Richards and Secretary, Department of Employment and Workplace Relations

[2007] AATA 1974

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1974

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2006/0814

GENERAL ADMINISTRATIVE DIVISION		)
Re		LEONE RICHARDS

Applicant

And SECRETARY, DEPARTMENT OF EMPLOYMENT & WORKPLACE RELATIONS

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member

Date21 November 2007

PlaceSydney

Decision The decision under review is affirmed.  

..................[Sgd]........................

Ms Robin Hunt
  Senior Member

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – criteria not met - failure to meet 20 impairment points rating – no continuing inability to work

Social Security Act 199, s94  

REASONS FOR DECISION

21 November 2007 Ms Robin Hunt, Senior Member   

summary

1.      Mrs Leone Richards, the applicant, has been diagnosed with a condition known as transient global amnesia or TGA. Due to this condition, Mrs Richards is seeking a disability support pension. The Social Security Appeals Tribunal (SSAT) on 30 May 2006 affirmed a Centrelink determination and internal review decision rejecting Mrs Richard’s claim. Mrs Richards sought review of the SSAT’s decision before the present Tribunal. After considering Mrs Richards’ medical evidence and all the material before me, I have decided that Mrs Richards does not qualify for the disability support pension for the reasons set out below. As I have found Mrs Richards does not qualify for the disability support pension, I have affirmed the SSAT’s decision.

Issues

2.      The issues which determine Mrs Richards’ eligibility for the pension and which were considered by the Tribunal for the review were:

(a)Whether Ms Richards met the qualification criteria for disability support pension contained in section 94 of the Social Security Act 1991 (the Act) between 28 September 2005 and 27 December 2005;

(b)Whether Mrs Richard’s medical conditions had a combined impairment rating of 20 points or more under the Impairment Tables in Schedule 1B of the Act; and

(c)If so, whether she had a “continuing inability to work” as defined in section 94(2) of the Act.

consideration of evidence

3.      Mrs Richards told the Tribunal that she did not wish to attend a hearing or give oral evidence. She asked the Tribunal to make a decision on the material before it. Mrs Richards’ husband confirmed at a directions hearing that his wife did not wish to appear.

4. In order to qualify for the disability support pension, an applicant must satisfy section 94 of Social Security Act 1991. The section sets out that a person qualifies if certain conditions are met. Under subsection (1)(a) to (c)(i), a person qualifies where:

(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;…

…

5.      Subsection 94(2) defines the meaning of ‘continuing inability to work’. Broadly, under subsection 94(2), a person has a continuing inability to work because of an impairment if the impairment is sufficient to prevent the person from doing any work independently of a program of support or from undertaking any training within the next 2 years.

6. These section 94 requirements are cumulative and Mrs Richards must meet all of the criteria to qualify. Mrs Richards argues that she meets all the above criteria and is therefore entitled to the relevant pension. On the strength of medical reports and assessments Mrs Richards has furnished, I accept that Mrs Richards does have a psychiatric impairment and meets paragraph (a) of the section.

7.      The further requirements as to impairment points and continuing ability to work are the subject of disagreement between the parties. I have dealt with them next.

8.      I had before me for the review several medical reports. Dr W D Wade furnished a treating doctor’s report dated 4 October 2005 with a diagnosis of dissociation disorder and noting a history of Transient Global Amnesia (TGA). Dr D B Williams, neurologist, has seen Mrs Richards on several occasions and is her treating specialist. Dr Williams in the report dated 22 December 2006 recorded that Mrs Richards had been a patient of his for more than five years. Dr Williams furnished reports dating from 9 April 2003 through to 12 April 2006, 5 July 2006, 22 December 2006 and another written opinion on 7 August 2007.

9.      Dr Williams wrote to a referring doctor, Dr M Hockings, on 9 April 2003 that Mrs Richards suffers from Transient Global Amnesia. In the opinion section of his report to Dr Hocking, Dr Williams wrote that the two episodes she had experienced were consistent with his diagnosis as, although 90% of people had no recurrence, 10% have two or more episodes. On 12 April 2006, Dr Williams wrote that Mrs Richards had experienced another 5 attacks since he first saw her and that “it was recognised that the episodes were triggered by emotional distress. He suggested that this assessment might be read with Dr Wade’s psychiatric assessment as he believed the two conditions were interrelated and synergistic in their adverse affect”.

