, if he were managing him he would want to take it further. While “the gold standard” was no seizures at all, the professor conceded, in a great many cases that will not be achievable. Then it might be a question of whether to render a patient completely seizure free with sufficient drugs but bring about an unacceptable situation of making the patient totally drowsy and unable to conduct a normal life anyway. There was always a balancing point. He stated this was very much a matter for the patient and the treating doctors to decide between them whether that point has been reached. If that point is reached and the outcome is not acceptable and is impacting on the patient’s lifestyle to a point which he finds unacceptable then there are further steps which should be taken.
32. I have reports from Mr Hatton’s treating specialist, Dr Michael Katekar, dated 18 January 2007 and 26 February 2007. I also heard evidence from Dr Katekar. Dr Katekar indicated that there are particular medications that are used for different epilepsy syndromes and some are known to be more effective than others. He went on to outline that the principle is, in patients who present with epilepsy, about 80% will respond favourably to their first medication and about 20% do not. He continued:
“With your second medication you can probably control half of the remaining group, that is to say, after trialling two medications generally about 90% of patients will get satisfactory control of their epilepsy but there are a group who we call medication refractory and that definition of refractory epilepsy is seizures that continue despite exposure to two anti-convulsion agents and the literature would suggest that after you have tried two and failed that to keep on trying different drugs is not likely to produce any material improvement in their control.”
33. Dr Katekar also confirmed in oral evidence that he considers Mr Hatton’s grand mal seizures are controlled and his current treatment has achieved reasonable control over his absences. Essentially, in his opinion, Mr Hatton had partial onset epilepsy with partial seizures and sometimes with generalised seizures and had imperfect control which was “a situation that has pertained now for some years”. He had established that Mr Hatton has medication refractory epilepsy, he had optimised his therapy, trialled five different drugs, settled on Topamax as something that he is able to tolerate and provided him with probably as good a control as he is likely to get. Dr Katekar acknowledged there are always other drugs and he could continue to sift through those but, as Mr Hatton had medication refractory epilepsy, it was unlikely that he could completely control his seizures. He went on to note that, now Mr Hatton had had a period of stabilisation, he was now at the point where he should be referred to an epilepsy clinic rather than trialling more epilepsy drugs for another six to twelve months.
34. In relation to surgery Dr Katekar stated he would head there now but it was a pathway and a process that takes a long time of careful evaluation, assessment, investigations, hospital admissions, detailed scans, testing and “making sure the patient is not going to miss that bit of the brain and not be damaged by the operation and having the operation, getting through the operation, recovering from that”. Taking a long view, that whole process was likely to take a couple of years. In the meantime, Mr Hatton had an ongoing disability which was going to last for the foreseeable future, at least a two year period, and it might be appropriate to reassess later.
35. Dr Katekar believed Mr Hatton was being appropriately managed and controlled while agreeing with Professor Heard’s view there may be something that can be done in the future to improve Mr Hatton’s condition. Dr Katekar re-iterated that Mr Hatton still suffered from chronic refractory epilepsy. They had done their best to optimise his medication, found one that at least prevents his generalised seizures and that he could tolerate. While there are always more options, changes in his medication were not likely, at this point, to produce any material improvement in his seizure control but they were still going through this process of managing his chronic epilepsy and resulting disability. This was a process that will continue for as long as this gentleman has chronic epilepsy and resulting disability.
Was Mr Hatton’s Condition Fully Documented?
36. Part 4 of the Introduction to the Tables in Schedule 1B requires the particular condition be fully documented. The Secretary did not argue that the condition was not fully documented and I am satisfied that Mr Hatton’s condition is comprehensively documented. This is plain from the medical evidence discussed above.
Was Mr Hatton’s Condition Diagnosed?
37. Mr Hatton has been diagnosed with epilepsy and this occurred before he applied for the DSP. There is no disagreement about this diagnosis but only discussion about the best management of his condition and whether his condition has been investigated, treated and stabilised. The main point that has arisen is whether the condition is permanent according to the legislation and guidelines set out above.
38. In addition, Mr Hatton suffers irritable bowel syndrome which has improved with medication but is not cured. His worst symptoms occurred when he was trialling different medications to control his epilepsy. Mr Hatton underwent surgery for an anal tear related to his bowel syndrome. The surgery performed is not part of diagnosis. The bowel syndrome has been acknowledged in various medical reports and assessments and has been diagnosed.
39. Dr Mansfield first diagnosed epilepsy on 9 February 2005 and diagnosed irritable bowel syndrome on 28 June 2005. Mr Hatton made his application for DSP several months later, on 29 December 2005. Mr Hatton’s associated headaches were also documented and diagnosed during 2005 and Dr Mansfield prescribed Inderal according to his report of 14 November 2005. It follows that Mr Hatton’s epilepsy, irritable bowel syndrome and headaches have been fully diagnosed.
Was Mr Hatton’s Condition Investigated?
