Re Baum and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 1066
•28 November 2008
CATCHWORDS – SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether impairment rating of 20 points or more under Impairment Tables – whether impairment must be assessed under Impairment Tables by a medical officer – whether conditions documented, diagnosed, treated and stabilised – assessment of medical officer of determinative - decision affirmed.
PRACTICE AND PROCEDURE whether assessment under Impairment Tables must be made by a medical officer – whether in reviewing decision refusing to grant disability support pension Tribunal may make its own assessment under Impairment Tables – powers and discretions of Tribunal – provided condition documented, diagnosed, treated and stabilised, Tribunal must accept assessment of medical officer – Tribunal not empowered to make its own assessment under Impairment Tables.
Acts Interpretation Act 1901, s 8
Administrative Appeals Tribunal Act 1975, ss 25 and 43(1)
Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 24(5) and 28
Social Security Act 1991 ss 23(1), 94(1) and (2), 593, 601, 603C, 603F and Schedule 1B
Social Security (Administration) Act 1999 ss 41(1), 42, 179, Schedule 2, cll 3(1) and 4(1)
Social Security Amendment Act (2007 Measures No 2) Act 2007, ss 2(1), 3 and Schedule 1, items 7, 36-48
Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997, s 3 and Schedule 16, item 4
Veterans’ Entitlements Act 1986 ss 21A and 29
Drake v Minister for Immigration (1979) 24 ALR 577
Esber v Commonwealth of Australia and Another (1992) 174 CLR 430; 106 ALR 577
Re Costello and Secretary, Department of Transport (1979) 2 ALD 934
Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48
Shi v Migration Agents’ Registration Authority (2008) 248 ALR 390
Surinakova v Minister for Immigration and Ethnic Affairs (1991) 33 FCR 87; 26 ALD 203
TheHospital BenefitFund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225; 28 ALD 50; 111 ALR 1
Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15
DECISION AND REASONS FOR DECISION [2008] AATA 1066
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2007/5490
GENERAL ADMINISTRATIVE DIVISION )Re:MICHAEL JOHN BAUM
Applicant
And:SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 28 November 2008
Place: Melbourne
Decision:The Tribunal affirms the decision of the Social Security Appeals Tribunal dated 25 October 2007.
SA Forgie
Deputy President
REASONS FOR DECISION
Mr Baum had been receiving Newstart Allowance under the Social Security Act 1991 (SS Act). Normally, he would have had to comply with the Activity Test in order to receive that payment. He was exempt from compliance, though, because he gave Centrelink medical certificates certifying that he was incapacitated because of medical conditions and, in particular, those arising from a urinary tract condition. Mr Baum has suffered from that urinary tract condition since early childhood. The law, which is set out in the SS Act, does not permit Centrelink to exempt Mr Baum from compliance with the Activity Agreement for an indefinite period. When it appeared to them that his urinary tract condition was permanent, an officer wrote to Mr Baum suggesting that the Disability Support Pension (DSP) might be a more appropriate payment for him. The officer sent him a claim form for DSP.
Mr Baum completed and returned the claim form for DSP. Unfortunately, when an officer of Centrelink[1] assessed his claim, that officer formed the view that Mr Baum did not qualify for a DSP. The qualifications for a DSP are more onerous than those that permitted Centrelink to exempt Mr Baum from compliance with the Activity Test in order for him to receive Newstart Allowance. One of the requirements for a DSP, for example, is that Mr Baum’s impairment from his condition be able to be assigned a rating of at least 20 points under the Impairment Tables. The Impairment Tables are part of the SS Act and do not allow any flexibility to take account of each person’s particular circumstances. The delegate of the Secretary of the Department of Education, Employment and Workplace Relations (Secretary) decided that Mr Baum’s urinary tract condition attracted a rating of only 10 points. That meant that Mr Baum did not fulfil one of the requirements for a DSP and so did not qualify for it.
[1] They exercise powers under the SS Act that have been delegated to them by the Secretary of the Department of Education, Employment and Workplace Relations (Secretary).
The rating was assigned by Mr Baum’s medical practitioners who, in my view, are the appropriate persons who have power to make an assessment under the Impairment Tables. In light of their assessments, I have decided that Mr Baum’s claim for DSP must be refused under the law. There is evidence that he is also suffering from depression and anxiety but that is not a condition that has yet been documented, diagnosed, treated and stabilised. Only conditions that meet that description can be assessed under the Impairment Tables. It may be that he has received further treatment for that condition and that it has stabilised. If that were the case, any impairment he continues to suffer from it could be assessed under the Impairment Tables and added to the rating he received for his urinary tract condition. That might take Mr Baum to a rating of 20 points or more. That would not mean that he is automatically entitled to a DSP for there would remain the question whether he has a continuing incapacity for work. I have not considered that issue although I have set out the evidence on that issue but note that it is contradictory.
Until Mr Baum lodges another claim for DSP, his entitlement to it cannot be assessed. As I explained to him during the hearing, his entitlement to DSP can only be considered in relation to a 13 week period of time after he lodged his claim. In circumstances in which he considers that his condition is deteriorating or in which he suffers impairments from additional conditions, it is imperative that he lodge further claims so that his entitlement to DSP can be considered in periods of time subsequent to his initial claim. Although he made it clear that he did not want to take this path, I fear that his focus on the past is making him blind to the need to ensure that he takes all steps to protect his current position. It may be that he will be disappointed again or he may not be. Unless he makes another claim for DSP having had all his conditions documented, diagnosed, treated and stabilised, he will never know.
THE EVIDENCE
There was no disagreement between Mr Baum and Mr Noonan as to the events that have occurred in the past. Their disagreement centres on the rating that should be attributed to Mr Baum’s impairment and on whether he has a continuing inability to work. They agree that he has an impairment.
Events preceding Mr Baum’s claim for DSP
Mr Baum was receiving payments of Newstart Allowance under the Social Security Act 1991 (SS Act) but he has suffered from a urinary tract condition since early childhood. That condition has led to his having to self-catheterise, to his suffering intense groin pain from time to time and to his being hospitalised when his bladder becomes obstructed. When a medical practitioner certified that he was unfit to work for at least eight hours each week, Mr Baum did not have to comply with the Activity Test which he would otherwise have had to do in order to remain qualified for the Newstart Allowance.[2] This follows from the fact that a person who is incapacitated for work because of sickness or accident does not have to do so if, among other matters, that incapacity is, or is likely to be, of a temporary nature.[3]
[2] SS Act, ss 593(1)(b) and 601
[3] SS Act, s 603C
Exemption from the Activity Test cannot be given on that basis for an indefinite period. If the Secretary were to decide that the person should undertake an activity or activities that are suitable for him, exemption ceases when the person enters a Newstart Activity Agreement or fails to do so.[4] Even if the Secretary does not make a decision of that sort, s 603F of the SS Act imposes a time limit on the period for which a person may be exempt because of sickness or injury. Those time limits are imposed by reference to particular circumstances but the principle underpinning all of them is that exemption from the Activity Test because of incapacity because of a medical condition is only given for people who are temporarily incapacitated. Exemption is not given for those people who have ongoing incapacity due to a permanent condition.
[4] SS Act, s 603C(1)(c)
This was in the mind of the officer of Centrelink who wrote to
on 2 February 2007.[5] The officer wrote that a recent review of Mr Baum’s Newstart Allowance had indicated that a DSP might be a more appropriate payment for him and enclosed a claim for DSP Newstart Allowance could not continue to be paid to him as his medical condition had been assessed as affecting him on a long-term basis. Consequently, Mr Baum was invited to complete and return the claim for DSP. Centrelink would continue to pay Newstart Allowance payments to him while it assessed his claim for DSP.
Mr Baum
[5] Documents lodged under s 37 of the Administrative Appeals Tribunal Act 1975 (T documents) at 28-29
Mr Baum’s claim for DSP and supporting medical evidence
Mr Baum lodged a claim for DSP on 16 February 2007.[6] Centrelink already had a medical certificate dated 19 December 2006.[7] This had been completed by Dr Deepak Aggarwal, who certified that Mr Baum had been his patient and a patient of the practice since 19 December 2001. Dr Deepak Aggarwal certified that Mr Baum was suffering from a condition he diagnosed as urinary retention and had done since 19 December 1975. He described the functional symptoms as “urinary retention, discomfort” that were likely to persist. In his opinion, Mr Baum had been unfit for work from 19 December 2006 to 7 January 2007. Mr Baum was then unable to do his usual work or other work for eight hours or more per week. Dr Aggarwal showed Mr Baum’s past, current and proposed treatment regime as intermittent self catherization.
[6] T documents at 22-25
[7] T documents at 26
Dr WK Kuay also completed a medical certificate. His is dated 10 January 2007 and certified that Mr Baum had been his patient since 1999. Dr Kuay also certified that Mr Baum was unfit for work from 10 January to 10 March 2007. Mr Baum could not then do his usual work and could not do any other work for eight or more hours each week. Dr Kuay described the medical condition having an impact on Mr Baum’s capacity for work as “Neurogenic bladder P/H ureteric re-implantation. Intermittent functional obstruction”.[8] The medical certificate asked
to describe the likely persistence of the symptoms or if he was uncertain what they were likely to do. Dr Kuay chose to mark the box “Likely to persist”.