10.     In his report of 5 July 2006, Dr Williams again states that Mrs Richards suffers from TGA and explains that it is a neurological disorder for which there are a number of recognised risk factors. He adds that the risk factors, in themselves, are not a predisposition to the condition. He describes emotional stress as a recognised precipitant but not a sufficient cause of the condition by itself. He described Mrs Richards’ condition, explaining that it affects di-encephalic structures, although the precise mechanism was unknown. He said TGA causes impaired memory registration and recall. He stated that less than 3% of TGA sufferers have more than three attacks and Mrs Richards falls into the high risk category having had 8 attacks in a six year period, three of these in the nine months preceding 22 December 2006. In Dr William’s opinion, the “pattern of frequent attacks shows no sign of remission”. Dr Williams goes on to state that Mrs Richards has been diagnosed by her Psychiatrist as suffering chronic depression and anxiety and feels that this may go some way to explaining the number of episodes of TGA, although only predisposed individuals will develop TGA as a result of anxiety.

11.     Dr Williams said he has been advised by Mrs Richards’ family members that, during an episode of TGA, Mrs Richards becomes disoriented and agitated, repeating the same questions every few seconds. This behaviour continues for the duration of the attack and Mrs Richards is unable to communicate normally during this period. Dr Williams states that the given description is typical of TGA. He adds that, for a period of up to seven days after an attack of TGA, Mrs Richards enters a state of disassociation where reality and unreality are confused. The history he sets out is that, during this period, Mrs Richards is unable to communicate effectively, problem-solve or make decisions, as her concentration and memory are impaired, and she is anxious. While symptoms gradually diminish over a five to seven day period, lassitude with heightened anxiety may persist for up to two weeks following an attack. Dr Williams can offer no recognised treatment or prophylaxis for TGA. He says supportive care is required because of the cognitive dysfunction.

12.     A medical assessment report completed on 31 October 2005 noted that Mrs Richards had barriers to economic and social participation related to her depression and TGA but that she was now fit for full time work. On 16 November 2005, a Centrelink delegate awarded an impairment rating of 10 for depression and nil points for TGA.

13.     Dr Williams, in accordance with Table 8 (neurological function: memory, problem solving, decision making abilities and comprehension) for the ‘Assessment of Work-Related Impairment’, gives Mrs Richards a rating of 30 points ‘during an episode of TGA’ and a rating of 10 points during the following 5-7 days of dissociative behaviour. He goes on to say that, in his opinion, Mrs Richards is not suitable for employment. “I cannot imagine any form of employment which does not require concentration, use of memory, communication, decision making and problem solving. TGA prevents Mrs Richards from undertaking educational or vocational training for the very reasons stated above”.

14.     Dr Williams wrote on 5 July 2006 that the SSAT, in its decision about Mrs Richards, made significant misinterpretations of the medical situation and his concerns that any decision based on those misinterpretations may therefore be incorrect. In view of Dr Williams’ concerns, the respondent’s representative wrote to Dr Williams and invited him to address the effect on Mrs Richards’ ability to function in light of his knowledge of her condition and comment on the report of Dr Gibson, who provided a report dated 22 February 2007.

15.     The respondent had obtained the report dated 22 February 2007 from Dr Andrew Gibson, an occupational physician. Dr Gibson noted that Mrs Richards saw her psychiatrist, Dr Wade, every six months and also saw a psychologist, although she now used her daughter, who was a neuropsychologist. He noted that Mrs Richards had also suffered tachycardia with a heart beat over 200 resulting in blackouts and been under the care of a cardiologist but had learned to manage her tachycardia. Dr Gibson recorded Mrs Richards describing to him symptoms of sleeplessness, nausea, gastro-intestinal churning, tachycardia, sweating, tremulousness, severe headaches and having a very short fuse (which he took as meaning that she was confronted easily). He further noted her other problem of TGA and set out Mrs Richards’ history of attacks. He recorded her first attack of TGA as occurring in October 2000 and subsequent further episodes in October 2002, February 2003, June 2003, February 2004, November 2005, February 2006 and June 2006.

16.     Mrs Richards reported to Dr Gibson episodes involving loss of memory for 30 minutes to 2 hours. During this time she would go on with whatever it was she had been doing. She may or may not have a headache at the time. Dr Gibson took a history that the episode in February 2004 had occurred at work and that a friend of Mrs Richards told her she kept asking for the same file over and over again, but had otherwise been normal in appearance and behaviour.

17.     Dr Gibson recorded further that Mrs Richards reported, following the episodes of amnesia, she had a sensation of what she termed “weird reality”, during which she had pictures in her head of unrelated times and places. He also recorded that she said she was vague, had poor concentration, was slow to recall events and was confused about dates. Her family had said that she was quiet, but very sensitive, by which they meant that she was agitated by noises and lights being more intense than normal. This strange sensation would last a variable period.