40. Part 4 of the Introduction to the Tables in Schedule 1B, described by the Secretary as the “gateway section,” requires the particular condition be investigated as well as fully documented and diagnosed. The Secretary observed in submissions dated 15 May 2007 that the Australian Pocket Oxford Dictionary defines the word “investigate” as “inquire into, examine, make a systematic enquiry”, but then suggested this did not assist in applying the “gateway section”. I consider, on the contrary, that this definition is apt and that Mr Hatton’s condition has been investigated according to the dictionary meaning of the term and its usual or ordinary meaning. I see no justification for going beyond the usual rules of interpretation. The general rule is that words are given their plain and ordinary meaning unless the contrary is shown. See, for example, Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 per Dixon J at 647. As well, the correct approach to interpretation of legislation is to give effect to the evident purpose or intent by reference to the language of the instrument viewed as a whole: Cooper Brookes (Wollongong) Pty Ltd v FCT (1981) 147 CLR 297. The introduction is framed in plain English and I see no reason to interpret the language in any other manner.
41. In my view, Mr Hatton’s condition has been investigated according to the plain and ordinary meaning of that word. Drs Mansfield and Katekar have been nothing short of systematic and in trialling various treatments over a period have inquired into and examined the best treatment for Mr Hatton’s condition. I find no basis for agreeing with the Secretary’s contention that a more exacting investigation is predicated. There is nothing in the legislation to suggest that it is necessary to find there are no further material investigations reasonably required to facilitate diagnosis and treatment. I am satisfied, on balance, after hearing from Dr Katekar and referring to other reports, that Mr Hatton’s condition has been investigated by a medical expert whose conclusions and treatment are reasonable in all the circumstances.
42. While Professor Heard considered the epilepsy should be further investigated and Dr Katekar agreed, this is an ongoing process. The desirability of undertaking more investigation from time to time does not mean Mr Hatton’s condition had not been investigated at the time of his application. Professor Heard described diagnosis as provisional at one point in his oral evidence but also stated that Mr Hatton’s condition had been well managed. The pattern of complex and continuing investigation which he described, should Mr Hatton undergo investigation at an epilepsy clinic, suggested some considerable time might be involved. Dr Katekar responded that the time had come to undertake such a process but this did not mean the condition was less than permanent at the relevant time. To a question about possible surgery, Dr Katekar responded by saying it was a pathway and “a process that takes a long time of careful evaluation, assessment, investigations, hospital admissions, detailed scans” and involved risk to the brain that might complicate a decision to operate. To hold that long term and continuing investigation of a condition, which already has been diagnosed, investigated, well managed and treated, prevents a person from qualifying for the DSP makes a nonsense of the legislative provisions in my opinion. All serious conditions should be subject to continuing investigation as medical developments and possible new treatments evolve but this does not mean the condition involved is not permanent.
Was Mr Hatton’s Epilepsy Treated And Was The Treatment Reasonable?
43. Mr Hatton has been consulting his general practitioner, Dr Mansfield, on a regular basis as well as seeing his treating neurologist, Dr Katekar, since his second seizure early in 2005. Dr Mansfield’s records show Mr Hatton has regular blood tests and his medication was varied and adjusted prior to the DSP application.
44. The difficulty in Mr Hatton’s case is that his condition might be further improved but he had reached a stage when he made his DSP application of already achieving a vast improvement. He and his treating neurologist thought his treatment should continue for 12 months to allow him to recover before any further experimentation with other treatment was trialled.
45. A similar situation was discussed in the tribunal case of Re Tlonan and SDSS No. D95/2 AAT No. 11595. In relation to the issue of treatment, the tribunal found:
There will be instances in which a patient does not respond to a particular form of treatment or has an adverse reaction to it. When that occurs, the treatment is generally modified or changed so that the treatment is indeed having its desired effect i.e. to cure or manage the particular condition. The condition is still being treated despite the modification or change. If a condition is not cured, or at least does not respond, to reasonable methods of treatment or if the side effects of the treatment are such that they are not tolerable or are harmful, the condition can still be said to have been treated. What are reasonable methods of treatment and what side effects are harmful or intolerable so that the treatment should not be pursued are questions of fact to be determined in each case.
46. I agree with the tribunal’s approach in Tlonan. A condition has nevertheless received treatment despite modification or change to deal with adverse reactions or side effects. Good medical management and reasonable treatment involves achieving the best result taking into account avoidance of side effects and even if a cure is not achieved. Mr Hatton has had the benefit of good medical management of his condition but might still benefit further in due course. Dr Katekar’s professional opinion was that Mr Hatton should stay for 12 months with the medication that had achieved the best results and avoided the drastic side effects of irritable bowel syndrome. Dr Katekar did not foresee any significant improvement in the period of 12 months after his last consultation before Mr Hatton made his application but had modified his treatment to allow him to recuperate to a degree. He considered his condition permanent at that stage although open to further testing in due course. Dr Mansfield also considered his condition was permanent for two years when he issued a certificate on 23 December 2005.
