Saunders and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2008] AATA 456 (2 June 2008)

Last Updated: 3 June 2008

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 456

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/1359

GENERAL ADMINISTRATIVE DIVISION		)
	Re		IAN SAUNDERS

Applicant

And

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

Respondent

DECISION

Tribunal

Dr K Breen, Member

Date 2 June 2008

Place Melbourne

Decision

In accordance with s 42D of the Administrative Appeals Tribunal Act 1975, the Tribunal remits the matter to the Respondent for the obtaining of further medical evidence and further consideration of the medical evidence, if appropriate.

(sgd) Dr K Breen
Member

SOCIAL SECURITY - disability support pension – bilateral degenerative knee condition – dyslexia – memory impairment – remitted for expert neuro-psychiatric assessment.

Social Security Act 1991 s 94(1)

Social Security (Administration) Act 1999 Schedule 2, sub-clause 4(1)

Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48

REASONS FOR DECISION

2 June 2008

Dr Kerry Breen, Member

1. Mr Ian Saunders, now 39 years old, lodged a claim for disability support pension (DSP) on 20 October 2006 with Centrelink. Centrelink is the service delivery agency for the Department of Families, Housing, Community Services and Indigenous Affairs. The claim was accompanied by a treating doctors’ report (TDR) which listed two medical conditions, chronic work-related bilateral knee pain and diabetes mellitus. The claim was rejected by a Centrelink officer on 4 December 2006 on the grounds that a Job Capacity Assessor (JCA) had determined that Mr Saunders’ medical conditions were temporary and that Mr Saunders had a current capacity to work thirty plus hours per week. That decision was affirmed by an Authorised Review Officer (ARO) on 29 December 2006. However, the ARO based the decision on different grounds, viz that the two medical conditions are permanent and optimally treated but that they attracted only ten impairment points under the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Impairment Tables) in Schedule 1B of the Social Security Act 1991 (the Act).
2. Mr Saunders sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). On 23 March 2007 the SSAT affirmed the Centrelink decision and based its decision primarily on its agreement with the ARO’s awarding of ten impairment points for Mr Saunders’ bilateral knee condition. At the SSAT hearing, Mr Saunders provided new material, a report dated 30 October 2001 on his condition of dyslexia. The SSAT considered this material but decided that his dyslexia attracted nil impairment points under Table 9 of the Impairment Tables.
3. Mr Saunders then sought review of the SSAT decision by this Tribunal. He provided an updated TDR from his medical practitioner, Dr M D’Souza. The updated report referred to his knee disability and to impaired neurological functioning. Centrelink then arranged for Mr Saunders to be assessed by Dr Stuart Turnbull an occupational physician. This took place on 24 October 2007. In his report, Dr Turnbull stated that he assessed Mr Saunders as suffering from the following medical conditions: bilateral knee condition, dyslexia, non-insulin dependent diabetes and hypertension. His report was silent on the issue of whether each medical condition had been fully diagnosed, treated and stabilised. He awarded nil impairment points for the knee condition, ten points for mild impairment of memory function, nil points for intellectual disability and nil points for diabetes and hypertension.
4. Mr Saunders bases his appeal on his belief that:

my full conditions were not taken account of (bilateral knee pain and my reading and writing problems)

5. The respondent contends that the correct decision is to not award DSP and bases its contention partly on the report of Dr Turnbull, partly on a review by a JCA on 21 November 2007 and partly on written remarks of Dr D’Souza dated 20 February 2007, where he stated that:

Mr Saunders is fit to do non-manual work and clerical duties if available.

THE ISSUES

6. The issues before me therefore are:
   • Does Mr Saunders 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?
7. The relevant assessment period is from 20 October 2006 and the subsequent 13 weeks.