18.     Dr Gibson reported that Mrs Richards was particularly worried about when the episodes may happen as they were unpredictable. Due to this, she said she had become “agoraphobic” and would always take a family member out with her, but she still felt agitated and anxious. She said she tended to be reclusive and avoided contact with family and friends. She tended to stay home and read a lot of books and “potter around”.

19.     In terms of an impairment rating, Dr Gibson was of the opinion that Mrs Richards’ depression/anxiety was best rated using Table 6 (psychiatric impairment) under the impairment tables. He thought a rating of 10 points was applicable in September 2005 and at the time of his report. With respect to her TGA, Dr Gibson noted a disparity of opinion between that provided by the Health Services Australia (HSA) doctor on 31 October 2005 and that provided by Dr Williams in his letter dated 22 December 2006. The HSA doctor used Table 21 (intermittent conditions) to undertake the assessment and selected level 3 with respect to severity. He used ‘prolonged’ as the description for duration of episodes, giving a severity grading code of D. Using Table 21.4, and a severity rating of D, he selected “2+” as the frequency of attacks giving an impairment rating of nil. Dr Gibson disagreed with the opinion of the HSA doctor because Table 21 has not been used to assess both the acute short-lived episode of amnesia followed by a more prolonged period of “unreality”.

20.     However, Dr Gibson also disagreed with Dr Williams in that, given the intermittent nature of Mrs Richards’ TGA, Dr Gibson did not believe it was appropriate to use Table 8 for the assessment. He stated, “given that there are three distinct phases associated with the condition, namely the severe short-lived phase of amnesia, a follow-up period of altered reality and the rest of the time when she is normal from the amnesia point of view it is more appropriate to use Table 21”.

21.     Dr Gibson gave the following impairment rating, using Table 21.

Firstly during the short-lived amnesic episode of amnesia –

Table 21.1 – severity, ‘level 3’

Table 21.2 – duration, ‘prolonged’

Table 21.3 – severity, ‘level F’

Table 21.4 – using a frequency of 2+ affected days per year, the impairment rating is nil.

Secondly, during the altered reality phase of the condition:

Table 21.2 – severity, ‘level 2’

Table 21.2 – duration, ‘prolonged’

Table 21.3 – severity rating ‘code D’

Table 21.4 – selecting a frequency of 20+ affected days per year (taking the apparent worse case scenario where Mrs Richards described three episodes in a 12 month period with each episode of unreality lasting a maximum of 7 days) the impairment rating is 5 points.

Adding these two ratings together gives a total impairment rating of 5 points for the Transient Global Amnesia. This is the impairment rating which is appropriate for Mrs Richards’ Transient Global Amnesia in September 2005 and at present.

22.     In relation to Mrs Richards’ fitness to work, Dr Gibson assessed her as fit to undertake clerical and administrative work on a full-time basis, preferably in a low stress environment. Further, he was of the opinion that the diagnosis of TGA did not exclude her from undertaking further training or education as she functioned normally from the amnesia point of view. Dr Gibson also observed that Mrs Richards’ condition, being intermittent, was not unlike epilepsy. Just as a person with epilepsy might undertake work, employment and training, despite intermittent seizures, Mrs Richards could do the same.

23.     The Secretary forwarded Dr Gibson’s report to Dr Williams for comment. Dr Williams responded on 7 August 2007. While he pointed out that he made fine discriminations every day in his medical practice, he had not previously interpreted the Impairment Tables and deferred to Dr Gibson’s opinion in that respect. Dr Williams tried to place himself in Mrs Richards’ place in considering her frightening TGA episodes and thought it unreasonable to expect her to willingly place herself in situations which might precipitate episodes for which there is no effective prophylaxis or treatment.

24.     Mrs Richards, through her husband, informed the Tribunal on 19 September 2007, that she had made an appointment to see another doctor on 3 October 2007, and would endeavour to obtain a further report and assessment to assist her claim. On 9 October 2007, Mrs Richards forwarded a report from Dr Kumrun Salam dated 26 September 2007. In this report, Dr Salam set out that he was a General Practitioner and that Mrs Richards had been a patient of the practice for 25 years. He noted that Mrs Richards was hospitalised with her first TGA episode in October 2002 and had presented herself to the practice after that event. He set out that she was referred to Dr Williams after the second episode in 2002 and that Dr Williams saw her again in 2003.

