Re Rudder and Secretary, Department of Employment and Workplace Relations

[2006] AATA 249

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2005/797

GENERAL ADMINISTRATIVE DIVISION		)
Re		ALLEN RUDDER

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT AND WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms MJ Carstairs, Member

Date16 March 2006

PlaceBrisbane

Decision The Tribunal affirms the decision under review  

.         ........[Sgd]......

M J Carstairs
  Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – blind pension – requirement that condition has been treated or stabilised – unable to obtain rating under schedule 1B tables – ineligible for pension.

Social Security Act 1991 ss94, 95, Schedule 1B

Re Cowley and Secretary, Department of Social Security (1986) 10 ALD 202
Re Tlonan and Secretary, Department of Social Security (1997) 24 AAR 467

Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190

REASONS FOR DECISION

16 March 2006 Ms M J Carstairs, Member

1.      Allen Rudder claimed disability support pension in 2004, basing his claim on his poor eyesight, which he attributes to wearing glasses from 1970 to 1990.   Mr Rudder has very poor vision in both eyes, and suffers a loss of visual field in the left eye.

2.      Disability support pension is a payment made to those who have a disability or a chronic illness that will prevent them working or being retrained within a two year period.  A particular category of disability support pension, commonly referred to as blind pension is available for people with very restricted visual acuity.

3.      Centrelink has determined that Mr Rudder is not eligible for disability support pension, in particular because he has declined the various treatments to correct vision that might be available.   This issue affects any entitlement to both disability support pension and blind pension.

THE ISSUES

4.      There are two issues in Mr Rudder’s case:

§his qualification for disability support pension under s94 of the Social Security Act 1991(the Act); and

§his qualification for blind pension under s95 of the Act.

THE EVIDENCE

5.      The medical evidence included two reports by Dr P Brady, Mr Rudder’s general practitioner (T7, T24) who reported that Mr Rudder has headaches and nausea when wearing glasses even at half strength.  Dr Brady had been seeing Mr Rudder for only one month at the time of his first report (T7), but was able to state that Mr Rudder had seen Dr  L Lee, ophthalmologist in March 2004 and Dr Lee has suggested that Mr Rudder have LASIK surgery or wear contact lenses.  LASIK surgery is a laser procedure for reducing dependency on glasses or contact lenses by changing the shape of the cornea. Dr Brady stated that Mr Rudder refuses surgery and will not wear contact lenses as he believes that they will be no better than glasses.  In his second report Dr Brady diagnosed  high myopic refractive error and said that Mr Rudder can wear glasses for only 15 minutes before he experiences side effects including throbbing eyes.

6.      In a report dated 8 May 2004 (T8), Mr Scott Smith, optometrist stated that spectacles improve vision but Mr Rudder will not wear them.  He said that contact lenses or LASIK surgery could correct the problem but that Mr Rudder does not like the idea.  In his oral evidence Mr Rudder told me that he could accept the LASIK surgery if he could find someone in whom he could place confidence to carry it out.

7.      In a report dated 28 June 2004 (T11) Dr J Lee, medical practitioner with Health Services Australia said that Mr Rudder is severely myopic.  She said however that his vision would correct to 6/6 with glasses, but she noted that Mr Rudder refuses glasses because he holds the belief that in the past wearing glasses caused deterioration in his vision.  Dr Lee concluded that under the Tables for Assessment of Work-Related Impairment in Schedule 1B of the Social Security Act 1991 (the Tables) no rating could be assigned, because medical practitioners are directed that a rating shall not to be assigned unless a condition is fully treated and stabilised.  She said in her oral evidence that trialling contact lenses would be recommended in view of the specialist medical evidence that contact lenses would probably correct the problem and were a non-invasive treatment option.

8.      Dr Lee also provided a statement dated 7 March 2006 (exhibit R2) where she outlined her reasons for concluding that the use of contact lenses was reasonable treatment.  She noted that the question was an open one in regard to LASIK surgery as it is invasive, has an estimated cost of some $4000, and there may be side effects.

9.      Mr Rudder referred me to extracts from writings about vision and adverse effects that can arise from correcting vision problems.  These included extracts from the Encyclopaedia Britannica and from a publication by J Liberman, Take off your Glasses and See.  He told me that his experience had confirmed to him that his vision had steadily worsened over the twenty years that he wore glasses and that it has changed little since he ceased wearing them.

DISCUSSION OF EVIDENCE AND FINDINGS

10.     All decision-makers who have addressed Mr Rudder’s claim have considered that he faces a fundamental problem because the provisions for assessing levels of disability in the Act require that the condition has been optimally treated.  I agree that this is correct.    The Introduction to the Tables provides:

…

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……

5.  The condition must be considered to be permanent.  Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future.  This will be taken as lasting for more than two years.  A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.

6.  In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:

·     what treatment or rehabilitation has occurred;

·     whether treatment is still continuing or is planned in the near future;

·     whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.

In this context, reasonable treatment is taken to be:

·     treatment that is feasible and accessible ie, available locally at a reasonable cost;

·     where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.

It is assumed that a person will generally wish to pursue any reasonable treatment that will improve or alleviate an impairment, unless that treatment has associated risks or side effects which are unacceptable to the person.  In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for a person not undertaking further treatment, it may be reasonable to consider the condition stabilised.