Dr Kuay[8] T documents at 27
Dr Jonathan Ord, who had been Mr Baum’s treating doctor since
17 October 2006,[9] completed a form entitled “Treating doctor’s report”.[10] His diagnosis of Mr Baum’s condition is that of “dysfunctional voiding”.[11] It is a confirmed diagnosis and no further investigations or test are planned to confirm the diagnosis. Dr Ord noted that Mr Baum had probably suffered from it since early childhood.
He set out the history of Mr Baum’s condition and his current symptoms as:
“Unable to empty bladder. When at worst gets loin pain needing analgesia but is not on regular analgesia.”[12]
Dr Ord described Mr Baum’s current treatment as “Intermittent self catherisation (ISC) four times a day to continue indefinitely”.[13] Mr Baum had been very compliant with the treatment and his condition is now stable and expected to persist for more than two years.
[9] T documents at 36
[10] T documents at 30-37
[11] T documents at 31
[12] T documents at 31
[13] T documents at 32
When asked to describe how Mr Baum’s condition affects his ability to function, Dr Ord wrote:
“He has attended emergency at least (since July 06) four times with loin pain, one time resulting in admission for catheter and analgesia for 2 days (29th to 31st Dec 06) in the last six months. Otherwise he functions well.”[14]
He expected the impact of Mr Baum’s ability to function to continue for more than two years. Within the next two years, Dr Ord expected Mr Baum’s condition to remain unchanged and wrote:
“Now he is on regular ISC he should need attend emergency less and has not been for 3 months.”[15]
[14] T documents at 32
[15] T documents at 32
Dr Ord wrote:
“He claims people will not employ him when he informs them of his need to self catheterise. However there is no reason why someone on ISC cannot have a job, the only difference here is the past need/recurrent attendances at emergency which hopefully is now a thing of the past.”[16]
[16] T documents at 35
Job Capacity Assessment Reports dated 16 October 2006 and 6 March 2007
Ms Lorraine Nicholson prepared a Job Capacity Assessment Report (JCA report) on 16 October 2006 after a meeting with Mr Baum. She assessed his capacity for work as a capacity for light less skilled work for 23 to 29 hours each week. She gave shop work as an example of work for which Mr Baum had a capacity. Ms Nicholson referred to Mr Baum’s urinary tract condition and its treatment. The barriers she noted were his endurance limitations due to his having to have treatment, his frequent trips to hospital and treatment demands and his job seeking skills. She recommended that his job seeking requirements be reduced to 15 to 22 hours per week for the following six months but that they be increased to 23 to 29 when he was better able to function. Ms Nicholson recommended that he be re-assessed in 12 months and that he be referred to Job Network.
Ms Nicholson prepared a second JCA report on 6 March 2007 after a face to face discussion with Mr Baum.[17] The professional discipline of the person preparing the JCA report was described as “Other”.[18] It described Mr Baum’s condition as “Urinary Tract Conditions”[19] and as a permanent condition. On the basis of the treating doctor’s report, it noted that Mr Baum had to insert a catheter several times a day. It went on to assign an impairment rating of 10 on the basis of Table 16 of the Impairment Tables on the basis that the functional impact upon Mr Baum was “Chronic urinary obstruction needing regular catheterisation’. The supporting reasons were given as:
“Table 16 – 10 points – Client requires regular use of catheter to empty bladder.”[20]
[17] T documents at 47-52
[18] T documents at 46
[19] T documents at 47
[20] T documents at 47
The JCA report also noted what it described as “barriers”.[21] The barriers were noted as episodic fluctuations, frequent hospitalisations/treatment demands and motivation. Mr Baum was also noted as being substantially affected by each barrier. The JCA report went on to state that Mr Baum required support to learn new tasks for the following six to 12 months and to build work capacity, complete job search activities and to maintain sustainable employment for the following 12 to 24 months. He required specialist disability employment interventions and was best suited to vocational rehabilitation. His then current capacity for work (and continuing up to 7 March 2009) was assessed as 15 to 22 hours per week in light semi-skilled
work such as clerical work. The rationale for that conclusion was that he:
“… is substantially affected by the treatment demands of his condition and his work capacity is restricted to 15-22 hours per week.”[22]
[21] T documents at 49
[22] T documents at 50
The primary decision
The record of the primary decision made on 3 April 2007 noted Mr Baum’s impairment in similar terms to those used in the JCA report as well as the impairment rating of 10. The space after “rating assigned by” was left blank but, after the words “referral type”, were the words “Job Capacity Assessor”.[23]
[23] T documents at 53
The treating doctor’s further reports
Dr Kuay gave a further treating doctor’s report dated 11 April 2007. It was in similar terms to his earlier report but gave a more detailed history of Mr Baum’s condition and its treatment over the years. Dr Kuay wrote:
“He can perform all functions except when he has the bladder obstruction when he has to relax and catheterize his bladder. At times he needs to go to hospital when he fails to empty his bladder.”[24]
[24] T documents at 59
In a letter to Mr Noonan dated 30 April 2008, Dr Kuay described Mr Baum’s condition as a “neurogenic bladder with hydronephrosis and subsequent ureto-uretestomy” and as a permanent condition.[25] Dr Kuay attached copies of various reports relating to the treatment of Mr Baum’s condition. The reports dated from 21 January 2005 to 29 January 2008 and included the results of various CT scans and a fistogram. Reference is made to various investigations carried out into Mr Baum’s condition and the history of his past operations and treatment is comprehensively recorded. In Dr Kuay’s opinion, there was unlikely to be any significant functional improvement within the following two years either with or without reasonable treatment. Dr Kuay rated Mr Baum’s impairment of his urinary tract under Table 16 of the Impairment Tables and gave it a rating of 10 impairment points.
[25] T documents at 58
In a letter to Mr Baum’s then legal representatives dated 19 May 2008, Dr Kuay noted that:
“Based on the impairment tables in the category of lower urinary tract, I can only give him a rating of 10 as he has chronic recurrent urinary obstruction needing regular catheterisation. …
To my knowledge Mr Baum has no history of hypertension and he is not under medication for that.
With regards to his diagnosis of anxiety depression, I rate the impairment as 10.”[26]
[26] Letter from Dr Kuay to Casey Cardinia Legal Service
In a letter dated 28 October 2008, Dr Kuay responded to a request to assess Mr Baum’s impairment under Table 20 of the Impairment Tables. Dr Kuay responded:
“1. During the period of 16/2/07 to 17/05/07, Mr Baum suffered from intermittent functional obstruction of his bladder which was worse when he was at work. He was particularly concerned about the cleanliness of the toilet at work as he had to perform self-catheterisation. He would experience increasing left loin pain radiating down his left groin. Ultimately he would have to attend a hospital for treatment of acute urinary retention.
From my previous correspondence to you Mr Baum’s condition is a recurrent problem since 2004 and he has been in and out of hospital with this problem so much so that he has increasing anxiety about when the next hospital attendance is going to be.
2. In my opinion, I feel that the applicant has an impairment assessable under the Table 20 of Schedule 1B-Tables for the assessment of work related impairment for disability support pension. I would give him a rating of 15.”[27]
[27] Letter from Dr Kuay to Centrelink Legal Services
Job Capacity Assessment Report dated 17 March 2008
The JCA report prepared on 17 March 2008 was prepared by Ms Sasheeka Costa, who is a registered psychologist. It described Mr Baum’s condition as “kidney disorder” and as permanent. It was a condition requiring self-catheterisation, Panadeine Forte and specialist care. The barriers faced by Mr Baum
and their impact on employment were described as:
“Barrier: Other health related barrier (H18) [28]
Impact on employment: Client needs to self-catheterise several times during the day – this is expected to limit his ability to maintain employment
Barrier:Chronic pain (H12)
Impact on employment: Significant frequent and ongoing episodes of pain affect energy levels and attention and concentration abilities.
Barrier:Limited physical abilities (H01)”
Impact on employment: Limited ability to sit and bend for prolonged periods or lift heavy objects.”[29]
[28] There was no explanation of what was meant by this reference or the others of its type.
[29] JCA report dated 17 March 2008 at 2
The JCA report assessed Mr Baum’s current work capacity as
0-7 hours per week on the basis of the:
“… ongoing impact of Hydronephrosis and megaureters ie regular self catheterisation, chronic pain, urinary retention and infections.”[30]
His work capacity was not expected to increase in the following 24 months either with or without intervention. The assessor concluded that:
“Mr Baum is assessed as having a limited baseline and future work capacity of 0-7 hours per week due to the pervasive impact of permanent medical conditions “Hydronephrosis,’ ‘Megaureters with reflux’ and ‘Self catheterisation because of difficulty with micturition.’ A referral to an employment service provider is not recommended.”[31]
[30] JCA report dated 17 March 2008 at 3
[31] JCA report dated 17 March 2008 at 4
On behalf of the Secretary, Mr Noonan wrote to Ms Nicholson on
2 April 2008 enclosing copies of Ms Costa’s JCA report, her JCA reports and reports and certificates by Drs Ord, Kuay, Aggarwal and Miller. In light of these reports and Mr Baum’s complaint of chronic pain, Mr Noonan asked Ms Nicholson for her opinion regarding Mr Baum’s impairment rating. He also asked her whether there was a possible basis for assessing his work capacity at less than 15 hours per week for the period up to March 2009.