THE RELEVANT LEGISLATION

8. The relevant legislation includes s 94(1) of the Act, the Impairment Tables contained in Schedule 1B the Act and Schedule 2, sub-clause 4 of the Social Security (Administration) Act 1999 (the Administration Act).
9. Section 94 of the Act provides:

94(1) A person is qualified for disability support pension if:

(a) the person has a physical, intellectual or psychiatric impairment; and

(b) the person’s impairment is of 20 points or more under the Impairment Tables; and

(c) one of the following applies:

(i) the person has a continuing inability to work;
...

10. The Introduction to the Impairment Tables in Schedule 1B of the Act provides as follows:

...

4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence, Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. In particular where the nature or severity of a psychiatric (or intellectual) disorder is unclear appropriate investigation should be arranged.

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

...

DOES MR SAUNDERS SUFFER FROM ANY PERMANENT MEDICAL CONDITIONS?

Bilateral degenerative knee condition

11. The medical evidence is clear that Mr Saunders suffers from degenerative arthritis of both knees. He describes daily pain in both knees which limits his capacity for many tasks. He stated that he is capable of walking up to 500 metres on flat ground but has some difficulty with stairs. He has had to give up tasks such as mowing the lawn and is unable to play with his children. He stated that he can remain on his feet for approximately 20-30 minutes and then needs to be seated to rest. He has been told that nothing more can be done to improve his knee condition other than to have bilateral knee replacement surgery. He has been advised by an orthopaedic surgeon that in view of his relatively young age, this surgery should be delayed as long as possible.
12. I was not provided with a report from his orthopaedic surgeon, Dr Peter Moran but a detailed report of Dr D’Souza, dated 18 February 2002, quotes the advice he had received from Dr Moran. This report outlines the record of work- related injuries to both knees in 1998 and of arthroscopic surgery to both knees undertaken by Dr Moran in November 1988, further arthroscopic surgery to the left knee in February 2000 and again in August 2001. The diagnosis of his knee condition is also supported by the report of Dr Turnbull which describes Mr Saunders:

as a 39-year old man with meniscal injuries to both knees and consequent arthritis.

13. Although Dr Turnbull did not specifically address the issue of meeting the requirement that the bilateral knee condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised, he is an experienced assessor and thus for him to proceed to award an impairment rating, I accept that this criteria has been addressed. Dr D’Souza’s two reports (the first dated 31 July 2007 and the second dated 19 December 2007) provide further evidence that the bilateral knee condition is one which has been fully documented and investigated, treated and stabilised. On 31 July 2007 Dr D’Souza wrote:

Mr Ian Saunders suffers from a permanent physical disability affecting both knees as stated in my attached medical report from Feb 2002. He is reluctant to undergo extensive knee surgery which may involve bilateral knee replacements because of his age. His chronic bilateral knee pain has persisted since 2002.

In the second letter of 19 December 2007, Dr D’Souza wrote:

Ian Saunders suffers from a permanent physical disability affecting both his knees... He has not completed the full process of appropriate medical investigations and further treatment... Further MRI scans of both knees and a review by Mr Peter Moran, an orthopaedic surgeon, would be useful, before concluding that nothing further could be done to improve the condition/functioning of Mr Saunders’ knees.

14. In light of Dr D’Souza’s reports, it is necessary that I consider carefully whether Mr Saunders’ bilateral knee condition has been treated and stabilised in a manner which conforms with the legislative requirements under s 94(1)(a) of the Act, the requirements of the Impairment Tables and of the Administration Act.
15. Paragraph 6 of the Introduction to the Impairment Tables reads as follows

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;
• and whether any further reasonable treatment is likely to lead to significant functional improvement within the next two years.

The paragraph then defines reasonable treatment as

treatment that is feasible and accessible ie available locally and at a reasonable cost; where 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 a low risk to the patient...In those cases where significant functional improvement is not expected or where there is a medical or other compelling reason for not undertaking further treatment, it may be reasonable to consider the condition stabilised.

