SAMUEL HOBBS and SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

[2009] AATA 917

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 917

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2008/5888

GENERAL  ADMINISTRATIVE  DIVISION		)
Re		SAMUEL HOBBS

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Dr Kerry Breen, Member

Date27 November 2009

PlaceMelbourne

Decision The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration according to the recommendations contained in the Reasons for Decision.

(sgd) Kerry Breen

Member

SOCIAL SECURITY ‑ disability support pension – genetic condition and its complications ‑ use of the Impairment Tables – assessment of work capacity ‑ decision set aside and remitted to Respondent for reconsideration

Social Security Act 1991 s 94 and Schedule 1B

Social Security (Administration) Act 1999 Schedule 2

REASONS FOR DECISION

27 November 2009 Dr Kerry Breen, Member

1.      Mr Samuel Hobbs, now aged 21 years, was granted disability support pension (DSP) from 20 May 2005.  In 2007 Centrelink initiated a review of his entitlement.  Centrelink is the service delivery agency for the Secretary to the Department of Families, Housing, Community Services and Indigenous Affairs (the Respondent).  For that review, Centrelink obtained a treating doctor’s report (TDR) from Dr R Savadirayan dated 28 August 2007 and a TDR from Dr S White dated 25 July 2008.  Centrelink also obtained a job capacity assessment dated 7 August 2008.  On 13 August 2008 a Centrelink delegate decided to cancel his DSP. 

2.      Ms J Argaet, of Scope Employment Futures, Mount Waverley, sent a letter dated 18 August 2008 to Centrelink, on Mr Hobbs’s behalf.  This letter appears to have resulted in a second job capacity assessment on 12 September 2008.  The decision to cancel DSP was confirmed by Centrelink on 16 September 2008.  After an authorised review officer from Centrelink affirmed the decision on 16 October 2008, Mr Hobbs sought review of the decision by the Social Security Appeals Tribunal (SSAT).  On 1 December 2008 the SSAT also affirmed the decision.  Mr Hobbs then sought review of the SSAT decision by this Tribunal.

3.      Mr Hobbs was born Jee Man Park in South Korea on 4 July 1988 with the genetically determined disability of achondroplasia (a cause of dwarfism).  He was adopted and came to Australia in May 1990.  His adoptive father died in 2001.  Mr Hobbs contends that his disabilities are such that, despite a desire to work, he is not capable of more than a few hours work per week.  The Respondent contends (in summary) that Mr Hobbs does not have an impairment rating of 20 points or more under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act). The Respondent also contends that he does not have a continuing inability to work within the meaning of s 94 of the Act, and that for these reasons, Mr Hobbs is not eligible to receive DSP.

4.      The Tribunal began to hear this matter on 10 August 2009 but the hearing was adjourned after only 10 minutes when it became apparent that the telephone link by which Mr Hobbs was appearing was highly unsatisfactory.  Mr Hobbs stated that he was on a train using a mobile phone and only had limited time to give to the matter on that day.  Mr Hobbs and the Respondent subsequently agreed that the Tribunal should complete the hearing on the papers. That is, that the Tribunal review the decision of the SSAT by considering the documents lodged with the Tribunal and without holding a hearing, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975.  Meanwhile, Centrelink arranged for Mr Hobbs to undergo a further medical assessment but he did not keep the appointment.

ISSUES

5.      The issues I have to determine are:

·Does Mr Hobbs suffer from any permanent medical conditions?

·What impairment ratings do his conditions attract?

·And, if the total impairment rating is 20 points or more, what is the impact of these conditions on his capacity to work?

6. The relevant assessment period, pursuant to clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), is the 13 weeks from 13 August 2008.

LEGISLATION

7. The relevant legislation includes s 94(1) of the Act and the Impairment Tables in Schedule 1B of the Act and clause 4 of Schedule 2 of the Administration Act.

8. Section 94 (1) of the Act 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;

…

does Mr hobbs Suffer FROM ANY PERMANENT MEDICAL CONDITIONS?

9.      From Mr Hobbs’s claim form and from the evidence provided by his treating doctors, the diagnosis under consideration is achondroplasia and its complications.