Ms Nicholson discounted Table 20 as the appropriate table as “… the medical evidence provided does not indicate that the pain is a more severe component of the condition than the self-catheterisation and rating the two issues separately would result in double counting the impairment caused by this condition …”.
Ms Nicholson maintained that Mr Baum continues to have a work capacity for 15 to 22 hours each week. She said that there was no further medical evidence that would change the JCA report as Mr Baum’s depression and anxiety had not yet been optimally treated and there might be significant improvements within the next two years.
The effect of Mr Baum’s urinary condition upon him
Mr Baum gave evidence of the effect of his condition on him. His evidence is consistent with the report prepared by Ms Costa of his statements to her. She has neatly summarised them:
“…
Mr Baum reported that the current impact of the kidney conditions includes needing to self-catheterise in order to pass urine up to 8 times per day at present. He stated that he needs to have a sterile and hygienic environment in order to do this and that the process takes 1 hour. Mr Baum reported that he frequently has infections and experiences urinary retention, both of which often lead to him being admitted to hospital. He also described pain in the kidney area and difficulty sitting and bending for prolonged periods as well as difficulty with heavy lifting. Current treatment includes Panadeine Forte for pain and specialist (urologist) care. The conditions are considered fully diagnosed, treated and stabilised and unlikely to show significant improvement within 24 months.
The conditions lead to severe symptoms with a decreased ability/efficiency to carry out many everyday activities; symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate pain; symptoms cause significant interference with ability to perform or persist with work-related tasks.
Mr Baum reported that he has hypertension which is currently treated with medication.
Mr Baum reported that he completed Form 3 of secondary school followed by Computer and Hospitality courses. He last worked in paid employment 12+ months ago as a room attendant and indicated that he ceased work after a few weeks in the role due to the impact of his medical conditions. Mr Baum’s previous employment history consists of sales work.
…”
Mr Baum’s anxiety and depression
Dr Pauline Miller is a consultant psychiatrist who carried out a psychiatric examination of Mr Baum and prepared a report dated 26 June 2008. She reviewed his medical, psychiatric and family and developmental histories and conducted a mental status examination. She then went on to answer a series of questions that had been put to her.
Dr Miller noted that Mr Baum gives a history of suffering from depression and anxiety dating from 16 February 2007 when he was told that his claim for DSP would be rejected. Due to his deteriorating medical condition, his anxiety and depression had worsened in more recent times, in Mr Baum’s view. Dr Miller diagnosed Mr Baum as suffering from anxiety and depression but said that he had not received specific treatment for it either in the form of medication or of psychotherapy. Mr Baum had been prescribed anti-depressant medication approximately two months before 26 June 2008 when she wrote her report. To her knowledge, no treatment had been planned for his anxiety and depression other than in the form of support from his general practitioner.
Dr Miller was unaware of any documentation of Mr Baum’s anxiety and depression during the 13 week period from 16 February 2007. As it only began at the beginning of that period and there appeared to have been no treatment, there was no opportunity for it to be stabilized. Dr Miller would not consider Mr Baum’s anxiety and depression to be a permanent condition as at 16 February 2007 as it was only newly evident and had not had the benefit of any specific treatment. An episode of depression and anxiety cannot be considered permanent because it is too short a time to confidently predict its course and prognosis, she wrote. She went on to say that:
“Depression and anxiety generally takes months and sometimes years of treatment before it can be considered stabilized. Many episodes of depression and anxiety are in reaction to a stressor and may resolve within weeks or months where a particular stressor is removed.”[32]
In her opinion, the condition was not permanent between 16 February 2007 and 19 May 2009.
LEGISLATIVE BACKGROUND
[32] Psychiatric Examination and Report dated 24 June 2008 at 3
Qualification for a disability support pension
In order to qualify for payment of a DSP, Mr Baum must meet the six criteria set out in s 94 of the SS Act. There is no question that he meets four of them but, in order to set the context of the issues to be decided in this case, I will set out the first three. Section 94(1) provides that:
“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)…
(d)…
(e)…
(f)…”
Impairment Tables: their interpretation and application
The Impairment Tables referred to in s 94(1)(b) are the Tables in Schedule 1B to the SS Act[33] (Impairment Tables). Those Impairment Tables have been amended by the Social Security Amendment (2007 Measures No 2) Act 2007 (SS Amendment Act)[34] with effect from 1 January 2008.[35] For reasons I will give later,[36] the Impairment Tables in their unamended form apply in this case.
[33] SS Act, s 23(1)
[34] SS Amendment Act, s 3, Schedule 1, items 36-48
[35] SS Amendment Act, s 2(1), item 7
[36] See [.42]-[44] below
In summary, the Impairment Tables are used to assign a rating to the physical, intellectual or psychiatric impairment from which a person is found to be suffering. The rating is given in the form of either NIL or a number of points ranging from five to 40 points. The rating is determined by reference to one or other of the 22 Impairment Tables which are used to group impairments by reference to particular conditions. Those conditions include loss of cardiovascular or respiratory function, upper limb function, alcohol and drug dependence, endocrine disorders and chronic fatigue or pain.
The Introduction to the Impairment Tables explains what the rating system is intended to achieve when it states:
“1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. … The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work-related impairment …
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function rather than diagnosis based. The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is ‘which body systems have a functional impairment due to this condition?’
…
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. …
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 and 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.
…
7. A single medical condition should be assessed on all relevant Tables when that medical condition is causing a separate loss of function in more than one body system. For example, Diabetes Mellitus may need to be assessed using the endocrine (19), exercise tolerance (1), lower limb function (4), renal function (17), skin disorders (18) and visual acuity (13) tables. When using more than one Table for a single medical condition the possibility of double assessment of a single loss of function must be guarded against. For example, it is inappropriate to assess an isolated spinal condition under both the spine table (5) and the lower limb table (4) unless there is a definite neurological deficit in a lower limb or limbs.
8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Medical officers must use their clinical judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.
…
11. The scaling system for the Tables is based on points allocation with the number alongside each impairment descriptor representing the number of points to be allocated for that impairment. Ratings between Tables are not always comparable although the ratings have been allocated on the basis of the likely impact of an impairment on work ability. Where more than one impairment is present, separate scores are allotted for each and the values are added together giving a combined work-related impairment rating.
…
13. These Tables have been scaled so that where two conditions cause a common or a combined functional loss, as single rating should be assigned for both conditions and this should reflect the combined loss of function from each of the two conditions. For example, the presence of both heart disease and chronic lung disease may each cause difficulty with breathing and reduced effort tolerance. The overall loss of function is a combined or common effect with a contribution from each condition. In this case a single impairment rating is assigned based on overall reduction in effort tolerance using Table 1.”
Impairment Tables: Tables 16 and 20
Table 16 is entitled “Lower Urinary Tract” and is used for incontinence and other urethral and bladder outlet disorders. It provides:
“Rating Criteria
NILMinor stress incontinence. Bladder outlet or urethral obstruction with mild symptoms.
TENLoss of voluntary control of bladder, but satisfactory emptying achieved by triggering of reflex activity, suprapubic pressure or Valsalva manoeuvre. No incontinence aid needed.
or
Ileal or Sigmoid conduit
or
Chronic Urinary Obstruction needing regular catheterisation.
TWENTYLoss of voluntary control of bladder with dribbling incontinence needing frequent change of incontinence pads, or a collection device, eg, urodome catheter
or
Ureterosigmoidostomy.”
Table 20 can be used for miscellaneous conditions but care must be taken not to use both Table 20 and a system-specific Table for the same loss of function. In so far as they are relevant, I will set out those criteria attracting a rating of 10, 15 or 20 as they are the only ones that can possibly be relevant in this case:
“Rating Criteria
TENMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.
…
FIFTEENModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform work or persist with work-related tasks and/or attend work. Full-time work would still be possible.
…
TWENTYMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.”
Continuing inability to work
Section 94(2) provides that:
“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 a person to do any work independently of a program of support within the next 2 years.”
The word “work” means work:
“(a) that is for at least 15 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.”[37]
[37] SS Act, s 94(5)
From what date is DSP payable?
A DSP is a social security payment because it is a payment made under Chapter 2 of the SS Act.[38] Section 41(1) of the Social Security (Administration) Act 1999 (SSA Act) provides that:
“Unless another provision of the social security law provides otherwise, a social security payment becomes payable to a person on the person’s start day in relation to the social security payment.”
The person’s “start day” is the day worked out in accordance with Schedule 2 of the SSA Act.[39] The general rule is that a person’s start day is the date on which he or she makes a claim for the payment if he or she is qualified for the payment on that day.[40] If he or she is not qualified for the payment on the day of lodgement but becomes qualified for the payment within a period of 13 weeks after the day on which the claim is made, the claim is taken to have been made on the first day on which he or she becomes qualified.[41] The practical outcome of ss 41 and 42 and Schedule 2 is that a social security payment, including a DSP, will be payable to a person if that person is either qualified for it when he or she lodges the claim or becomes qualified for it within a 13 week period. Should the person become qualified at a time later than that 13 week period, it is not payable as no provision is made for a start date beyond that period. In the case of Mr Baum’s claim the 13 week period extends from 16 February 2007 when he lodged the claim to 19 May 2007 (the 13 week period).
