Editors --- "Disability support pension: use of Impairment Tables; insufficient evidence about impact on function and continuing inability to work" [2010] SocSecRpr 2; (2010) 12(1) Social Security Reporter, Article 2

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Disability support pension: use of Impairment Tables; insufficient evidence about impact on function and continuing inability to work

HOBBS and SECRETARY TO THE DFHCSIA

(2009/917)

Decided: 27th November 2009 by K. Breen

Background

Hobbs, at 21 years of age, was granted disability support pension (DSP) from 20 May 2005. In 2007 Centrelink reviewed his entitlement and obtained treating doctors’ reports (TDRs) from Dr Savadirayan dated 28 August 2007 and from Dr White dated 25 July 2008. Centrelink also obtained a job capacity assessment (JCA) dated 7 August 2008. On 13 August 2008 Centrelink decided to cancel Hobbs' DSP.

A letter from Scope Employment Futures, Mount Waverley in August 2008 to Centrelink, on Hobbs’ behalf resulted in a second JCA report on 12 September 2008. The decision to cancel DSP was affirmed by Centrelink on 16 September 2008. An authorised review officer from Centrelink affirmed the decision on 16 October 2008 and Hobbs sought review of the decision by the Social Security Appeals Tribunal (SSAT) which also affirmed the decision.

Hobbs was born with the genetically determined disability of achondroplasia (a cause of dwarfism). Hobbs contended that his disabilities were such that, despite a desire to work, he was not capable of more than a few hours work per week.

The Department contended that Hobbs did 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 Department also contended that he did not have a continuing inability to work within the meaning of s.94 of the Act, and that for these reasons Hobbs was not eligible to receive the DSP.

Issues

The issues considered by the AAT were:

• Whether Hobbs suffered from any permanent medical conditions

• The impairment ratings his conditions attracted

• Whether the total impairment rating was 20 points or more, and if so, what the impact of these conditions were on his capacity to work.

The law and considerations

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

The diagnosis from Hobbs’ treating doctors was achondroplasia and its complications.

The TDR dated 25 July 2008 by Dr White of Genetic Health Services Victoria, Royal Children’s Hospital, indicated that Hobbs ‘attends the genetics clinic at Royal Children’s Hospital every 6-12 mths & orthopaedics also’. The AAT noted that neither party provided the Tribunal with a report regarding the orthopaedic elements of Hobbs’ disability.

Dr White also wrote:

Hobbs 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...

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.

Dr White identified past treatment as including hip surgery, VP shunt and foramen magnum surgery and noted in relation to his ability to function:

Hobbs 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...

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.

Dr Savadirayan of the Royal Children’s Hospital in May 2005 reported decreased exercise tolerance, painful hips and lower back, and decreased gross motor function. In his 2007 TDR Dr Savadirayan 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 Hobbs would have been six years old.

Dr Cheung of Health Services Australia (HSA) assessed Hobbs on 7 June 2005 and recorded surgery on legs, hips, eye/ ear, neck, spine due to painful joints. He noted the use of two pain-killing drugs, Kapanol and Panadeine Forte. Dr Cheung described Hobbs' impairment as permanent and attracting 20 impairment points under Table 4 of the Impairment Tables:

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 distance 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.

The two JCA reports in August and September 2008 contained some additional medical information provided by Dr White by telephone and by Hobbs at interview. Hobbs informed the JCA of:

...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).

The JCA 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.

The AAT considered the evidence regarding Hobbs’ medical conditions as unsatisfactory for a decision maker to decide the matter fairly. It noted that although Hobbs attended 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. The AAT considered that a significant proportion of the physical difficulties experienced by Hobbs were in the field of orthopaedics, yet no report was available from a specialist in that area.

The AAT also noted references to learning difficulties in Dr White’s report however no formal assessment of intellectual capacities was available, despite the existence of an underlying condition (hydrocephalus treated surgically in early childhood) with the potential to adversely affect intellectual functioning. Hobbs’ condition had been present from birth and common sense suggested that his physical disabilities were unlikely to improve and were more likely to deteriorate, and yet the reports provided to the AAT suggested that improvement in some areas could be expected. There were also questions about Hobbs’ literacy and his decision-making capacity.

The AAT noted that the degree of impairment Hobbs experienced and the assessment of this using the various Impairment Tables were the subject of disagreement.

In 2005, Dr Cheung (HSA) chose to use Impairment Table 4 (Function of the Lower Limbs) to rate Hobbs’ disability and gave a permanent impairment rating of 20 points. In the JCA report of 7 August 2008, the JCA chose Impairment Table 20 (Miscellaneous) and assessed Hobbs’ 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’.

The Department submitted that under Table 20, no impairment rating was justified. It was also argued that ‘it is more appropriate to rate each part or organ, which is individually affected, under the relevant tables’. The Department contended that the occurrence of back pain when walking long distances was a result of weakness in Hobbs’ lower limbs and therefore should be assessed under Table 4 and that the medical evidence justified a nil assessment under Table 4. The Department also contended that the medical evidence supported an assessment of 5 points under Table 3 for the non-dominant upper limb condition.

The AAT noted that the appropriate use of the Impairment Tables was very relevant to Hobbs’ claim and referred to the Introduction to the Impairment Tables:

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?’

