Hood and Secretary, Department of Education, Employment and Workplace Relations
[2009] AATA 345
•14 May 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 345
ADMINISTRATIVE APPEALS TRIBUNAL )
) Nos 2007/1810 ) 2007/5950
GENERAL ADMINISTRATIVE DIVISION ) Re NEIL HOOD Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Miss EA Shanahan Date14 May 2009
PlaceMelbourne
Decision The Tribunal affirms both reviewable decisions.
[sgd] EA Shanahan
Member
SOCIAL SECURITY – application to backdate the disability support pension – medical condition of grand mal epilepsy – refusal to take medication – cancellation of DSP – condition now medically controlled – no seizures for three months – decisions affirmed.
Social Security Act 1991 s 94(1), s 94(2), s 94(5)
Impairment Tables – Schedule 1B
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48
REASONS FOR DECISION
14 May 2009 Miss EA Shanahan 1. Mr Hood was granted disability support pension (DSP) on 28 April 2004 having previously received newstart allowance commencing 26 June 1991 and continuing until at least late 1998. On 8 August 2005 Mr Hood claimed his DSP should be backdated to 26 June 1991. His claim was rejected by a Centrelink delegate and the decision was affirmed by the Social Security Appeals Tribunal (SSAT) on 30 April 2007 (Application 2007/1810). On 7 June 2007 Centrelink initiated a medical review to ensure that Mr Hood’s condition of grand mal epilepsy remained disabling and that his current payment was correct (ST214). This review included a Job Capacity Assessment and the consideration of further reports from Mr Hood’s treating doctors. Following the assessment Mr Hood’s DSP was cancelled on 10 July 2007 (Application 2007/5950). The decision to cancel DSP was affirmed by the SSAT on 27 November 2007. Mr Hood applied to the Administrative Appeals Tribunal (the Tribunal) for a review of both decisions.
2. Mr Hood was self represented and Mr Pat Carson an advocate with Centrelink appeared for the Respondent. Centrelink is an agency of the Respondent. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Doc and ST Doc). The parties tendered the following:
for the Applicant;
1.The Royal Children’s Hospital medical records concerning Mr Hood – Exhibit A1
2.Mr Hood’s diary and his summary of his illness and various applications – Exhibit A2
3.The clinical notes of Dr Benedict Burke – Exhibit A3
4.Two copies of the report from Dr Burke dated 26 July 2008 – Exhibit A4
5.Transcript of the sentencing of Steven Scocic in the Supreme Court of Victoria – Exhibit A5
6.A report from Dr Benedict Burke dated 28 June 2007 – Exhibit A6
7.A letter from the Office of Public Prosecutions dated 17 April 2007 outlining Mr Hoods involvement in the Scocic trial – Exhibit A7
and for the Respondent
1.The T and ST documents – Exhibit R1
2.A copy of Dr Burke’s letter of 28 June 2007 – Exhibit R2
3.Letter from Associate Professor Butler dated 1 April 2009 – Exhibit No R3
4.A report of Dr Robert Hjorth dated 11 June 2008 – Not tendered but assigned Exhibit No R4
5.Report of Dr Therese Paulson dated 29 July 2008 – Not tendered but assigned Exhibit No R5
3.Mr Hood, Ms Susan Hood, Ms Megan Stuart and Dr Robert Hjorth gave evidence before the Tribunal.
BACKGROUND TO THE APPLICATION
4. Mr Hood was diagnosed with idiopathic grand mal epilepsy in 1971 when aged 13 and treatment with Dilantin was commenced (Royal Children’s Hospital records Ex A1). He ceased taking anti-epileptics early in 1976. He told the Tribunal he believed this medication would turn him into a zombie and although he later trialled Epilem, this medication had caused urinary and bowel incontinence.
5. The epilepsy remained in abeyance from 1971 until 1992 when the seizures recurred. Mr Hood attributed the recurrence of the seizures to his and his wife’s involvement in an armed assault by Mr Steven Scocic. Mr Scocic was demanding payment of a debt incurred by Mr Hood. On the same day as this assault Mr Scocic committed a robbery and in the course of being apprehended, shot and injured a policeman. Mr and Mrs Hood were required to give evidence for the Crown in Mr Scocic’s trial in the Supreme Court of Victoria in October 1993. Mr Scocic was jailed for five and a half years. Mr Hood believes he needed to be alert in order to protect his family when Mr Scocic was released from prison and to do so he must be free of the sedating side effects of anti-epileptic drugs.
6. Mr Hood’s seizures have always been nocturnal, occurring between 4.00am and 6.00am. From 1992 until early 2004 the seizures occurred every 10 weeks but since 2004 the frequency has increased to once every four to five weeks (Mr Hood’s diary Ex A2). The seizures have been observed and described by Mr Hood’s former wife Susan Hood and by Ms Megan Stuart who has lived with Mr Hood for the past 15 years. Their descriptions were that of classical grand mal epilepsy with forceful tonic-clonic muscle contractions usually with hypersalivation and biting of the tongue. The seizures lasted up to 10 minutes and were followed by postictal somnolence, frequent nausea and vomiting, headache and muscle aches and pains lasting up to four days. During the clonic phase Mr Hood has on occasions fallen through windows, fallen into a fishpond and become wedged between the toilet and toilet wall. In the postictal phase he was unable to work. He has worked for up to 20 hours per week as a part time maintenance man for the real estate agent, Ray White.