ACHONDROPLASIA

10.     The Respondent has provided the Tribunal with a number of medical descriptions of Mr Hobbs’s disabilities.  There are two reports from Dr Savadirayan of the Royal Children’s Hospital dated 30 May 2005 and 28 August 2007, a report compiled by Dr D Cheung of Health Services Australia (HSA) on 7 June 2005, and a TDR dated 25 July 2008 completed by Dr White of Genetic Health Services Victoria, based at the Royal Children’s Hospital, Melbourne.  Dr White mentions that Mr Hobbs attends the genetics clinic at RCH (Royal Children’s Hospital) every 6-12 mths & orthopaedics also.  As it will become relevant later, I note here that neither party provided the Tribunal with a report regarding the orthopaedic elements of Mr Hobbs’s disability.

11.     Of these reports, the most detailed is that of Dr White.  She wrote:

Sam has a genetic condition called achondroplasia which causes short stature and abnormal bone formation.  ...He has had many complications including hip problems requiring surgery, hydrocephalus requiring VP shunt, squint, conductive hearing loss. 

Under the heading of current symptoms, she wrote:

He experiences back pain when walking long distances.  He has a dislocated left head of radius which limits the use of his left arm.  Sam has had some difficulties with learning which is seen in some young people with achondroplasia.

12.     Dr White identified past treatment as including Hip surgery, VP shunt and foramen magnum surgery.  Under the heading of Impact on ability to function, Dr White reported:

Sam needs modification of surroundings due to his achondroplasia.  He cannot walk for very long distances.  He may need repetition of instructions due to difficulties with comprehension.  The impact of his condition was rated as expected to persist for more than 24 months and to remain unchanged within the next two years. 

Under the heading of Other information…, Dr White wrote:

Sam has found the transition to adult life challenging due to the combination of his genetic condition, learning difficulties and relationship difficulties within his family.

13.     Dr Savadirayan provided less detail in his TDR of May 2005 but did report decreased exercise tolerance, painful hips and lower back, and decreased gross motor function.  In his 2007 TDR Dr Savadirayan now listed achondroplasia as a condition impacting on ability to function.  The report also identified the operation of foramen magnum decompression (i.e. on the base of the skull) as having been undertaken in 1994, when Mr Hobbs would have been six years old.

14.     Dr Cheung of HSA assessed Mr Hobbs on 7 June 2005.  The handwritten elements of the report are difficult to decipher.  He records surgery on legs, hips, eye/ear, neck, spine due to painful joints.  He noted the use of two different pain-killing drugs, Kapanol and Panadeine Forte.  [The Tribunal notes that Kapanol is morphine sulphate].  Dr Cheung described his impairment as permanent and attracting 20 impairment points under Table 4 of the Impairment Tables. 

15.     In the typed final section of the report, Dr Cheung wrote:

He has had schooling until Year 9, but did not complete Year 10.  ...He has deformities of his spine and limbs, especially his hips.  His pain and stiffness interfere with lifting, bending and other manual activities.  He is unable to play sports at school.  Mobility is restricted and he cannot walk any distances before stopping to rest.  He can ride a push bike for a kilometre but tires easily, and has resorted to motorised scooters.  ...He has also been prescribed strong analgesics for joint pain.  This youth’s musculoskeletal condition has resulted in significant limitations to endurance, mobility and dexterity.  He is unfit for open market employment and full time work for the next 2 years, after which he should be reviewed.

16.     The two reports by Job Capacity Assessors (JCAs) in August and September 2008 contain some additional medical information provided by Dr White per telephone and by Mr Hobbs at interview.  Specifically, JCA Ms R Edmends refers to a telephone conversation with Dr White in her report.

17.     From Ms Edmends report, it appears that Mr Hobbs informed her of the following additional facts:

…learning problems, surgeries to address the hydrocephalus (required shunt insertion at age 3 years), and the spinal problems (neck during primary school and hips at around 16 years). 

She also reported:

The learning difficulties mean that Sam has trouble with written and verbal comprehension...and during discussion with Sam’s treating doctor, she indicated that the achondroplasia impacts on his speed of processing and his analytical and judging abilities.  This in turn impacts on his decision making skills.  There is no treatment as such for the latter.

18.     The evidence regarding Mr Hobbs’s medical conditions is unsatisfactory for a decision maker to decide this matter fairly.  Although Mr Hobbs attends two specialist clinics (genetics and orthopaedics) at the Royal Children’s Hospital for a review every 6-12 months, it might be inaccurate to describe the doctors in either clinic as treating doctors.  A significant proportion of the physical difficulties experienced by Mr Hobbs are in the field of orthopaedics, yet no report is available from a specialist in that area. 