16. The reports of Dr D’Souza strongly indicate that Mr Saunders may, and almost certainly will, come to bilateral knee replacement surgery some time in the future. It is also clear from Dr D’Souza’s reports (and in particular his earlier report from 2002 wherein he refers to the orthopaedic advice) that such surgery was not an option which was open to consideration in the two years following the DSP application on 20 October 2006. Dr Turnbull did not express an opinion on this issue but his report is written in a manner which indicates that he accepted Mr Saunders’ account of the advice he had been given by an orthopaedic surgeon. Mr Saunders’ evidence before me also was that such surgery was still several years away. His evidence was that he had been advised by the orthopaedic surgeon to defer surgery for as long as possible as artificial knee replacements cannot be guaranteed to last and he is only 39 years old. While awaiting such surgery, the disability from his knees is only likely to slowly worsen. In my view this is not a situation where Mr Saunders has refused or is unable to afford the next step in treatment. Thus I am satisfied that it was reasonable of Dr Turnbull to proceed to rate the disability impairment due to the knee condition on the basis that it had been reasonably treated and was stabilised.

Dyslexia

17. There is evidence before me to support the diagnosis of dyslexia. Mr Saunders gave evidence, supported by the evidence of his wife, that he has never been able to learn to read or write and that his ability in this regard is akin to that of a five year old. His wife informed me that he is unable to remember things by making a written list and instead draws pictures to remind himself of things to be done. His account of his schooling and his employment record in jobs, where he was not required to be able to read or write, and of his more recent difficulties in learning at a course to acquire a certificate for aged care (he gave evidence that he has been taken out of a group class as he required one on one special tuition) is consistent with a severe learning disability. He describes difficulty in reading street signs and is reluctant to drive a motor vehicle partly because of this disability.
18. In addition, he provided a detailed written report from Ms Rosalie Collie, Director of the Dyslexia Assessment and Educational Centre in Chadstone, dated 30 October 2001. Ms Collie’s professional qualifications were not included in this report. Her conclusion states that:

Ian appears to present with a severe auditory/verbal processing problem. Auditory/verbal processing skills often have an impact on receptive/expressive language skills and recall may be limited once Ian encounters a long or complex sentence. Ian’s visual problem solving skills are stronger.

19. It appears to me that those health professionals who have assessed Mr Saunders have accepted the diagnosis of dyslexia based on the above evidence and have also accepted that Mr Saunders’ memory difficulty is part of the same disability. Mr Saunders stated that he had never been referred for specialist assessment of his memory and reading and writing difficulties by his general practitioner. He also stated that he thought that his general practitioner had not seen the report of Ms Collie.
20. Based on the above evidence, I accept that Mr Saunders does suffer from a severe disability in reading and writing consistent with dyslexia. However, I find it somewhat unsatisfactory that the degree of this disability and whether it is the cause of, or linked to, his memory problem has not been independently assessed by an appropriate specialist. I note that in his letter to Ms Paul of the Legal services Branch, dated 31 July 2007, Dr D’Souza commented that the neurological and IQ impairment score could be verified by a neuropsychologist. Dr Turnbull commented that Mr Saunders has dyslexia and a short term memory problem. As is addressed below, Dr Turnbull appeared to assess these as two separate disabilities.
21. The diagnoses of his other medical conditions of diabetes and hypertension are supported by the reports of his general practitioner and the medications he is receiving. Both conditions are stable, well controlled and deemed by Dr D’Souza and Dr Turnbull as not contributing to any disability.
22. From all of the foregoing, I am satisfied that at the time of his claim, Mr Saunders suffered from a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act. The relevant conditions (bilateral knee condition, dyslexia with a memory difficulty, non-insulin dependent diabetes and hypertension) had been fully investigated, treated and stabilised and were likely to continue for at least two years. Therefore, these conditions are permanent and assessable under the Impairment Tables.

WHAT IMPAIRMENT RATINGS DO HIS CONDITIONS ATTRACT?

