FEDERAL COURT OF AUSTRALIA Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Taylor [2012] FCA 207 Citation: Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Taylor [2012] FCA 207 Appeal from: Taylor and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 321 Parties: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS v ALLAN TAYLOR File number: WAD 212 of 2011 Judge: SIOPIS J Date of judgment: 9 March 2012 Catchwords: SOCIAL SECURITY – whether the Administrative Appeals Tribunal erred in applying s 94(1)(b) of the Social Security Act 1991 (Cth) – the respondent developed osteomyelitis which led to the amputation of his leg below the knee - application of the Impairment Tables to the respondent's condition – whether the Tribunal had found that the respondent's condition had stabilised. Legislation: Administrative Appeals Tribunal Act 1975 (Cth) s 33(1)(c) Social Security Act 1991 (Cth) s 94(1)(b) Date of hearing: 22 November 2011 Date of last submissions: 8 December 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 29 Counsel for the Applicant: Mr RL Hooker Solicitor for the Applicant: Minter Ellison Lawyers Mr R Taylor appeared for the respondent. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 212 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant AND: ALLAN TAYLOR Respondent JUDGE: SIOPIS J DATE OF ORDER: 9 march 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1. The appeal is dismissed. 2. The applicant is to pay the disbursements of Mr Robert Taylor actually and reasonably incurred in the defence of this appeal. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 212 of 2011 ON APPEAL FROM THE ADMINISTRATIVE APPEALS TRIBUNAL BETWEEN: SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS Applicant AND: ALLAN TAYLOR Respondent JUDGE: SIOPIS J DATE: 9 march 2012 PLACE: PERTH REASONS FOR JUDGMENT 1 On 29 October 2009, the respondent, Mr Allan Taylor, applied to Centrelink for a disability support pension in respect of his left ankle osteomyelitis and, what was then anticipated, a below knee amputation. The amputation subsequently took place on 19 November 2009. On 23 December 2009, the claim for the disability support pension was rejected by a Centrelink officer on the basis that Mr Taylor's impairment arising from the amputation was not fully treated and stabilised. 2 On 25 January 2010, that decision was affirmed by a Centrelink authorised review officer, known as an ARO. On 23 March 2010, the Centrelink decision was affirmed by the Social Security Appeals Tribunal (the SSAT) on a merits review. The SSAT found that Mr Taylor's amputation still required rehabilitation and that this may take some months. The SSAT said that the condition was, therefore, not fully treated and stabilised at the time and could not be given an impairment rating under the Impairment Tables. It was necessary that an impairment rating of 20 points or more be made for Mr Taylor to qualify for the disability support pension for which he had applied. 3 Mr Taylor then sought a further merits review to the Administrative Appeals Tribunal (the Tribunal). 4 In its decision of 12 May 2011, the Tribunal set aside the decision of the SSAT and substituted a new decision that Mr Taylor was qualified for the disability support pension and had been qualified since 19 November 2009. 5 The applicant, the Secretary, appealed to this Court on a question of law against the decision of the Tribunal under s 44(1) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act). The question of law, as formulated by the Secretary, calls for the proper construction and application of s 94(1)(b) of the Social Security Act 1991 (Cth) in determining the qualification for a disability support pension. statutory background 6 Section 94 of the Social Security Act relevantly provides as follows: (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; … (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: … (a) in all cases - the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and (b) in all cases - either: (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or (ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years. (Original emphasis.) 