19.     There are references to learning difficulties in Dr White’s report.  However, no formal assessment of intellectual capacities is available, despite the existence of an underlying condition (hydrocephalus treated surgically in early childhood) with the potential to adversely affect intellectual functioning.  Mr Hobbs’s condition has been present from birth.  Common sense suggests that his physical disabilities are unlikely to improve and are more likely to deteriorate, and yet I am given reports suggesting that improvement in some areas can be expected.  As I shall describe later, there are also questions about Mr Hobbs’s literacy and his decision-making capacity.

WHAT IMPAIRMENT RATINGS DO HIS CONDITIONS ATTRACT?

20.     The degree of impairment Mr Hobbs experiences and the assessment of this impairment using the various Impairment Tables are the subject of disagreement.  I first summarise the different opinions available to me and then comment on how these differences are difficult to reconcile.

21.     In 2005, HSA employee Dr Cheung chose to use Impairment Table 4 (Function of the Lower Limbs) to rate Mr Hobbs’s disability and gave a permanent impairment rating of 20 points.  In the first JCA report of 7 August 2008, the JCA chose Impairment Table 20 (Miscellaneous) and assessed Mr Hobbs’s impairment at 15 impairment points.  The second JCA a month later identified three conditions to be assessed, namely achondroplasia under Table 20 (15 points), upper arm disorder under Table 3 (5 points) and intellectual disability under Table 10 (nil points).  In regard to the application of Table 10, the JCA wrote there is no evidence of an intellectual disability.  [I note in passing that the comment no evidence was probably correct in that no formal assessment has been made of Mr Hobbs’s intellectual capacity.]

22.     In its Statement of Fact and Contentions, the Respondent has contended that under Table 20, no impairment rating is justified.  It also contends that it is more appropriate to rate each part or organ, which is individually affected, under the relevant tables.  The Respondent contends that the occurrence of back pain when walking long distances is a result of weakness in Mr Hobbs’s lower limbs and therefore should be assessed under Table 4 and that the medical evidence justifies a nil assessment under Table 4.  The Respondent also contends that the medical evidence supports an assessment of 5 points under Table 3 for the non-dominant upper limb condition.

23.     The appropriate use of the Impairment Tables is very relevant to Mr Hobbs’s claim.  In the Introduction to the Impairment Tables, paragraph 2 notes that:

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 to be asked in each and every case is “which body systems have a functional impairment due to this condition?”  

Paragraph 4 states that:

The first step is thus to establish a working diagnosis based on the best available evidence. 

Paragraph 7 states that:

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 but that the possibility of double assessment of a single loss of function must be guarded against.

In addition, paragraph 8 states that:

In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it.

24.     The above guidance suggests to me that Dr Cheung was correct when he selected Table 4 (Function of the Lower Limbs) as the best means of assessing the impact of the hip and back complications of Mr Hobbs’s achondroplasia.  The use of Table 3 (Upper Limb Function) in relation to the chronically dislocated left head of radius (elbow) is also self-evidently correct.  It is less clear to me which Table or Tables should be used in assessing any of the other impairments that achondroplasia has led to in Mr Hobbs.

25.     The JCA in September 2008 chose Table 20 (Miscellaneous) to assess achondroplasia in what I might term a global sense but the JCA emphasised Mr Hobbs’s various surgeries, his learning difficulties and his decision-making difficulties, and nowhere considered his back pain and issues of restricted walking capacity or tiredness.  The same assessor identified Learning Disability as a separate impairment, applying Table 10 (Intellectual Disability) and not Table 8 (Neurological Function: Memory, Problem Solving, Decision Making Abilities and Comprehension).  The use of Table 10, by my reading of that Table, was not open without recourse to formal measurement of intellectual ability.

26.     These difficulties in applying the Impairment Tables have been caused in my view by the failure to observe the essential introductory guidance contained in that document.  I am therefore not in a position to decide this aspect of Mr Hobbs’s appeal at present.  As I will discuss later, the appropriate impairment ratings and the relevant Impairment Tables to apply should become clearer if or when the nature of Mr Hobbs’s problems with learning, memory, concentration and decision-making are more accurately diagnosed; and when the nature of the physical problems leading to chronic lower back pain, tiredness and limited walking and standing capacity are clarified by an orthopaedic report.