In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the 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.  

11.     The question of determining whether a condition is temporary or permanent was considered in the case of Re Tlonan and Secretary Department of Social Security (1997) 24 AAR 467 and also in Re Secretary, Department of Social Security and Dyer (1998) 51 ALD 190). The Tribunal in Tlonan also looked at the meaning of treated as used in the introductory words to the Tables.  The Tribunal at 476 said:

What is meant by the requirement that the condition be treated?  The word “treatment” means, among other things, “...the application of medical care or attention to a patient, ailment etc ..." (The New Shorter Oxford English Dictionary, 1993) …

These meanings must be considered in the light of the context in which the word “treated” is used in Schedule 1B of the Act.  Taken in that context, it seems to me that it should not be given a restrictive meaning.  That is to say, it should not be limited to medical treatment in the sense of surgery or the prescription of medication.  In its context, the word “treatment” refers to a broad range of therapeutic measures which are reasonable to adopt in the particular case and may include passive measures such as rest as well as active measures including, but not limited to, such diverse measures as the prescription of medication, physiotherapy, exercise generally and counselling.  What amounts to the treatment in any particular case will depend on the individual circumstances of that case.

12.     In Mr Rudder’s case the evidence from Dr Lee and Mr Scott Smith shows conclusively that Mr Rudder has myopia and visual field loss in the left eye.   The evidence from Mr Scott Smith is that the corrected vision would be to 6/6 in the right eye and to 6/6 minus 2 in the left eye.  Uncorrected it is less than 6/60 binocularly.   However it is corrected vision that is addressed in Table 13, which states that visual acuity refers to best corrected vision in the better eye with spectacles or contact lenses:  Schedule 1B of the Act.  Dr J Lee gave oral evidence, which I accept, that under Table 15, which is used to assess visual fields, Mr Rudder did not record any rating under any of the measurements in that Table.  She pointed out that the visual field of the right eye was normal and the left eye, though affected, was not affected in the ways that are rated under the Table.  That is, he does not have temporal or nasal hemianopia, upper or lower half loss,  nor does he have tunnel vision, which is also tested within the Table using measure for constriction of visual fields.

13.     I accept Dr Lee’s evidence that there are treatment options that are readily available to Mr Rudder.  In terms of the option for contact lenses, I accept that this is a treatment that is feasible and accessible.  On the evidence of Mr Scott Smith, which I accept, it is treatment that promises substantial improvement of vision and offers low risk.  Mr Rudder agreed that he had never tried contact lenses.  I accept that he has his reasons for not acting on the advice of his ophthalmologist and his optometrist to try contact lenses, spectacles and LASIK surgery.  However if there is reasonable treatment open, which is recommended by his own doctors, and which Mr Rudder does not try, it is not possible to say that his condition is treated.  When it is not treated it cannot be rated under the Tables. 

14.     I agree with Dr Lee’s conclusion that this means that with the special usage of the term permanent applying under the Tables, Mr Rudder’s eye condition cannot be given a rating under Table 13. I accept the uncontradicted medical evidence that the reduction in Mr Rudder’s field of vision rates nil under Table 15. This means that Mr Rudder cannot satisfy s94 of the Act, which requires as part of the qualification for disability support pension, that a person achieve a rating under the Tables of 20 points: s94(1)(b) of the Act.

15. For an entitlement to pension under s95 of the Act, the Tribunal has concluded in other decisions that qualification for blind pension also is assessed on corrected vision: Re Cowley and Secretary Department of Social Security (1986) 10 ALD 202. The Tribunal in Cowley noted that in order to qualify for blind pension a person must be so severely blind that the effects on daily living are the same as being totally blind, and that this must take account of corrected vision, unless a person cannot for any reason wear glasses or use contact lenses.  I was not satisfied that Mr Rudder cannot wear glasses or use contact lenses.  All the medical reports suggest the value of glasses or contact lenses for correcting Mr Rudder’s vision. . Further there is no medical practitioner who states that Mr Rudder is unable to use either.  Mr Rudder agrees that he has not tried contact lenses.  I am not prepared to find that Mr Rudder is unable to wear glasses or contact lenses. I accept that it is his preference not to do so, but I would require medical evidence to reach a conclusion that he cannot do so.

16. Section 95 of the Act requires that a person be permanently blind.  Table 15 sets out that a person meets the criteria for permanent blindness if their field of vision is constricted to ten degrees or less of arc from central fixation in the better eye irrespective of corrected visual acuity, or there is a combination of visual defects resulting in the same degree of visual impairment.   Mr Rudder does not have constricted vision (accepting the evidence of Dr Lee) and I was satisfied on the evidence of Dr Lee and Mr Scott Smith that the combination of visual defects do not equate with blindness in Mr Rudder’s case, particularly taking into account that there are reasonable treatment options open to him.   

DECISION

17.     The Tribunal affirms the decision under review.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member

Signed:  Jeff Mills

Legal Research Assistant

Date/s of Hearing  13 March 2006
Date of Decision  16 March 2006
The applicant was unrepresented
For the respondent                   Ms Christina Heffner, Departmental advocate