47. Previous decisions of the Tribunal have held that an applicant's failure to follow treatment recommendations made by their treating medical advisers can preclude a finding that their condition has been treated: Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467 (failure to take migraine medication); Rudder and Secretary, Department of Employment and Workplace Relations [2006] AATA 249 (failure to use contact lenses to correct vision); Re Newman and Secretary, Department of Family and Community Services (2002) 71 ALD 222 (failure to attend recommended pain management treatment). Unlike these situations, in the present case, Mr Hatton has accepted his doctors’ advice and his condition has been treated.
48. Section 6 of the introduction to Table 1B says I must consider whether any further “reasonable medical treatment” is “likely” to lead to “significant functional improvement within the next 2 years”. None of the medical opinion before me leads conclusively to significant functional improvement being likely should further investigation and treatment take place. Professor Heard gave evidence that further investigation and treatment at a clinic might lead to such improvement but also conceded that this was not necessarily the case. The Secretary argued that I can only determine the reasonableness of the treatment after full investigation and that this would only occur after submitting to the investigation by a clinic. Dr Katekar accepted that an epilepsy clinic could “finesse” medication and that it was an appropriate course of action. However, I do not think that this means Mr Hatton’s treatment has been less than reasonable because he has not yet attended a clinic.
49. Given Mr Hatton’s history of medication, the side effects he has suffered, and his compliance with the treatment regime, it is my view that his condition has been treated reasonably. This is confirmed, among other evidence before me, in Dr Katekar’s report of 18 January 2007. As well, that Mr Hatton’s condition has been treated between 29 December 2005 and the end of March 2006 is supported by cotemporaneous reports of both Dr Katekar and Dr Mansfield. In particular, Dr Mansfield stated regarding Mr Hatton’s medications:
They cannot be stopped and remain the best available for his condition.
50. Section 6 of the schedule sets out that reasonable treatment is treatment that is “feasible and accessible”. Professor Heard gave evidence that clinic “waiting lists are measured in months, I think”. Accessible in section 6 is explained as meaning “available locally at reasonable cost”. My understanding from the evidence of Dr Katekar and Professor Heard is that not only are there waiting times for the epilepsy clinics but they are not located in Mr Hatton’s vicinity and he would have to travel to Sydney. He is prepared to do this when Dr Katekar suggests the time has come but to find that his treatment to date has been less than reasonable because of the effect of the words “feasible and accessible” is going beyond the explanation set out in section 6, in my view.
51. I consider that I am entitled to make this finding without offending the dictum of Acting Justice Priestly in Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471, which was brought to my attention by the Secretary. His Honour suggested it was preposterous to make assumptions about the purpose of certain provisions without reading the whole and without reference to what preceded them. This sentiment echoes what was said by the court in Cooper Brookes which I have cited above. Priestley JA made the following observation in Patman (at 474) in relation to interpretation of a number of subsections in a statute:
"I have already remarked that if s.4(1) is read on its own then there is some plausibility in the defendant's contention. Obviously, however, it cannot be read on its own. Moreover, I see no reason why the Act should not be read in the ordinary way in which a document is read, that is, from the beginning onwards."
52. I have endeavoured to read the Act and section 6 of Schedule 1B in the ordinary way, from the beginning onwards and have concluded that Mr Hatton’s treatment has been reasonable according to the requirements. The evidence of his treating neurologist, Dr Katekar, as well as that of Dr Heard, is that Mr Hatton has been managed correctly to date. Mr Hatton also gave evidence that he has complete faith in Dr Katekar and is at a point now that the medication he is on gives him the least side-effects and prevents his generalised seizures. Dr Katekar is of the opinion that Mr Hatton’s medication has been optimised and any changes to his medication at this point are not likely to produce any material improvement in his seizure control. Dr Heard could also not be certain as to whether further treatment would result in significant functional improvement. Both Dr Katekar and Dr Heard agree that attendance at a clinic for further investigation and treatment is now an option that should be pursued. However, in my view, this does not mean that Mr Hatton’s condition was not already permanent at the date of the application according to the legislative criteria. It also does not mean that his current treatment is less than reasonable.
53. I also heard evidence from Dr Katekar that Mr Hatton’s epilepsy is an ongoing disability which may last for the foreseeable future and at least the next two years. Any further investigations through an epilepsy clinic will be a long and sustained process. On this basis, I find, on balance, that Mr Hatton was being treated for the condition of epilepsy. Before and at the time of the claim for the DSP, he was trialling a number of epilepsy medications so as to optimise management and control of his condition. He continues to take the medication that has produced the best result. This treatment is feasible, accessible and reasonable in all the circumstances
Was Mr Hatton’s Epilepsy Stabilised?