IF THE TOTAL IMPAIRMENT RATING IS 20 POINTS OR MORE, WHAT IS THE IMPACT OF THESE CONDITIONS ON HIS CAPACITY TO WORK?

27.     The material available to the Tribunal about Mr Hobbs’s work capacity includes Mr Hobbs’s application forms, his evidence to the SSAT, the opinions expressed in the TDRs and the reports of the JCAs.

28.     It is clearly stated in some of these documents that Mr Hobbs is very keen to be employed.  However, as admirable a sentiment as that may be, this sentiment must play no part in any objective decision about his actual capacity for work.

29.     In 2005 Dr Cheung expressed his assessment as follows:

This youth’s musculoskeletal condition has resulted in significant limitations to endurance, mobility and dexterity.  He is unfit for open market employment and full time work for the next 2 years, after which he should be reviewed. 

Mr Hobbs was 16 years old at that time.

30.     Dr Savadirayan in his TDR of May 2005 listed the condition of achondroplasia under the heading of other medical conditions which are generally well managed and cause minimal or limited impact on ability to function but did report decreasing exercise tolerance, painful hips and lower back, and decreased gross motor function.  In his 2007 TDR Dr Savadirayan now listed achondroplasia as a condition impacting on Mr Hobbs’s ability to function but did not complete sections H to J of the TDR form that cover that impact.

31.     In 2008 Dr White reported on Mr Hobbs’s:

Impact on ability to function as follows: Sam needs modification of surroundings due to his achondroplasia.  He cannot walk for very long distances.  He may need repetition of instructions due to difficulties with comprehension.

32.     The views of the JCAs as to Mr Hobbs’s work capacity are summarised as follows.  In August 2008, JCAs Kornelia Szabo and Eleanor Eshel, both registered occupational therapists, working together concluded that Mr Hobbs had an assessed full time work capacity...of 30+ hours per week and was best suited to Disability Employment Network.  Their report makes no mention of possible learning difficulties.  Mr Hobbs is quoted as:

…living independently attending acting classes and working casually for two restaurants as a Maitre-D.  Client reported he is keen to commence full time employment with support to obtain employment.

33.     This JCA report refers to an earlier JCA report from 2005 in the following terms: 

JCA report completed on 7 June 2005 indicated by 24 months client would be able to sustain up to 15-29 hours per week.  Given 24 months has passed, client has continued to receive treatment, physical capacity has improved and client is able to live independently it is expected given appropriate employment and modifications client will be able to sustain 30+ hours per week.

34.     A month later, JCA Rowena Edmends, whose professional discipline is given as other, also provided a report.  She assessed Mr Hobbs’s medical conditions under three headings of achondroplasia, dislocated left head of radius and learning disability.  In her report, she wrote:

Sam reported that this position [the role of maitre-d of a wine bar] involved around 20 hours per week and although he enjoys the industry, he reported ceasing this work because he wanted to obtain more consistent employment. 

Later in the report she wrote:

Based on this and the discussion the assessor had with Sam’s treating doctor, his baseline work capacity is assessed as 15-22 hours per week which he may be able to gradually increase to 30+ with the assistance of specialised employment services, including post placement support and workplace modifications as required.  Sam reported that he feels capable of working around 4 days a week and of performing 8 hour shifts, however, as his doctor pointed out, there is no evidence to suggest he can manage this, or in fact that he can’t.  Sam is extremely keen to find work.

35.     The SSAT reasons for decision contains a summary of the evidence Mr Hobbs gave including that:

…he has only worked for about two hours as what he called a ‘maitre-d’ about once each week and never full time or for the hours stated in the documents…and his legs and hips feel weak which limits his standing tolerance to about 30 minutes. 

In his October 2008 application to the SSAT, Mr Hobbs wrote that he believed the Centrelink decision to be incorrect as I didn’t explain myself to the J.C.A. in my interview and she took it on board in the wrong manor (sic).  In his application for review of the SSAT decision to this Tribunal, he gave as his reasons because I can’t work many hours.  I get really tired easier (sic).  In his May 2005 claim to Centrelink, Mr Hobbs noted he needed help to read and write, had problems with concentration, and had difficulties using public transport because of his short stature.