CONSIDERATION
[38] SS Act, definition of “social security payment”, s 23(1)(e)
[39] SSA Act, s 42
[40] SSA Act, Schedule 2, cl 3(1)
[41] SSA Act, Schedule 2, cl 4(1)
What is an impairment?
The word “impairment” is not defined in the SS Act and nor is its meaning explained in the Impairment Tables.[42] The ordinary meaning of the word “impair”, from which the word “impairment” is derived, is “… to damage or weaken something, especially in terms of its quality or strength. …”.[43] Taber’s Cyclopedic Medical Dictionary[44] defines it as “Any loss or abnormality of psychological, physiological, or anatomical structure or function.” In formulating the Guides to the Evaluation of Permanent Impairment, the American Medical Association has adopted this meaning of “impairment”: “A loss, loss of use, or derangement of any body part, or organ system, or organ function.”[45]
[42] Before its repeal and substitution by the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997, s 3, Schedule 16, item 4, the Impairment Tables stated that “for the purposes of these Tables, impairment refers to any loss or abnormality of psychological and/or physiological function remaining after appropriate medical treatment and rehabilitative processes have been completed. …”: Introduction, [3].
[43] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[44] 17th ed, 1993, FA Davis and Company, Philadelphia
[45] Guides to the Evaluation of Permanent Impairment, 5th edition, 2002 at 2 and 601
These meanings have in common an element of loss or abnormality in a body part or system or an element of loss or partial loss of the function of a body part or system when regard is had to what is normal. What is normal varies but I will return to this below. When read in its context of s 94 and Schedule 1B, it would seem that the word “impairment” is intended to incorporate those elements of loss. That context is the provision of income support for those who have an impairment that has been assessed against the dual standards of the functional loss it results in and of its impact upon their doing work independently of a program of support within a certain period of time. Loss or abnormality in a body part or system or loss or partial loss of the function of a body part or system may result in a loss of function. A loss of function may have an impact upon the ability of a person to work but not necessarily so.[46] Therefore, it is important to distinguish between the task of finding whether or not a person has an impairment and, if so, the task of determining whether that impairment has an effect upon his or her ability to work.
[46] See [63] below
A decision whether a person has a physical, intellectual or psychiatric impairment must be made on the evidence or material before the Tribunal. Some of that evidence will come from the person claiming the DSP when describing the loss of function he or she experiences. Those who live with the person or who know him or her may be able to speak about their observations of the difficulties that he or she appears to experience. His or her medical practitioner or other medical professional are likely to have made observations in the course of their clinical examinations. At this stage, the focus is upon the impairment and so on the loss of function. It is not upon the cause of that impairment or on the extent or severity of the impairment.
Does Mr Baum have an impairment?
There is no suggestion that Mr Baum suffers from an intellectual or psychiatric condition. I am satisfied that, for the purposes of s 94(1)(a) of the SS Act, he suffers from a physical impairment. That physical impairment is his loss of bladder function in that he is unable to empty his bladder. He also suffers from groin pain from time to time.
Should I have regard to Mr Baum’s impairment under the Impairment Tables in their amended or unamended form?
The answer to this question is that I must have regard to the Impairment Tables in their unamended form. The general rule is that the law that is applied is that in force at the date the decision is reviewed. That general rule may be altered by legislation either explicitly or implicitly but it is a rule that also has an exception. Whether the exception applies so that the decision must be reviewed at some earlier time depends on the nature of the decision, the law under which it was made and any transitional provisions in the legislation by which the amendment to the relevant legislation was effected. The Tribunal must look to the repealing legislation in order to determine whether there are transitional provisions or whether it is intended to operate retrospectively. If there are no such provisions, there must still be a consideration of the repealed legislation to determine whether a right has accrued under that repealed legislation.[47]
[47] Re Costello and Secretary, Department of Transport (1979) 2 ALD 934 at 939-45, then Senior Member Hall and CCH Thompson and AH Marsh, Members, s 8 of the Acts Interpretation Act 1901 and see more recently Esber v Commonwealth of Australia and Another (1992) 174 CLR 430;
The amendments to the Impairment Tables were effected by the SS Amendment Act but it does not contain any transitional provisions.[48] The decision under review determines whether Mr Baum was entitled to a payment of DSP under the SS Act. If he was entitled to it in the sense that he was qualified for it and it was payable to him, DSP could be paid with effect from the date of his claim or from any later date within a 13 week period from the date of his claim. It could not be paid from any date outside that 13 week period. If he was entitled to be paid DSP during that time and it was payable to him, he had a right to be paid and to receive that payment. There is nothing in the amending legislation that suggests that the amendments to the Impairment Tables were intended to affect that right in any way. Therefore, I have concluded that the Impairment Tables should be applied in their unamended form.
[48] See [30] above
In case Mr Baum is concerned that he would have had a better outcome if he had been assessed under the amended Impairment Tables, I want to make it clear that he would not have. The amendments changed the references from “medical officer” to “assessor”. They did not change any of the ratings or the criteria for each of those ratings.
What is the evidence to which I should have regard in reviewing the decision?
Some of the evidence relates to Mr Baum’s condition, impairment and work capacity in the 13 week period following the date on which he lodged his claim for DSP but some relates to more recent times. Should I have regard to all of the evidence or to only some of it? This was a question that was considered by the High Court in a different context in Shi v Migration Agents’ Registration Authority.[49] The Migration Agents’ Registration Authority (MARA) had cancelled Mr Shi’s registration as a migration agent under the Migration Act 1968 on the basis that he was not a person of integrity or a fit and proper person to give migration assistance. MARA made that decision in July 2003. In September 2005, the Tribunal set MARA’s decision aside and substituted another. One of the questions to be considered by the High Court was whether the Tribunal was limited to the facts and circumstances as they existed at the time MARA made its decision or whether it could look to them as they existed when it made its own decision.
[49] (2008) 248 ALR 390, Kirby, Hayne, Heydon and Crennan JJ, Kiefel J dissenting on a second issue but not on the Tribunal’s ability to rely on fresh evidence.
The majority had regard to s 43(1) of the AAT Act giving the Tribunal the powers and discretions of the decision-maker when reviewing the decision and to the description by Davies J of the Tribunal’s role being to determine whether “… the decision was the correct or preferable one on the material before …”[50] the Tribunal. As Kirby J said:
“… ultimately, it was for the tribunal to reach its own decision upon the relevant material including any new, fresh, additional or different material that had been received by the tribunal as relevant to its decision. In effect, this was no more than a consequence of the tribunal’s obligation to conduct a true merits review.”[51]
It was also, in his Honours’ view, a consequence of the general obligation placed upon administrative decision-makers to have regard to the best and most current information available.[52]
[50] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577; 2 ALD 60 at 589; 68 cited with approval in Shi v Migration Agents’ Registration Authority (2008) 248 ALR 390 at 398 per Kirby J.
[51] (2008) 248 ALR 390 at 399
[52] (2008) 248 ALR 390 at 400
Kirby J also had regard to the nature of the decision as did the other members of the High Court. He emphasised the need to identify the precise nature and incidents of the decision that is the subject of the review and continued:
“ Sometimes, it may be inherent in the nature of a particular decision that review of that decision is confined to identified past events. If, for example, under federal legislation, a pension is payable at fortnightly rests, by reference to particular qualifications that may themselves alter over time, a ‘review’ of an administrative ‘decision’ to grant or refuse such a pension, by reference to statutory qualifications, may necessarily be limited to the facts at the particular time of the decision.”[53]
[53] (2008) 248 ALR 390 at 400
Applying these principles to the decision I am required to review, it seems to me that the inherent nature of the decision and the statutory context in which it is made confine me to evidence that relates to Mr Baum’s condition, impairment and work capacity during that 13 week period. That does not mean that all of the evidence in the form of reports, assessments or records had to be generated in that period. What it means is that they must relate to that period.
The judgment of the Full Court of the Federal Court in TheHospital BenefitFund of Western Australia Inc v Minister for Health, Housing and Community Services[54] illustrates the way in which evidence of matters happening after a relevant period may relate to that period. Under the National Health Act 1953, the Minister may give directions to a registered health insurance organisation with respect to the scope and level of benefits available to contributors. Once registered, the organisation must notify the Secretary of certain changes it makes to its constitution, articles of association or rules. If the Minister is of the opinion that a change may, among other matters, impose an unreasonable or inequitable condition affecting the rights of any contributors, that Minister may declare that the change has not come into operation. Wilcox, Burchett and French JJ explained how the particular decision limited the evidence to which the Tribunal could have regard:
“In the present case, the question before the primary decision-maker (the delegate of the Minister) was whether, at the time it took effect, the change imposed an unreasonable or inequitable condition; not whether, in the light of developments over the ensuring three years until the Tribunal hearing, the effect of the rule change was to occasion a state of unreasonableness and inequity to contributors. Of course, in considering the position as at the date of the rule change, the Tribunal is not confined to the historical position. It is entitled to receive evidence as to prospective developments in relation to IVF, as they appear at the date of the rule change. The reason is that, in evaluating the effect of the change as at that date, account may be taken of predictable developments. But the evidence must be related back to the date of the change.”[55]
[54] (1992) 39 FCR 225; 28 ALD 50; 111 ALR 1
[55] (1992) 39 FCR 225; 28 ALD 50; 111 ALR 1 at 234; 59; 11
Another example is found inSurinakova v Minister for Immigration and Ethnic Affairs,[56] in which Hill J said:
“There may be occasions where evidence of events subsequent to the decision may have relevance, not in the sense that those events are matters that should have been taken into account at the time the decision was made, but rather as showing that the probability of the subsequent event happening is one that could be taken into consideration.”[57]
[56] (1991) 33 FCR 87; 26 ALD 203
[57] (1991) 33 FCR 87; 26 ALD 203 at 94; 205
How do I determine a person’s impairment under the Impairment Tables?