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

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

The AAT considered that the above guidance suggested 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 Hobbs’ achondroplasia. The use of Table 3 (Upper Limb Function) in relation to the chronically dislocated left head of radius (elbow) was also correct. It was less clear which Table should be used in assessing any of the other impairments as a result of the achondroplasia.

The JCA in September 2008 chose Table 20 (Miscellaneous) to assess achondroplasia in a global sense and emphasised Hobbs’ various surgeries, his learning difficulties and his decision-making difficulties but did not consider 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 was not open without recourse to formal measurement of intellectual ability.

The AAT considered that the difficulties in applying the Impairment Tables had been caused by the failure to observe the essential introductory guidance. The appropriate impairment ratings and the relevant Impairment Tables to apply should become clearer if or when the nature of Hobbs’ problems with learning, memory, concentration and decision making were more accurately diagnosed; and when the nature of the physical problems leading to chronic lower back pain, tiredness and limited walking and standing capacity were clarified by an orthopaedic report.

The material available to the AAT about Hobbs’ work capacity included his application forms, his evidence to the SSAT, the opinions expressed in the TDRs and the JCA reports.

There were clear statements in some of these documents that Hobbs was very keen to be employed. However, the AAT noted that, as admirable a sentiment as that may be, sentiment must play no part in any objective decision about his actual capacity for work.

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.

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 listed achondroplasia as a condition impacting on Hobbs’ ability to function but did not complete any other sections of that form.

In 2008 Dr White reported on Hobbs’ impact on ability to function as follows:

Hobbs needs modification of surroundings due to his achondroplasia. He cannot walk for very long distances. He may need repeti tion of instructions due to difficulties with comprehension.

In August 2008, the two JCAs, both registered occupational therapists, working together concluded that Hobbs had ‘an assessed full time work capacity...of 30+ hours per week’ and was best suited to Disability Employment Network. Their report made no mention of possible learning difficulties. Hobbs was 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.

This JCA report referred 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.

A month later, a further JCA whose professional discipline was given as other, assessed Hobbs’ 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...

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.

The SSAT reasons for decision contained a summary of the evidence 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 application to the SSAT, Hobbs wrote that he believed the Centrelink decision to be incorrect as ‘I didn’t explain myself to the JCA in my interview and she took it on board in the wrong manor’ (sic).

In his application for review of the SSAT decision to the AAT, 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, Hobbs noted he needed help to read and write, had problems with concentration, and had difficulties using public transport because of his short stature.

The AAT noted that it was difficult to evaluate the conflicting material available about Hobbs’ work capacity and that it would be speculative to try to explain these conflicts, although there were hints of possible explanations in the documents before it, including the possibility that his desire to work may have influenced some assessors.

The AAT did not consider that there was any attempt by Hobbs to exaggerate his physical disabilities. His evidence in regard to pain and tiredness greatly limiting the hours of any work was consistent with the descriptions of his physical problems provided by Drs White and Savadirayan in 2008 and 2007. His diffi-culty as now described was also consistent with the assessment made by Dr Cheung in 2005. Given the nature of his genetic condition and its complications and the absence of any doctor’s report suggesting that Hobbs had improved physically between 2005 and 2008, the AAT was very unwilling to accept the JCA report of 7 August 2008 which stated that the ‘client has continued to receive treatment, physical capacity has improved’.

On balance the AAT was inclined to prefer Hobbs’ own assessment of his work capacity as stated to the SSAT, over those of the three JCAs, as it considered that those assessments of Hobbs’ possible intellectual, learning and reading disabilities had been superficial. The AAT noted paragraph 4 of the Introduction to the Impairment Tables as being 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 Hobbs’ short stature and his serious physical limitations, his capacity in these intellectual areas would be a crucial factor in determining if he could learn the skills necessary for sedentary employment.

Findings of fact

There was no disagreement amongst the medical practitioners who provided reports as to the underlying medical problem. Based on the evidence the AAT was satisfied that at the time of his claim, 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 included 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) had been fully investigated, treated and stabilised and was likely to continue for at least two years. Therefore, this condition was permanent and assessable under the Impairment

Tables.

For the reasons outlined earlier the AAT was unable to be satisfied that the impairment assessment for Hobbs condition had been made in conformity with the Impairment Tables. The AAT was unable to satisfactorily resolve the competing contentions about Hobbs’ capacity to work without better information about his various functional disabilities and considered it was preferable that this matter be remitted to the Department to be assessed after additional medical reports became available.

The AAT determined that the preferred decision was to set aside the original decision and remit the matter to the Department with the recommendation that Centrelink obtain further medical reports about:

• the nature, diagnosis and degree of any intellectual or literacy disabilities from which Hobbs may suffer, and

• the natural history and likely progression of any of Hobbs’ disabilities.

The AAT suggested that Centrelink provide a letter for Hobbs to take to the two clinics (genetics and orthopaedics) that he attended at the Royal Children’s Hospital outlining what was required; and that those treating doctors be asked to respond and to arrange for the assessment of any intellectual or literacy disabilities. The AAT recommended 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.

The AAT also recommended that Centrelink attach a copy of its Reasons to all copies of the letter sent to Hobbs and the staff at the Royal Children’s Hospital.

Formal decision

The Tribunal set aside the decision under review and remitted the matter to the Respondent for reconsideration according to the recommendations contained in its Reasons.[S.P.]