36.     It is difficult to evaluate the conflicting material available to me about Mr Hobbs’s work capacity.  It would be speculative to try to explain these conflicts, although there are hints of possible explanations in the documents before me, including the possibility that his desire to work may have influenced some assessors.  The SSAT found that Mr Hobbs’s disabilities attracted an impairment rating of less than 20 points and thus the SSAT did not turn its mind to his work capacity and the discrepancies between what Mr Hobbs told the SSAT and what two JCAs wrote about his past employment history.

37.     I do not sense any attempt by Mr Hobbs to exaggerate his physical disabilities.  His evidence in regard to pain and tiredness greatly limiting the hours of any work is consistent with the descriptions of his physical problems provided by Drs White and Savadirayan in 2008 and 2007 respectively.  His difficulty as now described is also consistent with the assessment made by Dr Cheung in 2005.  Given the nature of this genetic condition and its complications and given the absence of any doctor’s report suggesting that Mr Hobbs had improved physically between 2005 and 2008, I am very unwilling to accept the JCA report of 7 August 2008 wherein it is stated client has continued to receive treatment, physical capacity has improved.

38.     Thus on balance I am inclined to prefer Mr Hobbs’s own assessment of his work capacity as stated to the SSAT, over those of the three JCAs who provided reports.  In my view, the assessments to date of Mr Hobbs’s possible intellectual, learning and reading disabilities have been superficial.  In this regard, the following advice contained in paragraph 4 of the Introduction to the Impairment Tables is very relevant:

Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating.  In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged. 

Given Mr Hobbs’s short stature and his serious physical limitations, his capacity in these intellectual areas will be a crucial factor in determining if he can learn the skills necessary for sedentary employment.

FINDINGS OF FACT

39. There is no disagreement amongst the medical practitioners who have provided reports regarding Mr Hobbs as to the underlying medical problem. Based on the above evidence, I am satisfied that at the time of his claim, Mr Hobbs suffered from a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act. The relevant condition (achondroplasia and its complications, which include painful degenerative problems in the lower back and hips, past surgery at the base of the skull, past surgical treatment for hydrocephalus, a chronically dislocated left head of radius, deafness and learning difficulties) has been fully investigated, treated and stabilised and is likely to continue for at least two years. Therefore, this condition is permanent and assessable under the Impairment Tables.

40.     For the reasons explained above, I am unable to be satisfied that the impairment assessment for Mr Hobbs’s condition has been made in conformity with the Impairment Tables.  

41.     I am unable to satisfactorily resolve the competing contentions about Mr Hobbs’s capacity to work without better information about his various functional disabilities.  If I were to decide that aspect now, I would be inclined to accept Mr Hobbs’s contention.  However, I believe that it is preferable that this matter be remitted to the Respondent to be assessed after the additional medical reports as outlined below become available.  

42.     Thus, rather than decide Mr Hobbs’s entitlement to DSP, I have determined that the preferred decision is to set aside the original decision and remit the matter to the Respondent with the following recommendations: that Centrelink obtain further medical reports about (a) the nature, diagnosis and degree of any intellectual or literacy disabilities from which Mr Hobbs may suffer, and (b) the natural history and likely progression of any of Mr Hobbs’s disabilities.

43.     I do not suggest that the Respondent arrange or fund the obtaining of this additional information.  Instead, I recommend that Centrelink provide a letter outlining what is required to Mr Hobbs to take to the two clinics (genetics and orthopaedics) that he attends at the Royal Children’s Hospital; and that those treating doctors be asked to respond and to arrange for the assessment of any intellectual or literacy disabilities.  I also recommend that a copy of the letter be sent directly to Dr White at Genetic Health Services Victoria, and to the Director/Head of the Orthopaedic Clinic at the Royal Children’s Hospital, Melbourne.  Finally, I recommend that Centrelink attach a copy of these reasons for decision to all copies of the letter sent to Mr Hobbs and the staff at the Royal Children’s Hospital.

DECISION

44.     The Tribunal sets aside the decision under review and remits the matter to the Respondent for reconsideration according to the recommendations contained in these Reasons for Decision.

I certify that the forty‑four [44] preceding paragraphs are a true copy of the reasons for the decision herein of

Dr Kerry Breen, Member

Signed: Olympia Sarrinikolaou

Clerk

Dates of Hearing  10 August 2009, 2 November 2009

Date of Decision  27 November 2009
Advocate for the Applicant          Self-represented
Advocate for the Respondent       Ms Kayren Paul, Centrelink Legal Services Branch