The Introduction to the Impairment Tables states that those tables are intended to assess the severity of functional limitations for work related tasks against an “empirically agreed set of criteria”. What does that mean? The word “empirical” means that the matters described in that way are “based on experiment, observation or experience, rather than on theory”.[58] Therefore, the number of points allocated as the rating for each impairment described in the Impairment Tables is based on experiment, observation or experience. Each rating is intended to reflect the impact that a particular impairment is likely to have on a person’s ability to work regardless of that person’s age or personal circumstances. That is so because severity is assessed “… by reference to an individual’s efficiency in performing a set of defined functions in comparison with a fully able person.”[59]
[58] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
[59] SS Act, Schedule 1B, Introduction, [3]
Taking Table 4 as an example, based on experiment, observation or experience, Parliament has decided that a person who has an impairment to one of both lower limbs has a loss of function or functional limitations that should be rated as NIL if able to walk without difficulty on a variety of different terrains and at varying speeds for distances of more than 500 metres. If that person is unable to walk or stand but is independently mobile using a self-propelled wheelchair, Parliament has assigned a rating of 20 points. Should that same person be mobile only in a motorised wheelchair or in a wheelchair with an attendant, the loss of function or functional limitations are rated as 40 points.
The fact that the ratings assigned in each of the 22 Impairment Tables have been empirically formulated without regard to the particular circumstances of the person claiming DSP in mind, does not mean that the particular circumstances of the individual claimant are not relevant. They are relevant because determining the function that the individual has lost is an essential step in the process of assigning a rating under the Impairment Tables.
Although I have some difficulty in reconciling the language used in different clauses of the Introduction with each other and with s 94(1)(b),[60] it seems to me that, once it has been decided that a person has a physical, intellectual or
[60] As an example, I refer to [6] of the Introduction to the Impairment Tables in Schedule 1B. Its stated intention is to direct the matters that must be taken into account in deciding whether a condition is “fully diagnosed, treated and stabilised”. The factors are all concerned with treatment, rehabilitation and prognosis. While it may be that lack of response to treatment may alter a diagnosis, [6] appears to be drafted on the assumption that the condition has been diagnosed and the treatment clear. It is the possible outcome of that treatment that is relevant but not its use in altering a diagnosis.
psychiatric impairment within the meaning of s 94(1)(a), the steps I must take are:
1.determine whether there has been a comprehensive history taken from, and an examination of, the person;[61]
[61] SS Act, Schedule 1B, Introduction, [4]
2.determine a “working diagnosis”[62] based on best available evidence;
[62] SS Act, Schedule 1B, Introduction, [4]
(a)a “diagnosis” is “the process whereby a disease or disorder is provisionally identified on the basis of its symptoms and the patient’s medical history”;[63]
[63] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
3.decide whether the “condition” (and so the “ailment or disorder” or disease, injury or disorder from which the person suffers[64]):
[64] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
(1)is a “fully documented, diagnosed condition”;[65] and
[65] SS Act, Schedule 1B, Introduction, [4] and see also [6] discussed in [….] below
(2)“has been investigated, treated and stabilised”[66]
[66] SS Act, Schedule 1B, Introduction, [4] and see also [6] discussed in [….] below
(a)if the condition is uncertain or if the impairment resulting from that condition is unclear, require further investigations to be undertaken;[67] and
[67] SS Act, Schedule 1B, Introduction, [4]
(b)determine the answers to questions 3(1) and (2) having regard to [5] and [6] of the Introduction;
4.in relation to each condition that is permanent and is a fully documented, diagnosed condition that has been investigated, treated and stabilised:
(1)decide whether it is a permanent condition i.e. whether in light of the available evidence it more likely than not to persist for the foreseeable future given that the “foreseeable future” is taken to be a period lasting for more than two years;[68] and
[68] SS Act, Schedule 1B, Introduction, [5]
5.in relation to each condition that is permanent and is a fully documented, diagnosed condition that has been investigated, treated and stabilised:
(1)ascertain the loss of function that each condition causes to the person in each separate body part or system;
(a)each loss of function must be capable of separate identification in order to avoid the possibility of double assessment of a single loss of function;[69]
[69] SS Act, Schedule 1B, Introduction, [7]
(b)one condition may lead to more than one loss of function;[70]
[70] SS Act, Schedule 1B, Introduction, [12]
(2)compare each loss of function with the loss of functions described in the relevant Impairment Tables in Schedule 1B and assign the appropriate rating to each loss;
(a)use the Table specific to the loss of function;[71]
(b)do not assign a rating to a single loss of function under more than one Table;[72]
(c)a loss of function may be attributable to more than one condition but that loss of function may only be counted once;[73] and
(d)pain or fatigue should be assessed in terms of the loss of function causing that pain or fatigue but it can be assessed under Table 20 if to assess the loss of function under the Table relevant to it would be to underestimate the loss of function due to chronic entrenched pain;[74] and
5.where there is more than one loss of function, add the separate ratings together to obtain a combined work-related impairment rating.
[71] SS Act, Schedule 1B, Introduction, [9]
[72] SS Act, Schedule 1B, Introduction, [7]
[73] SS Act, Schedule 1B, Introduction, [13]
[74] SS Act, Schedule 1B, Introduction, [8]
Who assesses impairment under the Impairment Tables?
The identity of the person who assesses impairment under the Impairment Tables at least in the first instance, is a little unclear. Mr Noonan drew my attention to the four occasions on which the Introduction to the Impairment Tables refers to the “Medical Officer”:
(1)“The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. One of the skills which needs to be developed in order to assess impairment in this context is the ability to select the appropriate tables. The question which must be asked in each and every case is ‘which body systems have a functional impairment due to this condition?’”[75]
(2)“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 medical officer 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.”[76]
(3)“… where the medical officer is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.”[77]
(4)Ratings cannot “… be assigned in excess of the maximum rating specified by each Table (eg. if the maximum rating for a Table is 30, the medical officer cannot assign a greater rating than this figure).”[78]
[75] SS Act, Schedule 1B, Introduction, [2]
[76] SS Act, Schedule 1B, Introduction, [6]
[77] SS Act, Schedule 1B, Introduction, [8]
[78] SS Act, Schedule 1B, Introduction, [10]
In addition to these references, I note that the Introduction to the Impairment Tables makes it clear that the Tables are applied “following a medical assessment”. The outcome of their application is called a “work-related impairment”.
I also note that the Impairment Tables 1 and 2 refer to a medical officer. Table 1 is headed “loss of cardiovascular and/or respiratory function: exercise tolerance”. It begins with an explanation that cardiovascular and respiratory function is measured by reference to exercise tolerance. A rating is obtained from Table 1 by determining the lowest MET[79] band which causes restriction in activity from a cardiac or respiratory condition. Table 1 then continues:
“The clinical judgement of medical officers based on history and examination is to be used but in cases where a reliable history is difficult to obtain despite discussions with the treating doctor or the history of exercise tolerance is inconsistent with clinical findings on examination, the results of an Exercise ECG or Respiratory Function Test may be obtained.”[80]
[79] “1 MET is defined as average oxygen consumption at rest which is 3.5mL O2/kg/min.”: SS Act, Schedule 1B, Table 1
[80] SS Act, Schedule 1B, Table 1
Table 2 is headed “loss of respiratory function: physiological measurements” and opens with the statement:
“Respiratory function is measured by reference to exercise tolerance in the majority of cases and so Table 1 is used. Spirometry can be used where the medical officer feels it is more appropriate for example, where a history of exercise tolerance is inconsistent with clinical findings on examination. A rating is then obtained using Table 2.”[81]
[81] SS Act, Schedule 1B, Table 2
Neither the Introduction nor Impairment Tables 1 or 2 define a “Medical Officer”. On behalf of the Secretary, Mr Noonan submitted that:
1.the assignment of an impairment rating should be undertaken by a medical officer;
2.the medical officer who assigns need not be the medical officer who examines the person claiming DSP but an examination must precede an assignment;
(a)the medical officer assigning an impairment rating decides whether “other input is required to assign an appropriate rating(s).”[82]
3.“The medical officer therefore can be considered the job capacity assessor who considers the Impairment Tables and determines the impairment rating to be given on the basis of the medical evidence.”[83]
4.“… specialist health professionals who conduct JCAs [Job Capacity Assessments], such as occupational therapists, psychologists or physiotherapists, may be regarded as ‘medical officers’ if they have appropriate qualifications and/or training and/or experience in the relevant area relating to the person’s impairments. …[T]he job capacity assessor is appropriately qualified to assign an impairment rating to the applicant’s condition.”[84]
[82] Secretary’s Statement of Facts and Contentions, [30]
[83] Secretary’s Statement of Facts and Contentions, [30]
[84] Secretary’s Statement of Facts and Contentions, [31]
At the foundation of this submission is an assumption that the assessment of impairment in relation to work under the Impairment Tables is the same task as the assessment of capacity to work. They are not the same. At a superficial level, this is recognised in s 94 by their being dealt with in two separate paragraphs: ss 94(1)(a) and 94(1)(b). At a substantive level, it is recognised by the very different function that each assessment is designed to achieve. As I have explained, the Impairment Tables are designed to assess the severity of a person’s functional limitations for work related tasks by comparing that person’s efficiency with the efficiency of a fully able person when performing a set of defined functions and without regard to age or personal circumstances. As is clear from [1] of the Introduction to which I have already referred, they must follow a medical assessment.
