Editors --- "Disability support pension: whether condition fully investigated, treated and stabilised" [2007] SocSecRpr 53; (2007) 9(4) Social Security Reporter, Article 11

• SECRETARY TO THE DEWR and HATTON
• Background
• Facts
• The law
• The issue
• Was the condition investigated?
• Was the condition treated and was the treatment reasonable?
• Had Hatton’s epilepsy stabilised?
• Other conditions
• Impairment rating and continuing inability to work
• Formal decision

---

Disability support pension: whether condition fully investigated, treated and stabilised

SECRETARY TO THE DEWR and HATTON

(2007/1631)

Decided: 7th August 2007 by R. Hunt

Background

Hatton claimed disability support pension. The SSAT set aside the decision made by a Centrelink officer rejecting the claim. The SSAT granted the pension from the date of claim, and the Secretary appealed that decision to the AAT.

Facts

Hatton gave evidence that he first experienced a seizure at work in December 2004. After this he suffered headaches and was treated for epilepsy. He trialled numerous medications under his specialist’s care, some of which produced significant side effects. The medication that he was currently taking did not have as many side effects and he had not experienced a grand mal seizure since taking it. He did not believe that his condition would improve - he experienced a seizure at least once a day and longer seizures approximately once or twice a week. He also had bowel trouble and needed to be near a toilet. While his headaches wireless severe, they were still persistent. He believed these symptoms prevented him from working.

The medical evidence presented to the AAT confirmed the difficulty in managing his condition. The consultant neurologist gave evidence that Hatton was appropriately managed and that his current treatment had achieved reasonable control of his condition. He agreed that there might be something that could be done in the future to improve Hatton’s condition stating that ‘while there are always more options, changes in his medication were not likely, at this point, to produce any material improvement in his seizure control...’ (Reasons, para. 35).

The law

The qualification requirements for disability support pension are set out in section 94 of the Social Security Act 1991 ( the Act) and relevantly require a person’s impairment to have a rating under the Impairment Tables in Schedule 1B of the Act, of at least 20 points. However, the Introduction to the Impairment Tables requires a condition to be a ‘fully documented, diagnosed condition which has been investigated, treated and stabilised’ in order for it to be assigned an impairment rating. The Introduction includes the following:

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 i.e., 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.

The issue

The main issue related to the management of Hatton’s epilepsy and whether the condition had been investigated, treated and stabilised.

Was the condition investigated?

The Tribunal found that the condition had been investigated based on the dictionary meaning of this term and its ordinary meaning. The Tribunal saw no reason to look beyond the ordinary meaning because the Introduction to the Impairment Tables is written in plain language. The Tribunal noted that Hatton’s doctors had been systematic in trying various treatments and disagreed with the Department’s suggestion that a more exact investigation was required. Whilst Hatton’s specialist had indicated that further investigation would occur, this in itself did not mean that his condition had not been investigated at the time of his application.

Was the condition treated and was the treatment reasonable?

One of the issues raised in Hatton’s case, was that when he made his application, his condition had improved and there was potential for further improvement. Both Hatton and his specialist stated that treatment should continue for 12 months before any further experimentation with other treatment was trialled.

The Tribunal noted various decisions that a person’s failure to follow treatment recommendations can preclude a finding that the condition has been treated. However in this case Hatton had accepted his doctors’ advice, and he had received treatment despite changes that were required to deal with side effects.

The Tribunal referred to paragraph 6 of the Introduction and considered whether any further ‘reasonable medical treatment’ was ‘likely’ to lead to ‘significant functional improvement within the next two years’. The Tribunal found that this was not the case and that Hatton’s condition had been recently treated. The Tribunal concluded that his epilepsy was an ongoing disability which would last for at least the next two years, if not longer. Any further investigation would be a ‘long and sustained process’. The Tribunal concluded that his treatment was feasible, accessible and reasonable in all the circumstances.

Had Hatton’s epilepsy stabilised?

The Tribunal noted that it was not necessary for the condition to be completely resolved or stabilised in order to meet the legislative requirements.

The Tribunal found that the issue of whether a condition is stabilised is a question of fact and a matter for medical opinion. Whilst Hatton displayed symptoms of epilepsy, the fluctuations in his symptoms were not such that his condition could be considered as not stabilised.

Was Hatton’s epilepsy permanent at the date of application?

The Tribunal found that the medical evidence substantiated that there was little chance of any significant functional improvement, with or without treatment, within the next two years. Consequently his condition was permanent at the date of claim.

Other conditions

The Tribunal concluded that the irritable bowel syndrome suffered by Hatton arose as a result of taking epilepsy medication, and that although this condition had improved it was still a permanent feature and side effect of Hatton’s epilepsy and treatment.

In relation to the headaches suffered by Hatton, the Tribunal accepted medical evidence that these were also a permanent side effect of the epilepsy treatment.

Impairment rating and continuing inability to work

The Tribunal found that the impairment rating for Hatton exceeded the required 20 points and that as a result of his medical conditions he had a continuing inability to work.

Formal decision

The AAT affirmed the decision of the SSAT that Hatton was entitled to receive disability support pension from the date of claim.

[R.P.]