54. As to whether Mr Hatton’s condition had stabilised at the operative time, that is, when he applied for the DSP or in the following 13 weeks, I note that it is not necessary for the condition to be completely resolved or stabilised in order to meet the legislative requirements. For example, in Clarke and Department of Family and Community Services [2000] AATA 568, [ at 34] the tribunal said:
Like Dr De Graff I am also uncomfortable with the words "stabilised" and "permanent" as they appear in the notes introducing Schedule 1B. For my part I could imagine a condition or illness or injury being "permanent" but not being "stabilised" in the sense that it might either fluctuate in severity or in the production of incapacity or there may be occasions where symptoms and ability to work could be improved…
55. Dr Katekar’s report of 18 January 2007 supports a conclusion that Mr Hatton’s “medication refractory epilepsy” is permanent. Although Dr Katekar is open to more investigation and treatment, he has explained the indicators are that, after more than two years of trialling medications and allowing a 12 month period for the condition to stabilise with Topamax, the condition has settled to the best possible outcome before Mr Hatton is strong enough to undertake more trials. In addition, I attach weight to the opinion of Mr Hatton’s treating neurologist when he states that the condition is permanent. Both Dr Mansfield and Dr Katekar considered the condition permanent at the time of Mr Hatton’s application on 29 December 2005.
56. A condition must be stabilised before a person is eligible for the DSP. Paragraph 4 of the Introduction to the Tables in Schedule 1B states:
For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised…
57. The heading to paragraph 4 of the Guide uses the words “fully” and stabilised” in conjunction. However, I accept the respondent’s contention that a straightforward reading of the above passage taken from the Table indicates that the adjective “fully” only refers to a condition being fully documented and diagnosed rather than fully stabilised as well. The sentence next sets out that a condition, as well as being been fully documented and diagnosed, must have been “investigated, treated and stabilised”. In the end, little turns on whether the condition in question is fully stabilised or stabilised. In the present case, I accept the evidence that Mr Hatton’s epilepsy, irritable bowel syndrome and headaches have been stabilised according to any reasonable standard.
58. Paragraph 5 states:
The condition must be considered 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 … A condition may be considered to be fully stabilised if it is unlikely that there will be any significant functional improvement … within the next 2 years.
59. As to the meaning of the phrasing “more likely than not that it will persist for the foreseeable future… taken as lasting for more than two years”, I refer to cases indicating the word “likely” is well recognised as meaning the balance of probability or a significantly lesser degree of possibility. This was explained by Bowen CJ in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 339; (1979) 27 ALR 367 at 375 where he said
The word “likely” is one which has various shades of meaning. It may mean “probable” in the sense of “more probable than not” — “more than a 50 per cent chance”. It may mean “material risk” as seen by a reasonable man “such as might happen”. It may mean “some possibility” — more than a remote or bare chance. Or, it may mean that the conduct engaged in is inherently of such a character that it would ordinarily cause the effect specified.
60. Dr Mansfield and Dr Katekar had no expectation that Mr Hatton would improve further during 2005 and the next 12 months despite diagnosis and treatment. Mr Hatton has, throughout 2005 and continuing, consulted Dr Mansfield and had regular blood tests to assess the level of medication as well as consulting Dr Katekar. His medication has not been varied for at least 12 months as it has produced the best results and stability for Mr Hatton. Dr Mansfield, in his report of 10 March 2006, stated that Mr Hatton has required 2 medications continuously to control the seizures, that the medication cannot be stopped and that the medications he was taking were the best available. This report is within the 13 weeks of Mr Hatton’s application about his impairment at the time of his application.
61. Dr Mansfield’s report of 23 December 2005 further supports that conclusion that Mr Hatton’s condition was stabilised. In relation to his answer to question (i) on the form, Dr Mansfield has written and initialled his entry, “(T)he current impact of this condition on the patient’s ability to function is expected to continue for: more than 24 months.” Mr Hatton gave an oral explanation of how Dr Mansfield came to alter and initial the completed form. This was set out in paragraph 8 of the SSAT decision. The decision records that the amendment was related to the requirement to refer to 3 month periods when completing a medical certificate for some Centrelink certificates. Dr Mansfield completed the form in question for the purpose of satisfying the 2 year test suggested in the introduction and guidelines before permanence is accepted. The same doctor had previously completed certificates for three month periods as required for other Centrelink purposes.
62. As well, Dr Katekar’s report of 11 January 2006 indicates that Mr Hatton’s symptoms are controlled by the medication he receives. By comparison to his treating doctor’s perceptions and conclusions, the assessment of Dr Aus was prepared as a file review without any examination of Mr Hatton. However, I note that Dr Aus still considered the functional impact of Mr Hatton’s condition was permanent although she rated it at nil impairment points.
63. Dr Bonert’s report was prepared before Mr Hatton’s application for DSP and I consider later reports are more pertinent to Mr Hatton’s condition at the time of his application as his condition persisted and was treated under the same regime for a longer period when the later reports of Drs Mansfield and Katekar were written. While the case of Freeman v Secretary, Department of Social Security (1988) 87 ALR 506 is authority for the proposition that the decision maker must answer the question about an applicant’s condition as at the time of the decision to refuse the DSP, this is not to say that later reports cannot be countenanced when they relate to the applicant’s condition at the time of the application and the following 13 weeks. The court also stated that the tribunal may consider all the factual material before it. Therefore, I have taken into consideration all the material about Mr Hatton’s history in determining whether his condition was stabilised in December 2005.