That is not to say that the Impairment Tables make no reference to work capacity at all for they do. Four of the 22 Impairment Tables do and Table 6 refers to the “ability to work”.[85] Table 7, for example, deals with alcohol and drug dependence and contains two references to work capacity:
“NIL A pattern of alcohol or drug use with no or only minor effects on daily functioning or work capacity.
…
THIRTYDependence on alcohol or other drugs, well entrenched over many years, with minimal residual work capacity. Irreversible end organ damage may be present.”
Table 20 deals with a miscellany of conditions including malignancy, hypertension and chronic fatigue syndrome. I have set it out above and note that the ratings of 30 and 40 points contain a reference to work capacity. Table 22, dealing with gynaecological conditions, assigns a NIL rating to disorders in which there are “Minor symptoms which are easily tolerated. Minimal effect on daily functioning or work capacity.”
[85] SS Act, Schedule 1B, Table 6, Ratings TEN and TWENTY
The references in Impairment Tables 7, 20 and 22 require some assessment of work capacity but only at the extremities, as it were, of job capacity. The person making the assessment is required to consider only whether there is a minimal effect on work capacity or a “minimal residual work capacity” at one end or, at the other, whether there is “no residual work capacity”. There is no need for any fine judgments of the sort called for by s 94(2)(a). Although Table 17 refers to work capacity, it calls for no thought at all to be given to the person’s work capacity. It is concerned with renal function. Its reference to work capacity appears in an introductory explanation. Consistent with the concepts set out in the Introduction to the Impairment Tables, Table 17 explains that renal disease results in loss of function and that loss of function has an impact on work capacity. Therefore, an:
“… assessment of renal impairment as it impacts on work capacity is based upon the loss of function resulting from these systemic effects. For example, for persistent generalised symptoms such as fatigue use Table 20, refractory anaemia is assessed using Table 20, persistent gastrointestinal symptoms (eg. vomiting) despite optimal treatment are assessed using Table 11 …”[86]
[86] SS Act, Schedule 1B, Table 17
Whether that person has a continuing inability to work is a very different question. It is a question that does call for an assessment of work capacity. The question asked in s 94(1)(b), when read with s 94(2), has several parts. The first part of the question that must be asked is whether 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. The answer to that question is not found by referring to the Impairment Tables. A person may have an impairment rating of, for example, 60 points based on an inability to use a non-dominant upper limb at all[87] and ankylosis in an unfavourable position.[88] That is a rating significantly above the 20 points that must be met under s 94(1)(a) but does not answer the question posed by ss 94(1)(b) and 94(2)(a). It does not answer the question because regard must be had to the impact that the loss of function represented by the impairment has on the particular person suffering from that loss. Such a person has other functions that remain unimpaired. As a simple illustration, a person’s paraplegia does not necessarily lead to the conclusion that the person has a continuing inability to work for, as life changing as it is, paraplegia is not necessarily “… of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years” as required by s 94(2)(a). Whether it is sufficient is something that is answered by reference to criteria that take account of the individual’s loss of function but only in the context of wider considerations including those particular to the individual. Unlike s 94(1)(a), the question posed is not answered by reference to an empirically determined set of criteria.
[87] 20 points, SS Act, Schedule 1B, Table 3
[88] 40 points, SS Act. Schedule 1B, Table 5.2
It follows that there can be no question that a job capacity assessor has a role in answering the question posed by s 94(2)(a). His or her evidence will be relevant in knowing what work exists, what it requires and whether the particular person’s loss of function will prevent him or her doing that work independently of a program of support. It will also be relevant in answering the other parts of the question raised in s 94(2)(b) and touching on the impact of training activities on the person’s ability to do any work independently of a program of support.
The assessment required by s 94(1)(a) and by the Impairment Tables calls for a different set of skills from that carried out by a job capacity assessor. It calls for an assignment of a rating only after a comprehensive history and examination of the person. From a practical point of view, it is difficult to conceive that a person will be happy to permit an examination, whether a physical or psychiatric examination, by someone other than a medical practitioner.
The Impairment Tables themselves are written on an assumption that a medical officer will carry out the examination. Take Table 1, for example. It states that:
“The clinical judgement of medical officers based on history and examination is to be used but in cases where a reliable history is difficult to obtain despite discussions with the treating doctor or the history of exercise tolerance is inconsistent with clinical findings on examination, the results of an Exercise ECG or Respiratory Function Test may be obtained.”[89]
The medical officer may refer to the treating doctor for the person’s history but it is clear that the medical officer is required to conduct an examination. The medical officer will be comparing his or her clinical findings on examination with the findings of, and history obtained by, the treating doctor.
[89] SS Act, Schedule 1B, Table 1
Table 6 provides another example. It opens with a statement that:
“It is important to record a detailed psychiatric history, a mental state examination, and to distinguish between temporary and permanent psychiatric disorders. People with established psychiatric disorders (eg Bipolar Disorders) may be highly variable in their clinical presentation and this factor must be taken into account in the assessment. The assessment of psychiatric impairment may benefit from investigating; reports from mental health case managers, compliance with and the effects of medication, support systems that people have in place, the degree of insight present and the presence of psychotic illness. …”[90]
[90] SS Act, Schedule 1B, Table 6
This passage from Table 6 also illustrates the fact that the person making the assessment must be able to call upon his or her own medical knowledge in order to make the assessment even if he or she also chooses to make further investigations. The Table calls upon the person making the assessment to distinguish between temporary and permanent psychiatric impairment. That is not something that can be done by a person without medical training. Such a person can consider medical evidence and to come to a conclusion. The Tribunal is often called upon to do that and to do so on the balance of probabilities but the contexts are different.[91]
[91] See [80] below
As a final example, I will refer again to the Introduction. The medical officer is told to “evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment”.[92] The medical officer is not directed to make a finding on the evidence or to decide as an assessor. That would be the way in which the Tribunal would have to approach the task of making an assessment under the Impairment Tables. Instead, the medical officer is told to “evaluate” just as he or she is told to “indicate” why particular treatment is reasonable and to “note” the reasons why the person has chosen not to have the treatment. Again, these directions seem clearly to be directed to a person who has medical knowledge and who is asked to give his or her own opinion. They do not appear to be directed at a person untrained in medical matters who simply reaches a conclusion after considering the medical opinions of others.[93]
[92] SS Act, Schedule 1B, Table 6
[93] The medical officer’s opinion is relevant in deciding whether the condition is a “fully documented, diagnosed condition which has been investigated, treated and stabilized”.
I note that my conclusion in this regard is consistent with the view expressed by the Full Court in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen.[94] The issue was whether there was a compelling reason for the applicant for DSP not to undertake further treatment for his condition. Gyles, Stone and Buchanan JJ said:
“ In this case it is quite clear from the context provided by clause 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.”[95]
[94] [2008] FCAFC 48 per Gyles, Stone and Buchanan JJ
[95] [2008] FCAFC 48 at [38]
The way the Tribunal reviews a decision
The starting point of the Tribunal’s power to review a decision is
s 25(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act). That section provides that:
“An enactment … [provides] that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.”[96]
[96] Section 25(4) of the AAT Act complements s 25(1) by giving the Tribunal power to review a decision in respect of which such an application is made.
In this case, the enactment that provides for review of a decision such as a decision to grant DSP to Mr Baum is s 179 of the SSA Act. It provides that:
“If:
(a)a decision has been reviewed by the SSAT; and
(b)the decision has been affirmed, varied or set aside by the SSAT;
application may be made to the AAT for review of the decision of the SSAT.”[97]
On its face, s 179(1) requires the Tribunal to review the decision to affirm, vary or set aside a decision rather than the operative decision. The general law ensures that the decision that the Tribunal actually reviews is the operative decision and so the decision that actually affects a person’s rights and entitlements.[98] Section 179(2) of the SSA Act achieves the same result legislatively.