7 The Impairment Tables referred to in s 94(1)(b) are set out in Sch 1B of the Social Security Act. The Impairment Tables relevantly provide 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 two 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 ie, 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. In exceptional circumstances, where a condition was considered not stabilised and a permanent impairment rating not assigned because reasonable treatment for a specific condition has not been undertaken, the assessor should: ▪ evaluate and document the probable outcome of treatment and the main risks and or side effects of the treatment; and ▪ indicate why this treatment is reasonable; and ▪ note the reasons why the person has chosen not to have treatment. … TABLE 4. FUNCTION OF THE LOWER LIMBS Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions. Rating Criteria NIL Walks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m. TEN Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting. TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or Unable to walk or stand but independently mobile using a self-propelled wheelchair. (Original emphasis.) the tribunal's decision 8 The Tribunal recorded that in around 2007, Mr Taylor moved to Darwin. The Tribunal stated that whilst in Darwin, Mr Taylor injured his left foot and ankle which resulted in septic arthritis and osteomyelitis despite a protracted hospital admission in Darwin and Mr Taylor undergoing full medical and surgical therapy. 9 The Tribunal went on to state that on 22 October 2009, Mr Taylor was transferred from the Royal Darwin Hospital to Fremantle Hospital via Geraldton Hospital, and that on 19 November 2009, Mr Taylor agreed to undergo a left below knee amputation on the advice of his treating specialist. 10 The Tribunal said that in March 2010, following his surgery, Mr Taylor was fitted with his artificial left leg prosthesis. The Tribunal recorded that Mr Taylor has had many ongoing issues in managing the prosthesis, including rubbing and chafing. It said that Mr Taylor had, also, been troubled with the fitting of the prosthesis owing to Mr Taylor having lost weight. 11 The Tribunal referred to the relevant medical evidence which comprised the treating doctor's report, completed by Dr Tagen Robertson. This report stated that Mr Taylor would require a wheelchair for mobilising, physical therapy, rehabilitation and amputee follow-up. 12 The Tribunal accepted Centrelink's submission that the relevant period for the determination of Mr Taylor's claim for a disability support pension was from 29 October 2009 to 28 January 2010. The Tribunal found that during this period, Mr Taylor transitioned from a hospital in-patient requiring medical and surgical treatment for osteomyelitis, to an amputee requiring ongoing support and rehabilitation following his below knee amputation on 19 November 2009. 13 It was common cause that by reason of the left below knee amputation on 19 November 2009, Mr Taylor had physical impairments within the meaning of s 94(1)(a) of the Social Security Act. 14 The Tribunal then considered whether Mr Taylor had an impairment of at least 20 points under the Impairment Tables for the purpose of s 94(1)(b) of the Social Security Act. 15 The Tribunal found that Impairment Table 4 was the relevant table to apply in the circumstances. The Tribunal, also, set out the relevant parts of the Impairment Tables which are set out at [7] above. 16 The Tribunal stated at [31] of its reasons, under the heading "Chronic osteomyelitis and left below knee amputation": The Tribunal accepts that when the applicant claimed for DSP on 29 October 2009 he was hospitalised in Darwin and undergoing treatment for significant bone infection of the left foot and ankle. Despite the applicant accepting and receiving standard medical care in hospital his clinical situation worsened and the applicant agreed to a left below knee amputation on 19 November 2009. It would be widely accepted that this type of surgery involving the loss of the leg below the knee is significant and carries with it a marked degree of personal and functional loss. However, this type of surgery is necessary when the standard forms of medical and surgical management have been explored but not resulted in a cure which can salvage the functioning leg. It is also widely accepted that recovery for the patient from this type of extensive surgical procedure takes time and intensive supports. These supports include clinical supports and emotional and social supports with a view to enabling the amputee the best possible return to independence. 17 I might add that the Tribunal member who delivered this decision is a qualified medical practitioner. 18 The Tribunal went on to find that over the relevant period Mr Taylor's condition of osteomyelitis leading to the left below knee amputation was "permanent" in that, at that time, it was apparent that Mr Taylor would suffer "significant ongoing functional sequelae from his below knee amputation". The Tribunal found that it was more likely than not that Mr Taylor would continue to suffer significant functional impairment for a period of more than two years. 19 The Tribunal found that Mr Taylor had undergone reasonable treatment for his osteomyelitis of the ankle. The Tribunal, also, found that Mr Taylor had demonstrated an ongoing commitment to functional rehabilitation following his amputation by his acceptance of using the artificial limb and attending Perth for refittings when he could. 