64. A further report describes Mr Hatton’s condition as permanent on 24 August 2006. Dr Beiers, a rehabilitation specialist, prepared a medico-legal report, in which she stated she deals with the disability effects of multiple neurological conditions including epilepsy. She advised her opinion was that Mr Hatton’s impairment prevented him from working 30 hours or more per week and prevented him from undertaking educational vocation or on the job training. Dr Beiers also provided her opinion that Mr Hatton’s impairment at the time of examination was not significantly different to what it was on 29 December 2005 and concluded that his condition was diagnosed, treated and stabilised within 13 weeks of 29 December 2005.
65. Professor Heard’s report dated 15 September 2005 indicates that the basis for his concluding that the epilepsy was not stabilised was that Mr Hatton had not seen Dr Katekar for about 12 months and his medication had not been adjusted recently. On the strength of this, Professor Heard initially concluded that the current frequency seizure would be improved by further intervention. In oral evidence, Professor heard conceded that further investigation might result in an improvement to Mr Hatton’s epilepsy but that this was not certain. Professor Heard’s opinion carries a degree of speculation.
66. In his further report dated 27 November 2006, Professor Heard expressed an expectation that there will be a further reduction in Mr Hatton’s seizure frequency and a functional improvement. However, this opinion is qualified by Professor Heard’s own statement that it is subject to further information being obtained by Mr Hatton’s treating neurologist. Mr Hatton has further consulted Dr Katekar and Dr Katekar has presented all the information about Mr Hatton to date.
67. The Secretary also submitted that when the Tables refer to a condition it is usually implied that it is the resulting impairment that is being considered. This argument went on to suggest that, as the Tables are function-based rather than diagnosis based, they are designed to assess separate impairments rather than condition and it may therefore be less confusing if the term “impairment” is substituted whenever “condition” is used in Paragraph 4, 5, and 6 of the “Introduction”. After noting that the legislature has used not used the word impairment and that reference to condition should therefore be stated in Chhit and Secretary, Department of Family and Community Services [2004] AATA 744 [at 95 and 96] where it said:
95. The respondent, in its written submissions, lodged at the conclusion of the hearing alleged that the applicant’s condition at the date of claim (refer later) was then fluctuating, was accordingly, not yet "stabilised" and could not, then, be assessed as "permanent". We reject this submission. With respect we suggest that there is a failure to distinguish the condition from its symptoms. In our view, the notes at paragraphs 5 and 6 are inappropriate for the condition of schizophrenia, which is a permanent condition. In our view, the stability of the condition can only be assessed by the absence or presence of symptoms (and if present, the severity).
96 …Despite our reservations concerning the use and application of the Introductory notes to the Impairment Tables, the descriptions of Dr Cidoni are consistent with the language of paragraphs 5 and 6 above which deems a "condition" to be permanent, if, inter alia, it is stabilised. It does not refer to stabilisation of "symptoms". The fluctuation of symptoms, in our view, is a characteristic of this condition. It follows that the applicant does have a condition which has been "diagnosed", it has been (and continues to be) "treated" and it is "stabilised". The condition, in our view, was stabilised at the date of claim….
68. In my view, whether a condition is stabilised and permanent is a question of fact and a matter for expert medical opinion rather than tortuous legal debate. Dr Katekar as Mr Hatton’s treating specialist is in the best position to determine his condition. While Mr Hatton still has some symptoms of epilepsy, in the same way as the tribunal in Chhit considered the fluctuation of symptoms did not equal lack of stabilisation of the condition in question, I am satisfied, on balance, that Mr Hatton’s condition was stabilised at 29 December 2005.
Was Mr Hatton’s Epilepsy Permanent At The Date Of Application?
69. The introduction to the ‘Tables for the Assessment of Work-Related Impairment for Disability Support Pension’ contained to schedule 1B states that, 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. It goes on to say this will be taken as lasting for more than two years. The table goes on to say 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 two years. This requirement was recently considered in Stojanovic v Secretary, Department of Employment and Workplace Relations [2007] FCA 1086 where Emmett J held that there must be a comprehensive history and examination and a conclusion that the condition that the condition is permanent. I consider, on balance, that Mr Hatton had, at the time of his application, reached a point where it was unlikely there would be any significant functional improvement, with or without reasonable treatment, within the next two years. This is borne out by the evidence discussed below.
70. Mr Hatton’s treating neurologist, Dr Katekar, held the opinion that it was unlikely that there would be any significant functional improvement in Mr Hatton, despite the treatment to which Mr Hatton had responded best. Dr Katekar and Dr Mansfield expected no change within the next two years. After hearing the treating neurologist in this case, Dr Katekar, and Professor Heard, who urged further investigation and treatment of Mr Hatton, I formed the impression that they basically agreed that his condition had been well managed to date. Both neurologists recommended ongoing treatment and exhausting all avenues in the future and suggested the next stage was to refer Mr Hatton to a comprehensive epilepsy unit for more detailed investigation as well as advice on managing multiple drugs, noting that combinations of drugs are frequently necessary in treating epilepsy.