[97] SSA Act, 179(1)
[98] See Re Gee and Director-General of Social Services (1981) 3 ALD 132; 58 FLR 347 at 141; 357 (Davies J, President, and Messrs Cusack and Prowse, Members) approved by the Full Court of the Federal Court in Yolbir v Administrative Appeals Tribunal and Anor (1994) 48 FCR 246; 33 ALD 8; 19 AAR 15 at 248-249; 10; 17-18 (Davies, Burchett and O’Connor JJ)
In reviewing the decision, the Tribunal:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing:
(a)affirming the decision under review;
(b)varying the decision under review; or
(c)setting aside the decision under review and:
(i)making a decision in substitution for the decision so set aside; or
(ii)remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal.”[99]
[99] Administrative Appeals Tribunal Act 1975, s 43(1)
In exercising those powers and discretions, the Tribunal must arrive at what has been described as the “correct or preferable decision”. As the majority of the High Court said in Esber v Commonwealth of Australia and Another:[100]
“The Tribunal was required to stand in the shoes of the decision-maker (the delegate) and arrive at its own decision (16).[[101]] In Drake, Bowen CJ and Deane J said of the Tribunal (16):[[102]]
‘The question for the determination of the Tribunal is not whether the decision which the decision maker made was the correct or preferable one on the material before him. The question for the determination of the Tribunal is whether that decision was the correct or preferable one on the material before the Tribunal.’”[103]
[100] (1992) 174 CLR 430; 106 ALR 577
[101] Drake v Minister for Immigration (1979) 24 ALR 577 at 589
[102] Drake v Minister for Immigration (1979) 24 ALR 577 at 589
[103] (1992) 174 CLR 430; 106 ALR 577 at 440; 583 per Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting
The task is often described as merits review. It requires the Tribunal to re-examine or go over the decision again, and so “review”,[104] the decision. Therefore, the Tribunal must look not only to whether the law has been correctly applied but to whether the decision is correct in light of that law and on the basis of all of the relevant material. Some times, only one decision is a correct decision. At others, a range of decisions would be correct and not merely one. That will come about if the decision-maker and so the Tribunal may exercise a discretion. It must then select the decision that is preferable in light of the relevant principles to be gleaned from the legislative framework. In other words, a decision that is a “preferable” decision must also be a “correct” decision at law and on the evidence and any discretion must have been correctly exercised.
[104] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Whenever it undertakes a merits review, the Tribunal goes through a number of steps. They may be summarised as:
1.identify the decision of which review is sought;
2.identify the law, which must be an enactment,[105] under which the decision was made;
[105] AAT Act, s 3(1)
3.identify the issues that the enactment requires the decision-maker, and so the Tribunal, to decide in order to reach a decision:
(1)in some circumstances, these take the form of criteria that must be met before a decision favourable to an applicant may be made;
4.in relation to each issue, determine the facts that must be decided in relation to that issue:
(1)there may only be one issue;
(2)some of the issues may require consideration of the general law as well as determination of the facts:
e.g.determination of a person’s assets under the SS Act may require an examination of assets held on trust and so a consideration of the law of trusts;
5.in determining the facts and so making findings of fact, consider all the relevant evidence and decide what happened or the fact to be determined on the basis of the appropriate standard of proof:
(1)usually, that standard of proof is proof on the balance of probabilities although a particular enactment may prescribe a different standard;
6.come to a conclusion or conclusions about the issue or issues;
7.examine the conclusions to the issues to determine whether, on the law set out in the enactment, those conclusions mean that only one decision can be made or more than one:
(1)if, for example, the enactment requires four issues to be decided in a particular way before a decision favourable to an applicant can be made, the decision must be unfavourable if only three are decided in that way;
(2)if the requirements of the enactment are satisfied, decide whether that leads to only one possible decision or more than one possible decision and identify the decisions;
(3)if only one decision can be made, make the decision as required by s 43(1) of the AAT Act then:
(a)if the Tribunal would have made the same decision, even if on a different basis, affirm the decision;
(b)if it would have varied an aspect of the decision, decide that the decision is varied and describe the variation;
(c)if it would have made a different decision, set aside the decision and substitute that decision; or
(d)if it would not have made the decision that was made but, for some reason, cannot make that decision itself, remit the decision to the decision-maker with directions or recommendations as to the way it is to be made;
(4)if more than one decision can be made:
(a)work out whether there are any guidelines, express or implicit, in the enactment to guide the selection of the preferable decision; and
(i)if the Tribunal would have made the same decision, even if on a different basis, affirm the decision;
(ii)if it would have varied an aspect of the decision, decide that the decision is varied and describe the variation;
(iii)if it would have made a different decision, set aside the decision and substitute that decision; or
(iv)if it would not have made the decision that was made but, for some reason, cannot make that decision itself, remit the decision to the decision-maker with directions or recommendations as to the way it is to be made.
Can the Tribunal review the assessment of Mr Baum’s impairment under the Impairment Tables?
In this case, I am reviewing an operative decision to refuse Mr Baum a DSP on the basis that he is not qualified to receive it under s 94(1).[106] In order for Mr Baum to be entitled to the DSP, he must satisfy each of the six criteria set out in s 94(1). In the case of the fifth, which is set out in s 94(1)(e), he may satisfy it by meeting one of three sub-criteria it sets out.
[106] In different circumstances, the decision might have been made under ss 94A or 95. A decision to refuse DSP on the basis that it is not payable to him is a different decision made under s 98 of the SS Act.
Only one of the criteria is in issue in this case. That is the criterion set out in s 94(1)(b). It requires his impairment to be “of 20 points or more under the Impairment Tables’. That takes me to the fifth step; that of considering all relevant evidence and deciding the facts raised by that issue on the balance of probabilities. Before I go too far on that course, I have to identify with care the fact that I am required to determine. Is it the fact that Mr Baum’s impairment has been assessed as being “of 20 points or more under the Impairment Tables” by the assessor under the Impairment Tables or am I entitled and, indeed, required, to carry out the assessment under the Impairment Tables to come to my own view of their application?
In view of my analysis of the Impairment Tables, it seems to me that Parliament has given the role of assessing impairment under the Impairment Tables to the medical officer. Section 94(1)(b) does not state the criteria that must be met as being the Secretary’s satisfaction that a person has an impairment of 20 points or more under the Impairment Tables. If it had, there would have been no question that the Tribunal, exercising the powers and discretions of the Secretary, would have had power to review the decision. As it is, s 94(1)(b) states the criteria in the form of a statement that the person’s impairment is 20 points or more under the Impairment Tables. It then gives the task of assessment to a person other than the Secretary. In my view, it gives it to a medical officer. The skills that an assessment requires are those of a medical officer. All that the Secretary must be satisfied of is that the person has the minimum number of points as assessed under the Impairment Tables. The Secretary is not given the task of assessing them. Therefore, in view of the fact that the Tribunal has the powers and discretions of the Secretary, its task is similarly limited. It cannot embark on its own assessment under the Impairment Tables.
The Safety, Rehabilitation and Compensation Act 1988 (SRC Act) and the Veterans’ Entitlements Act 1986 (VE Act) also provide for the use of a Guide in assessing either permanent impairment or of incapacity. The Tribunal is able to review the assessments under both those Acts but this follows from the fact that, unlike its approach in the SS Act, Parliament has provided that the Commission, and not an assessor, has the task of making the assessment. The SRC Act, for example, provides for compensation to be paid for injuries resulting in permanent impairment. Section 24(5) requires Comcare to “… determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.”[107] When the Tribunal is required to review an assessment, s 28(4) specifically requires the Tribunal to carry out that review under the provisions of the approved Guide. This mirrors the approach taken in the VE Act in relation to assessing the degree of incapacity of a veteran from war-caused injury or a war-caused disease. Under s 21A(1) of the VE Act, the Repatriation Commission (Commission) shall determine the degree of incapacity. The Commission may prepare a document known as the “Guide to the Assessment of Rates of Veterans’ Pensions” setting out the criteria by reference to which the extent of the veterans’ incapacity is determined.[108] When the Tribunal is required to review an assessment, s 29(4) of the VE Act specifically requires the Tribunal to carry out that review under the provisions of the approved Guide.
[107] The “approved Guide” is the document prepared by Comcare in accordance with s 28 of the SRC Act, entitled “Guide to the Assessment of the Degree of Permanent Impairment” and approved by the Minister from time to time: SRC Act, s 4(1).
[108] VE Act, s 29(1)(a)
Does the Tribunal have any role in relation to the assessment under the Impairment Tables?
Although it seems to me that neither the Secretary nor the Tribunal may conduct an assessment under the Impairment Tables, both must be satisfied that the assessment has been carried out as required by the Impairment Tables. This means that it is open to them to determine whether the assessment has only been carried out in relation to a condition that is a “fully documented, diagnosed condition which has been investigated, treated and stabilised”.[109] It is also open to them to determine whether the assessment has had regard to the other instructions in the Introduction. If it has not, it is not open to them to conduct their own assessment. What they must do is refer the matter for further assessment.
[109] SS Act, Schedule 1B, Introduction, [4]-[6]
There may be occasions on which different medical officers have given different assessments. The Secretary and the Tribunal will then need to decide the weight to be given to each in view of all of the evidence. They may not embark on their own assessment.
Does the urinary tract impairment from which Mr Baum suffers arise from a permanent condition that has been documented, diagnosed, treated and stabilised?
Dr Kuay was Mr Baum’s treating doctor when he lodged his claim for DSP and continues in that role. Dr Ord was his surgeon at the time. Their diagnoses were expressed in different terms but to the same effect. That of Dr Ord was dysfunctional voiding. It is expressed more in terms of the impairment than by reference to the condition that causes dysfunctional voiding. Both have investigated the causes of Mr Baum’s condition.