Bilateral degenerative knee condition

23. I had before me two medical assessments of the impairment caused by this condition. It is clear from his detailed report that Dr Turnbull has fulfilled the requirement of paragraph 4 of the Introduction to the Impairment Tables which states: A rating is only to be assigned after a comprehensive history and examination. Using Table 4, Function of the Lower Limb, Dr Turnbull concluded that Mr Saunders attracts a nil rating as he walked without difficulty a distance of 500 metres and was able to use stairs without difficulty. Dr D’Souza, when invited by Centrelink to rate Mr Saunders, stated in his letter of 31 July 2007, under the impairment scale Mr Saunders would score 10 for his knee disability. Dr D’Souza did not elaborate on the reasons for this rating. Furthermore in the TDR prepared by Dr D’Souza on 10 October 2006, in answer to question H which asked: Provide details about how this condition currently affects the patient’s ability to function, Dr D’Souza responded chronic bilateral knee pain. In his evidence to the Tribunal, Mr Saunders agreed that he had told Dr Turnbull that he could walk 500 metres. In the absence of any other medical assessment of impairment and as Dr D’Souza did not adequately address the degree of impairment, I accept Dr Turnbull’s assessment of nil points of the impairment caused by Mr Saunders’ bilateral knee condition.
24. I note that the ARO awarded ten impairment points for the knee condition. I also note in the ARO’s Notes (T17, page 62) prepared on 29 December 2006, the ARO wrote:

From the information provided by the customer in relation to his functional ability, I consider that an impairment rating of 10 points for the bilateral knee pain should be assigned.

Such an approach to the assigning of an impairment rating by an ARO is outside the legislative framework and in particular, not consistent with the Introduction to the Impairment Tables in Schedule 1B of the Act which provides as follows:

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.

At the time of the ARO’s consideration of this matter, Mr Saunders was yet to be seen by Dr Turnbull. It is not clear whether the ARO had had regard to the TDR from Dr D’Souza. As already mentioned above, this report makes no useful comment in answer to a question regarding how this condition currently affects the patient’s capacity to function?

25. I am fortified in my view in regard to the legitimacy of an ARO awarding impairment points based on anything other than a report from a medical practitioner who has completed a comprehensive history and examination by a recent decision by the Federal Court. In Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48 at paragraph 38, Gyles, Stone and Buchanan JJ noted;

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 circumstance identified in the Introduction.

I therefore cannot accept the impairment rating proffered by the ARO. I recognise that Mr Saunders is perplexed by a process that seems to him to give and take impairment points at will, but I must follow the law and seek to make the correct decision based on the evidence before me.

Dyslexia/reading and writing and memory disability.

26. Dr Turnbull and Dr D’Souza have turned their minds to the degree of disability this collection of problems causes Mr Saunders. Dr D’Souza wrote on 31 July that Mr Saunders suffers from:

an intellectual disability with a diminished capacity of neurological function and opined that he would award 10 (points) for the impaired neurological functioning and probably 6 for intelligence IQ.

He did not identify the relevant tables he had applied, nor provide any reasons for the points awarded and thus his evidence in this regard is unsatisfactory.

27. Dr Turnbull took a detailed educational and occupational history from Mr Saunders and had access to the report of Ms Collie re the severe auditory/verbal processing problem. Although I have expressed some dissatisfaction above with the degree of specialist attention Mr Saunders learning difficulties have received, I am satisfied that Dr Turnbull’s assessment meets the requirements of paragraphs 4 and 5 of the Introduction to the Impairment Tables. I accept that he has established a working diagnosis on the best available evidence and that the condition of dyslexia is permanent. Dr Turnbull applied Table 8 Neurological Function: Memory, Problem solving, Decision Making Abilities and Comprehension and stated:

I find that he attracts ten points. There is demonstrated mild impairment of memory. He learns at a slower rate than normal; however the impairment has little impact on everyday living. I note the patient was able to travel independently by public transport to the medical examination.