71. Professor Heard gave evidence that he considered Mr Hatton’s condition had been well managed. The professor was not critical of Dr Katekar’s treatment but expressed a strong opinion that the next step in investigation and treatment was best undertaken at a clinic. Dr Katekar did not disagree but simply pointed out that he had not proceeded with this step to date as Mr Hatton had been in such a poor state and had experienced so many severe symptoms it was best to let his condition stabilise for 12 months before exposing him to more experiments. Dr Katekar thought the time had now come when Mr Hatton might benefit by attending a clinic and undergoing further tests and investigations. This was not to say that Mr Hatton’s condition had not already been investigated, treated and stabilised in December 2005. Dr Katekar believed his condition had been optimally managed but that further investigation and improvement was always possible. He told the tribunal he was intending to recommend to Mr Hatton that he soon should consider more investigation now that his condition had been stable for some time and Mr Hatton might be sufficiently strong to undertake more tests.
72. Dr Heard, when questioned, agreed that one could not be certain that further investigations and attendance at one of the special epilepsy clinics would result in an improvement to Mr Hatton’s condition. He gave evidence that “it might make absolutely no difference at all but you don’t know until it’s been done”. As I have set out above at some length in relation to stabilisation, Mr Hatton’s condition has been stabilised although further investigation is contemplated.
73. On this basis, I find that at the time of the claim, or within 13 weeks from the date of the claim, Mr Hatton’s epilepsy was diagnosed, treated and stabilised and was this was likely to continue for at least two years, in accordance with the legislative provisions set out in section 94(1)(a) and schedule 1B of the Act.
74. I find further support for this conclusion in the judgment of Justice Gyles in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007). Justice Gyles held that satisfaction of section 94 did not require an applicant to foresee potential difficulties and obtain specialist advice and treatment before making a claim. It was not appropriate for the tribunal to reject a claim because a hypothetical third party might come to an adverse opinion. Such an approach he regarded as unsatisfactory bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. Justice Gyles said [at 16 and 17]:
17 It is 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. My initial impression, having read s 94 of the SocialSecurity Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis. Having considered the helpful arguments of counsel on the point, I remain of that view.
18 It may be expected that an applicant for a benefit such as involved here will present with a properly prepared application supported by a treating doctor. It does not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. No doubt, the 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. The Departmental procedures and manuals that are in evidence provide for that. That is 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. That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression.
75. The High Court in project Blue Sky v Australian Broadcasting Authority [1998] HCA 28 at 855, held that a court “construing a statutory provision must strive to give meaning to every word of the provision”. The Secretary suggested that schedule 1B terms must be given full weight and I agree with this proposition. However, speculation about the possible success of future treatment options is not a proper basis for a decision to reject a claim based upon epilepsy any more than it should be rejected when considering chronic pain or depression. While Professor Heard’s opinion is not mere hypothetical speculation, he has simply advised that further investigation should be pursued without condemning Mr Hatton’s treatment to date. This does not prevent me from finding the condition was permanent at the date of application. In view of the findings above about diagnosis, investigation and treatment and stabilisation, I accept the treating doctors’ opinion that Mr Hatton’s epilepsy condition was permanent at the time at which he applied for DSP.
Irritable Bowel Syndrome
76. As a result of taking epilepsy medication, Mr Hatton developed irritable bowel syndrome. This has improved but is still a permanent feature and side effect of Mr Hatton’s epilepsy and medication.
Headaches
77. Mr Hatton gave evidence his headaches have continued since he had his first seizure. Dr Mansfield reports that Mr Hatton’s headaches may be the result of medication as well as loss of concentration, poor memory and inability to focus. Dr Mansfield has also indicated that the headaches are a permanent side effect of the epilepsy medication. This is supported by Dr Katekar’s report of 18 January 2007.
78. Dr Beiers describes Mr Hatton’s headaches as well and describes the side effects of the medication as constant nausea, drowsiness and delayed responses, poor concentration and poor memory. As the medication is required on a permanent basis to treat Mr Hatton’s epilepsy, then the side effects are permanent. The headaches have been diagnosed treated and stabilised. Mr Hatton has been taking Inderal for his headaches as described by Professor Heard in his report of 15 September 2007. Professor Heard’s suggestion that the headaches started with the commencement of Topamax is inconsistent with Mr Hatton’s statement, and the report of Dr Williamz dated 20 September 2005. Mr Hatton was being prescribed Inderal at least at the time of Dr Mansfield’s report of 14 November 2005. It follows that the headaches were diagnosed treated and stabilised at the operative time.
Should Mr Hatton Have An Impairment Rating of 20 Points or More?
79. Mr Hatton must have an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act. Mr Hatton’s counsel conceded that his condition could not be properly considered under the tables until it was decided his condition was a fully documented, diagnosed condition which had been investigated, treated and stabilised. Nevertheless, there is evidence before me that Mr Hatton’s condition was appropriately rated at 20 points or more. Having found his epilepsy is permanent, I now turn to the impairment rating question.