20 The Tribunal accepted that Mr Taylor was learning to utilise his artificial limb. However, said the Tribunal, Mr Taylor had a continuing demonstrable loss of mobility, stability and balance as a result of his lower limb amputation. Mr Taylor is not able to climb, squat or kneel. The Tribunal considered Mr Taylor's impairment attracted an impairment rating of 20 points under Table 4 of the Impairment Tables. 21 Accordingly, said the Tribunal, Mr Taylor satisfied s 94(1)(b) of the Social Security Act. 22 The Tribunal went on to deal with s 94(1)(c) of the Social Security Act, but no issue arises therefrom in this proceeding. the appeal 23 The question of law which the Secretary formulated in this proceeding was: (a) Whether, on the proper construction of s 94(1)(b) of the Social Security Act 1991 (the Act) qualification for a disability support pension requires findings to be made that a person claiming an impairment of 20 points or more under the Impairment Tables of the Act has a condition which: (i) is permanent; and (ii) has been fully diagnosed, treated and stabilised. (b) Whether a finding under the Impairment Tables, and s 94(1)(b) of the Act accordingly, that a person's condition has fully stabilised and thus is permanent, to be validly made, requires some evidence or other material that that condition has fully stabilised. 24 The grounds of appeal relied upon by the Secretary are as follows: The Administrative Appeals Tribunal erred in law in that it: 1. Misconstrued and failed properly to apply s 94(1)(b) and in turn the Impairment Tables of the Social Security Act 1991 (the Act) to the material before it; 2. Failed to make a finding as to whether the Respondent's condition had stabilised and thus could be considered to be permanent so as to warrant the attribution of an impairment rating under the Impairment Tables, which finding was a necessary prerequisite to a conclusion under s 94 of the Act that the Respondent was entitled to a disability support pension; and 3. Concluded that the Respondent had an impairment with an impairment rating of twenty points, and accordingly that the Respondent satisfied s 94(1)(b) of the Act, when there was no evidence that the Respondent's condition said to give rise to that impairment had stabilised, and accordingly a necessary precondition to a qualification for a disability support pension was absent. 25 During the hearing of the appeal, it emerged that, in bringing this appeal, the Secretary had proceeded on the assumption that the relevant condition recognised by the Tribunal for the purposes of the application of the Impairment Tables, was the amputation of Mr Taylor's lower leg. This was evident because the Secretary's complaint about the absence of stabilisation of the relevant condition related to the ongoing difficulties which Mr Taylor had in adjusting to the amputation of his lower leg and the wearing of the prosthetic limb. 26 The Secretary's complaint, however, misapprehended, in a fundamental respect, the basis of the Tribunal's decision. This is because, the Tribunal characterised the relevant condition as osteomyelitis, not the amputation. It was in respect of the condition of osteomyelitis that the Tribunal member applied the Impairment Tables. 27 In my view, the Tribunal member found, as a precondition to applying the Impairment Tables, that Mr Taylor's osteomyelitis condition had been fully diagnosed, treated and stabilised. In [31] of her decision, the Tribunal member referred to the fact that the condition had been diagnosed and treated in the Royal Darwin Hospital, that the condition had worsened, and that, in the circumstances confronting Mr Taylor, amputation was a reasonable means of treating the osteomyelitis. It is the case, that the Tribunal member did not expressly state that she found that the treatment in the form of amputation led to the stabilisation of the condition. However, in my view, such a consequence was sufficiently obvious that it was unnecessary for the Tribunal member to spell out her finding to that effect. In any event, such a finding is implicit in the Tribunal's finding that Mr Taylor's condition was permanent. 28 There was evidence of Mr Taylor's medical history and condition before the Tribunal member in the form of a report from Dr Tagen Robertson. Further, in making the findings which she did, it was open to the Tribunal member to rely on her knowledge and experience as a qualified medical practitioner. The AAT Act contemplates that the Tribunal may inform itself and may rely upon its specialist skills and knowledge (s 33(1)(c) of the AAT Act). Accordingly, there was a sufficient basis for the Tribunal member lawfully to make the findings which she did. 29 Accordingly, the appeal is dismissed. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis. Associate: Dated: 9 March 2012