7. In 1992 and again in 1998 Mr Hood was referred to and investigated by Dr Russell Rollinson, neurologist. Dr Rollinson confirmed the diagnosis of grand mal epilepsy of unknown origin, performed electroencephalograms and a CT of the brain. No neurological lesion was found. Medication with anti-epileptics was advised although Dr Rollinson noted Mr Hood’s reluctance to take such medication. Dr Rollinson reported that Mr Hood was using marijuana as an anti-epileptic having been advised by a doctor in England that such use of marijuana could control seizures.
8. On 24 March 2004 Mr Hood provided Centrelink with a medical certificate which reported that he was suffering from grand mal epilepsy. This led to Centrelink obtaining further medical assessments from the treating general practitioner Dr Varney and also sought the opinion of Dr Hilal of Health Services Australia. Based on Dr Hilal’s report DSP was granted on 25 May 2004. Dr Hilal had assessed Mr Hood’s disability as attracting an impairment rating of 20 points.
9. In late 2006 Mr Hood asked Centrelink to reconsider the date from which his DSP should be paid. He had argued that DSP should have been granted in 1994 instead of newstart allowance. A reconsideration was conducted by a Centrelink Customer Service Officer who concluded that the decision was correct and should not be changed. This decision was affirmed by an Authorised Review Officer (ARO) on 23 January 2007. The SSAT subsequently affirmed this decision on the basis that Mr Hood had not applied for DSP before January of 2004. Thus payment could not be backdated as the legislation did not so provide.
10. A periodic review of Mr Hood’s eligibility for DSP was initiated by Centrelink on 7 June 2007. A Job Capacity Assessment was undertaken on 15 June 2007, Mr Hood’s grand mal epilepsy was considered to be permanent but his seizures were infrequent. The assessor has recorded that seizures occurred approximately every three months. Between the seizures Mr Hood suffered minimal or no impairment. Using Table 21.1 under Schedule 1B - Tables for the assessment of work-related impairment for disability support pension (the Impairment Tables) a level of severity of three was obtained and a Grading Code of C was deduced from Table 21.3. The final impairment rating using Table 21.4 was zero. Mr Hood was found to have a work capacity of greater than 30 hours per week. It was also recorded that his epilepsy was self managed and that he was not taking anti-epileptics. Dr Varney, Mr Hood’s then treating general practitioner, had also provided a report stating the seizures occurred every 10 weeks. Mr Hood was still able to work as a maintenance main for a real estate agent. Dr Varney also reported that from 13 April 2007 Mr Hood had reduced his cannabis consumption resulting according to Mr Hood in an increase in the frequency of his seizures from every three months to monthly. Based on these reports Mr Hood’s DSP was cancelled on 10 July 2007. Mr Hood applied to the AAT for a review of both decisions, that is, the refusal to backdate his DSP to 1994 (or 1991) and the cancellation of his DSP on 10 July 2007.
11. Prior to the hearing of this matter Mr Hood changed general practitioners and subsequently provided a report from his new doctor, Dr Benedict Burke dated 14 August 2007 and from Associate Professor Butler, neurologist, to whom Dr Burke had referred him for further management of the grand mal epilepsy. Associate Professor Butler provided a report dated 1 April 2009. Both Dr Burke and Associate Professor Butler assessed Mr Hood’s impairment rating at 25 points. In December 2008 Associate Professor Butler commenced Mr Hood on treatment with the anti-epileptic drug Tegretol. Since commencing Tegretol Mr Hood has not suffered any further seizures.
12. The Respondent obtained an opinion from Dr Robert Hjorth, neurologist, who confirmed the diagnosis of grand mal epilepsy and expressed his concern regarding Mr Hood’s judgement and insight into his condition, his poor memory, Mr Hood’s fixed belief that anti-epileptic drugs would make him worse and be harmful and opined that rehabilitation would not be effective given Mr Hood’s intellect and his attitude. Dr Hjorth considered the prescribing of anti-epileptic drugs would represent reasonable treatment and advised that there were numerous anti‑epileptic drugs available that could be tried. Dr Hjorth assessed Mr Hood at Level 6 during his actual fits and the postictal status as Level 3. This attracted an impairment rating of 5 points. Dr Hjorth did however express his concern regarding his unfamiliarity with the assessment process and Impairment Tables. In his evidence before the Tribunal Dr Hjorth confirmed his written opinion and informed the Tribunal that Mr Hood’s reasons for rejecting Dilantin and Epilim were not sound as both had few side effects. He regarded Mr Hood’s attitude in refusing such medication as being self‑destructive and not reasonable. When informed of Mr Hood’s response to Tegretol and the absence of any seizures for over three months Dr Hjorth stated that this indicated that Mr Hood’s epilepsy was easy to control. In cross examination by Mr Hood, Dr Hjorth agreed that it was possible that he underestimated his impairment rating, particularly in relation to his postictal period. Dr Hjorth indicated that such an assessment in the postictal period would be dependent on whether the individual was assessed immediately after the seizure or over the entire four days post seizure and this was the question for the Tribunal.