Dr Kuay’s diagnosis was expressed in terms of the condition from which Mr Baum suffers but the dysfunction that the condition causes is consistent with that described by Dr Ord. It was a diagnosis of neurogenic bladder with hydronephrosis and, in so far as I can read it, ureto-ureterostomy. I suspect that his reference is also a reference to “ureteroenterostomy”, which is the “Formation of a passage between a ureter and the intestine.”[110] Whether I am correct in that,
Dr Kuay’s diagnosis gives more information about the condition as “neurogenic” means that it is due to or results from nervous impulses[111] and “hydronephrosis” means:
“… Collection of urine in the renal pelvis due to obstructed outflow, forming a cyst by production of distention and atrophy of organ. …”[112]
Dr Kuay’s later reports gave consistent diagnoses.
[110] Taber’s Cyclopedic Medical Dictionary, 17th ed, 1993, FA Davis and Company, Philadelphia
[111] Taber’s Cyclopedic Medical Dictionary, 17th ed, 1993, FA Davis and Company, Philadelphia
[112] Taber’s Cyclopedic Medical Dictionary, 17th ed, 1993, FA Davis and Company, Philadelphia
On the basis of these reports, I am satisfied that Mr Baum suffers from a condition of neurogenic bladder with hydronephrosis and ureteroenterostomy. It is a condition that has not only been diagnosed but also treated and stabilised “to the greatest extent possible”, and so “fully”[113], as well as documented. It is clear from
Kuay’s earlier report relating to the 13 week period in question that Mr Baum’s condition had been treated and that, apart from ongoing self-catheterisation, no further treatment was required then or in the future. None was planned. His condition will remain unchanged for the next two years and beyond. In light of that, I am satisfied that it is a permanent condition. I find that, in the 13 week period after Mr Baum lodged his claim for DSP, his condition was fully stabilised in that it was unlikely that, either with or without reasonable treatment, there would be any significant functional improvement within the following two years. As Dr Kuay’s more recent report bears out, this has proved to be the case in the sense that Mr Baum’s condition has not improved.
Dr
Has the assessment of Mr Baum’s urinary tract impairment complied with the instructions in the Introduction to the Impairment Tables?
[113] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Dr Kuay has assessed Mr Baum’s impairment under both Tables 16 and 20. He has made the assessment in respect of a fully documented, diagnosed condition which has been investigated, treated and stabilised and in respect of which he suffers an associated loss of function.
He has assessed the loss of function from which Mr Baum suffers under one Table only. I accept that Mr Baum also suffers pain but, having read the medical evidence, I am satisfied that his pain is caused by his medical condition being a condition of neurogenic bladder with hydronephrosis and ureteroenterostomy. That condition also causes him to suffer from chronic urinary obstruction needing regular catheterisation. According to [8] of the Introduction of the Impairment Tables, that means that the impairment should be assessed under Table 16 and not under Table 20. This Dr Kuay has done and he has given an assessment of 10 points. I am satisfied that, in doing so, Dr Kuay has complied with the instructions in the Introduction.
If I am incorrect and the Tribunal can make its own assessment, what is the appropriate rating to assign to the functional impairment resulting from Mr Baum’s urinary tract condition?
For the reasons that I have given, I do not consider that I can review
’s assessment and make my own assessment. Dr Kuay’s assessment is that the rating under Table 16 is 10 points.
Dr Kuay
If I am wrong in that and I can make my own assessment, I would reach the same conclusion in light of the evidence I have been given. There is no evidence that would support my finding that Mr Baum has met the criteria for a rating of 20 points. In particular, there is no evidence that he has a loss of voluntary control of his bladder with dribbling incontinence needing frequent change of incontinence pads or a collection device such as a urodome catheter or that he has a ureterosigmoidostomy. There is evidence, and I am satisfied, that Mr Baum has chronic urinary obstruction needing regular catheterisation but that attracts a rating of only 10 points.
Mr Baum shaded words so that I should read the third criterion under rating 10 in Table 16 with the shaded part of the first criterion under rating 20 in order to attract a rating of 20 points:
RatingCriteria
TEN…
*Chronic Urinary Obstruction needing regular catheterisation.
TWENTY
*Loss of voluntary control of bladder with dribbling incontinence needing frequent change of incontinence pads, or a collection device, eg, urodome cathether.
…”
This would require me to run the criteria for two ratings together and the instructions in the Introduction do not permit me to do that. He must be assessed under one or the other. That is so even if neither is a perfect fit for his impairment.
At my request, Mr Noonan asked Dr Kuay to assess Mr Baum’s functional impairment under Table 20. I did so in case he should assign a rating higher than that which he assigned under Table 16. If he did, it might be possible to infer that he, as the medical officer, was of the opinion that the Impairment Tables underestimated the level of disability because of the presence of chronic entrenched pain. His assessment under Table 20 could then be preferred in accordance with the instructions in the Introduction to the Impairment Tables.
I also asked for the further assessment should I make an assessment under the Impairment Tables to allow for any finding on appeal, if there be one, that my approach to the review of assessments is incorrect. If I can make the assessment for the purpose of review, I would need to decide if Mr Baum’s level of disability would be underestimated if I were to have regard to Table 16 alone. To have regard to Table 16 is to ignore any functional disability caused by pain. I would not make that finding for Dr Kuay describes Mr Baum as suffering from groin pain but on an intermittent, rather than on a continuing basis. It is pain that requires analgesia but not on a regular basis. In view of those findings, I would not be satisfied that Table 16 would underestimate Mr Baum’s level of disability because of the presence of chronic entrenched pain.
If I were wrong in that finding, I note that Dr Kuay’s assessment of
’s pain is that he attracts 15 points. I would make the same assessment for, on the evidence, Mr Baum’s pain does not meet the criteria for a higher rating of 20 points. I accept that Mr Baum was very distressed at the hearing and that his condition has a considerable impact on his life and on his sense of self worth. Despite my doing so, I cannot work outside the criteria that have been determined by Parliament and make the assessment by reference to criteria that might more accurately reflect the precise nuances of Mr Baum’s condition. The medical officers making the assessment have been similarly limited.
Mr Baum
It would be difficult to come to the conclusion that Mr Baum has a level of disability because of the presence of chronic entrenched pain that would lead to the conclusion that his level of disability would be underestimated were the assessment were to be conducted under a table other than Table 20. In view of
Dr Kuay’s description of Mr Baum’s pain and its intermittent nature, I would not be satisfied that Mr Baum’s pain or fatigue is a significant factor contributing to the person’s overall functional impairment. I would have made the assessment under Table 16 but, as I have said, I do not accept that I can make an assessment at all.
Does any impairment from which Mr Baum suffers as a consequence of anxiety and depression arise from a condition that has been documented, diagnosed, treated and stabilised?
The only detailed evidence regarding the anxiety and depression from which Mr Baum suffers was given by Dr Miller. Dr Kuay assigned a rating of 10 impairment points in his letter of 19 May 2008 but it would appear that he was not asked whether that condition had been documented, treated and stabilised as required by the Introduction to the Impairment Tables. The only evidence that I have in that regard is that from Dr Miller.[114] Even then, I can only have regard to the 13 week period starting on 16 February 2007. That was a time, I find, when Mr Baum’s condition had yet to be diagnosed. No reference is made to it in the reports and certificates of Dr Kuay and Dr Ord or in the reports Dr Kuay gathered together regarding Mr Baum’s condition. I find that it is not a condition that has been documented as required by the Introduction to the Impairment Tables even if it has been diagnosed. On the basis of Dr Miller’s evidence, I find that Mr Baum’s depression and anxiety had not been treated during the 13 week period. Certainly, he was later prescribed anti-depressant medication but not until June 2008 and so over a year after the 13 week period. On the same basis, I find that Mr Baum’s depression and anxiety had not been stabilised. During the 13 week period, it was too early to ascertain whether the condition was or was not permanent.
[114] Ms Costa also mentioned depression and anxiety in her latest JCA report.
It follows that Mr Baum’s depression and anxiety was not a condition that met the description of a condition set out in the Introduction to the Impairment Tables. As it did not meet them, functional impairments consequent upon that condition could not be assessed for a rating under those Tables.
Conclusion
In view of my findings, I am satisfied that the Secretary’s decision that Mr Baum was not qualified for a DSP was the correct decision during the period from 16 February 2007 to 19 May 2008. There is no discretion to be exercised under s 94 of the SS Act. The reason why Mr Baum is not qualified is that he does not have an impairment which is assessed at a rating of 20 points or more under the Impairment Tables. In view of that conclusion, I do not need to consider whether Mr Baum satisfied s 94(1)(c) by having a continuing incapacity to work during the relevant 13 week period. For these reasons, I have decided to affirm the decision of the SSAT dated 25 October 2007.
I certify that the ninety seven preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: .......................................................................
Kate Conners Associate
Dates of Hearing 23 October 2008
Date of Decision 28 November 2008
Representative for the Applicant self-represented
Representative for the Respondent Mr T Noonan
Centrelink
106 ALR 577, Mason CJ, Deane, Toohey and Gaudron JJ, Brennan J dissenting
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