28. Dr Turnbull then applied Table 10 Intellectual Disability and wrote:

intelligence was not measured; however adaptive behaviour score was zero and with regard to capacity for independent living the patient is self sufficient and therefore the score is also zero, so the rating for intellectual disability would be zero.

29. Dr Turnbull was not called to give evidence and in his report he does not explain his reason for selecting Table 10. I observe that dyslexia is commonly referred to as a learning disability and not an intellectual disability. There appears to be no Table developed which is designed to specifically cover the disability which is part of dyslexia. However, Table 9 headed Communication Function – Receptive and Expressive Language Competency may have been more appropriately used for the disability created by Mr Saunders’ severe auditory/verbal processing problem. I note that Table 9 surprisingly moves from nil impairment points on the basis of satisfactory or only minor difficulties with communication directly to 15 impairment points on the basis of difficulties with unfamiliar, lengthy or complex verbal situations and unable to adapt or manage interruption but competent communication in favourable settings. Could work in a wide range of occupations but high public contact and high communication jobs may be too demanding.
30. In my view, a rigid interpretation of the criteria provided in the Impairment Tables is likely to disadvantage some applicants for DSP. Mr Saunders may be one such applicant, as it is not easy to recognise within the Tables criteria that could readily be applied to the disability created by a severe auditory/verbal processing problem.
31. In the absence of a specialist report which addresses the issues identified below, I am not prepared to accept the impairment ratings awarded by either Dr D’Souza or Dr Turnbull for the problems of dyslexia and memory. I therefore direct that the matter be remitted to the respondent for further specialist assessment by a neuro-psychiatrist in relation to:
    • (a) confirmation of the diagnosis of dyslexia and an assessment of the severity of any disability associated with this condition;
    • (b) an assessment of the problem of memory difficulty and in particular whether this is part of his severe auditory/verbal processing problem or is a separate condition; and
    • (c) advice on the impact of these problems on Mr Saunders capacity to work and/or to be retrained for work. It should be noted that the neuro-psychiatrist may need to have Mr Saunders assessed by a neuro-psychologist.
32. As some time might reasonably elapse between now and the fulfilment of this direction, it may be desirable that a written report be obtained from Mr Saunders’ orthopaedic surgeon as to the prognosis of his bilateral knee condition and any recommendation as at October 2006, as to the reasonableness of his undergoing or not undergoing knee replacement surgery. However, I do not make a direction in this regard.
33. In making the direction in paragraph 31 above, I wish to draw the attention of Mr Saunders to the fact that at a resumed hearing, should his conditions be rated at 20 impairment points or more, I will still need to consider the third “hurdle” he has to overcome (his continuing inability to work) under the legislation. This will involve my examining his past work record, the evidence of Dr D’Souza about his capacity to work, the two assessments made by the Job Capacity Assessor, Mr Saunders own evidence in regard to the types of work he has recently sought and the retraining he is undertaking, the evidence already outlined above in regard to any impairment relating to his diagnosed and accepted conditions and the additional reports as requested.
34. In accordance with s 42D of the Administrative Appeals Tribunal Act 1975, I remit the matter to the respondent with the direction that an independent expert neuro-psychiatric or other relevant specialist medical opinion be obtained in regard to the matters listed in paragraph 31 above. The expert is to be provided with a copy of this document, a copy of Dr Turnbull’s report of his assessment made on 24 October 2007 and a copy of the Impairment Tables.

I certify that the thirty-four (34) preceding paragraphs are a true copy of the reasons for the decision herein of Dr K Breen, Member

(sgd) Mara Putnis

Clerk

Date of Hearing: 9 April 2008

Date of Decision: 2 June 2008

Advocate for the Applicant: Self-represented

Advocate for the Respondent: Ms Kayren Paul, Centrelink