80. Dr Beiers, in her report dated 24 August 2006, assessed Mr Hatton as having an impairment rating of 5 points for his daily absences and a further rating of 30 points for his prolonged absence seizures, noting that Mr Hatton’s condition has remained the same since his application for the DSP. Dr Beiers assigned a total impairment rating of 35 points for epilepsy. She then went on to give a further 20 points in relation to the effect of his medication, giving a total of 55 points for his impairment. The report of Dr Beiers is consistent with those of Dr Katekar, while Dr Heard made no assessment of the level of impairment in his reports or during his oral evidence. This was because he was not convinced the condition was permanent. As I am satisfied that Mr Hatton’s epilepsy is permanent, in accordance with the statutory definitions and requirements I accept Dr Beiers’ assessment of impairment as accurate. In addition, regarding irritable bowel syndrome, given that Mr Hatton’s anal fissure has been operated upon and has resolved but Mr Hatton experiences continued disruption to his bowel function as a consequence of his medication, I consider Dr Beiers’ approach is appropriate.
81. As well, a job capacity assessment report has been prepared by Ms Sueanne Trindall, dated 3 January 2007. I had the opportunity to hear oral evidence from Ms Trindall also. Ms Trindall said she based her assessment of Mr Hatton’s rating under the Impairment Tables on her acceptance of Dr Heard’s report and the resulting belief that his condition was temporary. In oral evidence, Ms Trindall indicated that, but for her assumption that Mr Hatton’s condition was temporary, she would rate his impairment for epilepsy at 50 points and his headaches at 10 points as well as assessing his current capacity for work at 0-7 hours per week. Her assessment of an increase in his capacity was based on the fact that she had considered his condition was temporary. Her job capacity assessment stated that Mr Hatton’s concerns about catching public transport were reasonable and that “Mr Hatton would, for his safety, require someone to travel with him on public transport.”
82. Dr Bonert assessed Mr Hatton’s epilepsy at ‘Nil’ but his report predated the application for DSP and his description of the impairment is inconsistent with the other evidence before me relating to the nature and frequency of the seizures suffered by Mr Hatton. Dr Aus’s report I also regard as less compelling evidence than the job capacity assessments carried out because it was prepared as a file review only.
83. Ms Trindall assessed Mr Hatton’s irritable bowel syndrome as permanent. However, Dr Beiers has not assessed this condition as a separate condition but, by virtue of the description of Mr Hatton’s history, has regarded it as part of the side effects of Mr Hatton’s medication.
84. Mr Hatton also suffers headaches which are addressed in a further table. The case of McKenna v Repatriation Commission (1995) 39 ALD 254, is authority for the proposition that each table should be given its full weight and not limited or affected by a calculation made under another table. Mr Hatton’s seizures and headaches are susceptible of consideration under separate tables.
85. Ms Trindall concluded in her report that the headaches were a temporary condition, but qualified this by saying:
However, if the anxiety and depression are ruled out as a cause and the headaches are a result of the mediation (sic) they should be rated as a permanent condition ….
86. With regard to the suggestion by Professor Heard that the headaches may be caused by stress and anxiety, Mr Hatton and Dr Mansfield reported they commenced at the time of the first seizure and they have been documented as side effects of the medication. Therefore, on balance, I find it is likely they are a result of the medication. In addition, such a statement by Dr Heard is inconsistent with his earlier history that the headaches commenced after Mr Hatton started taking Topamax. As a result, I accept Dr Beiers’ assessment of the side effects of the medication as being permanent and attracting an impairment rating of 20 points.
87. As I have concluded that Mr Hatton’s epilepsy and irritable bowel syndrome were permanent at the time of his application, and his headaches are a permanent side effect of his medication, I find that Dr Biers’ and Ms Trindall’s revised assessment in oral evidence based on permanent conditions, are the best available evidence of assessment of Mr Hatton’s impairment according to the tables. As Dr Beiers and Ms Trindall have assessed Mr Hatton’s impairment ratings at 55 and 50 impairment points respectively, once it is accepted his conditions are permanent, I find that Mr Hatton does have an impairment rating of at least 20 points ascribed under the Impairment Tables contained in Schedule 1B of the Act.
Does Mr Hatton Have a Continuing Inability to Work?
88. Dr Mansfield expressed the opinion that Mr Hatton was unfit for work on 28 February 2005, 24 May 2005, 28 August 2005, 4 November 2005 and 23 December 2005. By virtue of my finding that Mr Hatton’s condition is permanent or long term and not improving beyond the point achieved at the time of the application, it is unlikely he will be able to return to work in six to twelve months. The clinical opinion of Dr Mansfield and De Beiers that he could not work around the date of application has been born out by events since the date of application in December 2005. Mr Hatton is still experiencing the same level of symptoms. In Hudson and Department of Family and Community Services [2000] AATA 502 (22 June 2000) [at 47 and 48] the Tribunal considered subsequent events had some bearing on a decision about the likelihood of a return to work at the date of application:
47. The Tribunal, in considering the longitudinal clinical history of the Applicant both prior to, and during the operative period, is drawn towards the clinical opinion of Dr Manners, in that it would appear to the Tribunal that he has weighed the various clinical issues at the time in a manner which gave the necessary weight to the nature of the significant clinical events that had occurred in the Applicant's abdominal condition prior to the operative period. That his clinical opinion was born out by subsequent events is a matter which the Tribunal is allowed to consider in so far as it assists the Tribunal in achieving a greater understanding of the clinical condition during the operative period.