13. Given Dr Hjorth’s concern regarding his impairment rating of Mr Hood, Centrelink had sought the opinion of Dr Paulson who is experienced in calculating such ratings. She assigned an impairment rating of 15 points.
14. The oral evidence and documentary evidence before the Tribunal has been summarised under background to the application.
LEGISLATION
15.Section 94 of the Social Security Act 1991 (the Act) concerns the qualification for DSP. Section 94(1) states:
(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;
(ii) the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and …
16.Section 94(2) concerns 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 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(5)In this section:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
17.The introduction to the Impairment Tables contained in Schedule 1B of the Act state as follows:
4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future;
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
·treatment that is feasible and accessible 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.
In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should:
·evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and
·indicate why this treatment is reasonable; and
·note the reasons why the person has chosen not to have treatment.
SUBMISSIONS
18. Formal submissions were not made. The Respondent requested that the Tribunal affirm both decisions and the Applicant asked that they be set aside.
TRIBUNAL’S DELIBERATIONS
19.The issues for determination by the Tribunal are:
1.should Mr Hood’s DSP be backdated from April 2004 to 1991 or alternatively 1994; and
2.was the decision to cancel his DSP correct.
20. Mr Hood did not qualify for DSP prior to 28 April 2004 having first applied for DSP and provided information to Centrelink regarding his epilepsy in January of that year. The medical certification provided to Centrelink prior to that date in support of his ongoing newstart allowance referred to back pain and anxiety. The legislation does not provide for back dating prior to the date of claim for the DSP.
21. It is unclear as to why Dr Hilal assessed Mr Hood’s impairment rating under Schedule 1B at 20 points on 28 April 2004, given that Mr Hood’s epilepsy was then untreated and not fully stabilised. The Tribunal can only assume that Dr Hilal had accepted Mr Hood’s reasons for refusing anti-epileptic medication.
22. The Tribunal affirms the reviewable decision of 30 April 2007 rejecting Mr Hood’s application to have his DSP backdated to 1991 on the basis that he did not claim DSP before January 2004.
23. The cancellation of Mr Hood’s DSP was based on the reassessment of his grand mal epilepsy and the impairment rating points attracted following the assessment. The question was also raised of whether Mr Hood’s refusal to take anti‑epileptic medication was reasonable. He firmly believed the condition could be controlled by the use of marijuana and that the two anti-epileptic drugs he had taken in the past had been harmful to his health.
24. In the Full Federal Court decision in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 the Court said at paragraphs 38 and 39:
[38] In this case it is quite clear from the context provided by cl 6 of the Introduction … that whether the person’s reason for refusing treatment is compelling is to be determined by the relevant medical officer. When the Introduction refers to functional improvement not being expected or there being “a medical or other compelling reason” for the person not undergoing further treatment, it does not contemplate separate decision makers. It is the medical officer who must assign impairment rating and it is he or she who must decide if the reason for the person not undertaking treatment falls within the circumstances identified in the Introduction.
[39] As Mr Hanks put it, the appropriate question for the decision maker to ask is, “Am I satisfied that there is a reason that compels, in this case, Mr Jansen … not to undertake treatment?” Put this way it is not a choice between mutually exclusive objective and subjective tests but a simple formulation which involves some elements of each. We agree that is the correct approach to the construction of cl 6. …
25. Dr Hjorth has opined that Mr Hood’s refusal to take anti-epilepsy medication was not reasonable as there are numerous such drugs available to be trialled and these were unlikely to produce unacceptable side effects. This opinion has since been validated by Mr Hood’s tolerance of the drug Tegretol the use of which has resulted in complete control of his epilepsy since early December 2008.
26. At the time of cancellation of Mr Hood’s DSP his condition of grand mal epilepsy was not fully treated and should not have attracted an impairment rating. The various ratings assigned by Doctors Burke and Hjorth in 2008 and Associate Professor Butler in early 2009 were premature as treatment had not been optimal and Mr Hood’s past refusal of treatment was not reasonable.
27. The Tribunal affirms the reviewable decision to cancel Mr Hood’s DSP.
I certify that the (twenty-seven) 27 preceding paragraphs are a true copy of the reasons for the decision herein of
Miss EA Shanahan, MemberSigned: [sgd] Leah Berardi
ClerkDate of Hearing 6 April 2009
Date of Decision 14 May 2009
Self Represented Applicant Mr Neil Hood
Advocate for the Respondent Ms Ailsa Bramley, Legal Services Centrelink
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