25.     Dr Salam gave an impairment rating of 30 points under Table 8 “during a TGA episode”. He recounted her symptoms during an episode. He added that she should be awarded a rating of 10 points under Table 8 “for her dissociative behaviour, normally for a period of five to seven days following an episode of TGA”. He recounted her symptoms during this period.

impairment tables

26.     I agree with the respondent’s submission that Dr Salam erred in using Table 8 to assign points for Mrs Richards’ condition. The preamble to Table 8 reads: “… it is used to rate impairment of higher neurological functions of memory, problem solving, decision making ability and comprehension.” However, Table 8 is not the appropriate table due to the intermittent nature of the condition. This leads me to prefer the assessment of Dr Gibson of Mrs Richards’ impairment rating at 15 points using Table 21 for intermittent conditions.

27.     Dr Salam and Dr Williams take make their assessment as though the infrequent episodes of TGA are continuous rather than intermittent and consequently applied the incorrect impairment table. Dr Salam makes no mention of the number of attacks Mrs Richards has suffered since diagnosed with this condition. Dr Williams in his report dated 22 December 2006 stated Mrs Richards suffered 8 attacks in a 6 year period. As well, in a later report dated 7 August 2007, Dr Williams said the residuum of the attacks lasted no longer than a week.

28.     From Dr Salam’s report the second episode suffered by the applicant in October 2002 was 2 years after the first episode in October 2000. While Mrs Richards’ impairment may be likened to an impairment of higher neurological functions of memory, problem solving, decision making ability and comprehension as described in Table 8, these symptoms occur infrequently. Even if they last for a week, as Dr Williams reported, they have only occurred on 8 occasions in 6 years, a total of 8 weeks in a 6 year period. There is no evidence to suggest Mrs Richards is affected by this condition at other times.

29.     In assessing Mrs Richards’ impairment rating, the assessment of Dr Gibson is based on the appropriate table, Table 21, for intermittent conditions, unlike those of Dr Williams and Dr Salam. It was Dr Gibson’s assessment that because of the transient nature of the condition, Table 21 for Intermittent Conditions should be used. The preamble to Table 21 states it should be used for “Intermittent but continuing disorders that remain asymptomatic between discrete episodes of impairment.” Dr Gibson identified 3 distinct phases associated with the condition, namely the short-lived phase of amnesia, a follow-up period of altered reality, and the rest of the time when Mrs Richards is normal. Dr Gibson assigned 5 points for the first phase and 10 points for the second phase. This results in a total impairment rating of 15 points under Table 21. Because of the infrequent nature of the episodes assigning points under Table 21 is correct and Mrs Richards has a total impairment rating of 15 points. This means that Mrs Richards falls short of 20 impairment points and does not satisfy paragraph 94(1)(b) of the Act.

continuing inability to work

30.     As Mrs Richards does not meet the requirement that her condition is assessed at 20 impairment points, it is not necessary to make any further finding about her ability to work. I note that the SSAT found nevertheless that Mrs Richards could work even if not at her former occupation and that she could undertake training.

31.     In his report dated 2 October 2007, Dr Salam has not commented on Mrs Richards’ capacity for work. Dr Williams said he tried to put himself in her place and thought it would be very challenging for Mrs Richards to try to work because of her fear of an attack of TGA. I accept that her psychiatrist, Dr Williams, has advised that she should not return to her former work and possibly could not work at all because of her unwillingness to risk another seizure or to place herself in a stressful situation which might precipitate an episode.

32.     However, Dr Gibson formed the opinion that Mrs Richards does not have a continuing inability to work. The infrequent nature of the episodes of TGA and duration of no more than a week, indicate she is affected for only a small part of any one year. The remainder of the time she is not affected in any way. Her episodes of TGA occurred infrequently. The period she is unaffected overshadows the period when she has an episode. I prefer the opinion of Dr Gibson given in his report of 22 February 2007 that the diagnosis of total global amnesia does not exclude Mrs Richards from working or from undertaking further training or education. Dr Gibson believes Mrs Richards is fit to undertake clerical and administrative work on a full time basis. I agree, on balance, with Dr Gibson’s observation that Mrs Richards’ condition, being intermittent, was not unlike epilepsy and that in the same way as some persons with epilepsy might undertake work, employment and training, despite intermittent seizures, Mrs Richards could do the same. This means she also does not meet the criterion in paragraph 94(1)(ii) for the disability support pension.

Decision

33.     The decision under review is affirmed.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed: [Talaishia Collis]
  Associate

Date/s of Hearing  Hearing on the papers 
Date of Decision  21 November 2007        
Solicitor for the Applicant          Self-Represented Applicant       
Solicitor for the Respondent     Mr Ken Bullock –
  Centrelink Legal Services Branch