48. As a consequence of the Tribunal's acceptance of Dr Manners' opinion in part and further because of the Tribunal's particular consideration of the Applicant's longitudinal clinical history of the abdominal condition prior to and during the operative period, and the clinical history after the operative period in so far as it permits a better understanding of the chronicity of the Applicant's abdominal condition during the operative period, the Tribunal finds that the Applicant was not fit to work in any capacity for two years from the time the claim was lodged in October 1997.
89. As Mr Hatton applied for the DSP in December 2005, section 94(5), as it was in December 2005, applies in determining his capacity at that date, that is, “work” means work of at least 30 hours per week. Dr Beiers addressed the issue of whether Mr Hatton’s impairment prevented him from working for at least 30 hours per week within the next two years under the legislation as it was at the time of the claim for DSP. Dr Beiers gave the opinion that:
Mr Hatton’s impairment of itself (daily absence events and once to twice weekly prolonged absence events with postictal period) would prevent him from doing any work for at least 30 hours per week within the next two years. The reasons for this are that Mr Hatton is trained predominantly in a manual labouring capacity which involves accessing scaffolding, working at heights, machining, customer service, which involves getting up on heights to carry large loads of wood, driving fork lifts and doing truck deliveries. In the presence of seizure activity he should not be operating machinery, or working at heights… It is predominantly for Mr Hatton’s safety that I would recommend against working for 30 hours per week in his normal capacity.
90. She went on to state that Mr Hatton’s impairment, of itself, would prevent him from being able to undertake educational vocational training or on the job training. Mr Hatton’s medications do not completely relieve the symptoms of his epilepsy and, in addition, they have side effects of decreased memory, drowsiness, delayed response times, poor working memory and debilitating headaches. Dr Beiers concluded “(T)hese in combination make it difficult to learn new tasks and participate in on the job training”.
91. Professor Heard’s report of 27 November 2006 supports Mr Hatton’s claim to the extent that it describes the significant effects of his impairments at that time. However, Professor Heard’s conclusion about the duration of the impairment is predicated on the fact that Mr Hatton had not consulted his neurologist for 12 months. My findings about permanence mean that I prefer to rely on the opinion of Dr Katekar as provided in his report of 18 January 2007. I therefore find that Mr Hatton has a continuing inability to work. This is consistent with clinical opinions around the time of the application and since.
92. On 3 January 2007, in her job capacity assessment, Ms Trindall assessed Mr Hatton as having a temporary inability to work. Ms Trindall’s conclusions were based on the assumption that Mr Hatton’s condition was temporary. Ms Trindall’s comments on page 6 of her report include:
Based on Dr Heard’s report Mr Hatton’s epilepsy was not considered to be fully treated. Following further intervention from a neurologist or specialist epilepsy clinic his condition can be rated at permanent (regardless of any improvement or lack thereof in his current symptoms).
93. On page 5 of her report, Ms Trindall assessed Mr Hatton’s temporary incapacity for work. She explained:
Mr Hatton was working full time prior to the onset of this medical condition it is anticipated that without his current medical condition he would have continued to work full time.
Mr Hatton currently has 0 hours work capacity due to severity and frequency of his symptoms.
94. With regard to these comments, Mr Hatton accepts in written submissions before me that he would be fit for work if he did not suffer from his medical condition. Furthermore, Ms Trindall has stated that Mr Hatton at the time of her assessment had no current capacity for work because of his symptoms. On page 6, Ms Trindall describes the impediments which Mr Hatton’s epilepsy would place in his path to work at the time of her assessment. As I have already found Mr Hatton’s condition is permanent, Ms Trindall’s conclusions about Mr Hatton’s future capacity to work do not assist a decision on this question.
95. Neither Dr Aus nor Dr Bonert is an occupational physician or rehabilitation specialist and they have not treated Mr Hatton. As Dr Beiers is a rehabilitation consultant and prefer her opinion for this reason. See Re Sargeant and Secretary, Department of Family and Community Services [2005] AATA 1076. I also prefer the conclusions of Dr Mansfield and Dr Katekar about Mr Hatton’s continuing inability to work as they have seen him on several occasions for treatment and overall assessment.
Conclusion
96. Mr Hatton’s conditions have been diagnosed, treated and stabilised at the operative period, around 29 December 2005. He has an impairment rating of 50 to 55 points and therefore at least 20 points. His impairment has resulted in a continuing in ability to work as defined in section 94. Consequently, Mr Hatton was entitled to receive the DSP from 29 December 2005.
Decision
97. The decision of the Social Security Appeals Tribunal is affirmed.
I certify that the 97 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt
Signed: Talaishia Collis
AssociateDate/s of Hearing 22 – 23 March 2007
Date of Decision 7 August 2007
Solicitor for the Applicant Mr Gavin Jensen – Sparke Helmore LawyersSolicitor for the Respondent Mr Jerome McClintock – Legal Aid Commission of New South Wales
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