Avenso and Secretary, Department of Education, Employment and Workplace Relations
[2008] AATA 284
•9 April 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 284
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V 200601193
GENERAL ADMINISTRATIVE DIVISION ) Re ROSE AVENOSO Applicant
And
SECRETARY, DEPARTMENT OF EDUCATION, EMPLOYMENT AND WORKPLACE RELATIONS
Respondent
DECISION
Tribunal Mr Egon Fice, Member
Mr Kerry Breen, MemberDate9 April 2008
PlaceMelbourne
Decision The Tribunal affirms the decision under review.
(sgd) Mr Egon Fice
Member
CATCHWORDS disability support pension – allocation of impairment points – role of medical practitioners – role of job capacity assessors – introduction to the impairment tables – statutory interpretation – use of departmental guidelines – application of departmental policy – recommended imparment points by job capacity assessor
Acts Interpretation Act 1901 s 13
Social Security (Amendment 2007 Measures No 2) Act 2007 s 94 (4A) and s 94 (4B)
Social Security Act 1991 s 94 (1B), s 94 (2), s 94 (3), Schedule 1B
Social Security Amendment (2007 Measures No 2) Bill 2007
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449
Port of Brisbane Corporation v Deputy ComMsioner of Taxation (2004) 81 ALD 549
Re Drake and Minister For Immigration And Ethnic Affairs (No 2) (1979) 2 ALD 634
REASONS FOR DECISION
9 April 2008
Mr Egon Fice, Member
Mr Kerry Breen, Member1. Ms Rose Avenoso is a 51 year old woman who, on 2 May 2006, lodged a claim with Centrelink for the Disability Support Pension (DSP). Centrelink is the agency which provides services for the Department of Employment Education and Workplace Relations. As a result of a motor car accident on 27 September 1999, Ms Avenoso experienced chronic right-sided neck, shoulder and arm pain secondary to cervical disc disease. She had a second motor car accident in 2004 which aggravated her condition. The Treating Doctor's Report accompanying her application for the DSP notes that she also suffers from non-insulin dependent diabetes myelitiis and migraine.
2. On 10 June 2006 a Centrelink officer rejected Ms Avenoso's DSP claim. That decision was affirmed by a Centrelink Authorised Review Officer (ARO) on 8 September 2006. On 31 October 2006 the Social Security Appeals Tribunal (SSAT) affirmed Centrelink's decision to reject Ms Avenoso's claim for the DSP on the ground that she did not medically qualify for that pension. Ms Avenoso now seeks a review of the SSAT decision.
3. The issues which we have to determine are:
(a) whether Ms Avenoso has a physical, intellectual or psychiatric impairment which has been rated to attract at least 20 points under the Tables for the assessment of work-related impairment for disability support pension (the Impairment Tables) set out in Schedule 1B of the Social Security Act 1991 (the Act); and
(b) whether Ms Avenoso has a continuing inability to work.
relevant background
4. Ms Avenoso was born on 7 March 1957 in Italy. She was 49 years and 2 months old at the time she applied for the DSP.
5. Ms Avenoso lives at home with her mother and adult brother. She was educated to Form IV level and regards her reading and numeracy skills to be satisfactory.
6. The only employment in which Ms Avenoso has engaged since completing her schooling was that provided by her brother, Mr Vincent Avenoso. Mr Avenoso is the proprietor of a formal-wear hire and sales business. Ms Avenoso’s work in that business included fitting wedding/bridesmaid dresses, stock movement and serving customers.
7. In a letter to Centrelink Mr Avenoso explained that his sister had to transfer to the men's department, (which required her to undertake the work of fitting suits) sometime in the early 1990s as that work was not as physically onerous as the work in which she previously engaged. Mr Avenoso also said that in May 2006 he reduced his sister's hours from 30 hours per week to 8 hours per week because she could not physically meet the demands of the work. At present she manages very light duties at Mr Avenoso's business, which include organising the banking, lunches and answering the telephones. She continues to do some fitting of men's suits.
8. According to the history taken by Mr Peter Kudelka, an orthopaedic surgeon, when he examined Ms Avenoso on 28 August 2007, she was well until her first motor car accident on 27 September 1998 (sic). She was the driver of a stationary motor car which was hit from behind. Her car seat was broken and she suffered multiple bruises to the right arm and a sore and stiff neck. She developed a severe headache but did not lose consciousness. She was treated for pain and although she continued working, she attended a physiotherapist and chiropractor three times a week. She also had hydrotherapy. This treatment was paid for by the Transport Accident Commission (TAC). When the TAC payments ceased, she was unable to afford to continue with the treatment three times a week. According to Ms Avenoso, her condition deteriorated when she was unable to receive regular physiotherapy and visit her chiropractor.
9. Unfortunately, in 2004, Ms Avenoso had a second motor car accident when her car was struck from the right hand side. Her symptoms of neck pain and right shoulder pain, which had remained constant since the first motor car accident, were aggravated. In addition, she said she developed pain in the left shoulder. According to Ms Avenoso, she now suffers migraine headaches, neck pain and pain in both shoulders which requires her to attend her treating general practitioner, Dr Dennis Nakis, regularly. He treats her with Panadol, Mobic and Endep. According to Ms Avenoso, she is now unable to work for more than eight hours per week.
the legislative scheme
10. Section 94 of the Act sets out the qualifications for the DSP. Prior to 1 January 2008, when the amendments made by the Social Security (Amendment 2007 Measures No 2) Act 2007 (the Amendment Act) came into operation, a person qualified for the DSP if:
(a) the person had a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the impairment table, and
(c) one of the following applies:
(i)the person has a continuing ability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 tens qualifying Australian residence or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident,
and the person becomes an Australian resident while a dependent child of the Australian resident; and
(f) the person is not qualified for disability support pension under s 94A.
11. The meaning of continuing inability to work is set out in s 94 (2) of the Act. It provides:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a)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) 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.
12. Section 94 (3) of the Act provides:
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
13. The Amendment Act amended s 94 by the insertion of new sub-sections (4A) and (4B) which provide as follows:
(4A)The Secretary must comply with the guidelines (if any) determined and in force under sub-section (4B) in deciding the following:
(a)whether paragraph (1) (b) applies to a person;
(b)whether the Secretary is satisfied as mentioned in subsection (2) or (4).
(4B)The Minister may, by legislative instrument, determine guidelines to be complied with by the Secretary in making a decision referred to in subsection (4A).
14. As at the date of this decision, we have not been able to locate a legislative instrument which sets out the guidelines to be complied with by the Secretary when making a decision referred to in s 94 (4A).
15. Although Ms Avenoso was not born in Australia, there was no dispute about the fact that she was an Australian resident at the time she lodged her claim.
Impairment points allocated
16. In determining a person's impairment points rating for the purposes of s 94 (1)(b) of the Act, the person allocating the points must comply with the introductory paragraphs of the Impairment Tables set out in Schedule 1B of the Act, as well as any instructions in the Impairment Tables themselves. Schedule 1B, and everything contained within it, forms part of the Act (see s 13 Acts Interpretation Act 1901). Prior to the commencement of the Amendment Act, the relevant introductory paragraphs provided as follows:
1. These Tables are designed to assess whether persons whose qualification or otherwise for disability support pension is being considered meet an empirically agreed threshold in relation to the effect of their impairments, if any, on their ability to work. Work is defined in section 94(5) of the Social Security Act 1991. The Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of a functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. The outcome of the application of these Tables following a medical assessment is termed work-related impairment and this term is used throughout this document.
2. These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. The Medical Officer should not approach the Tables hoping to find various conditions listed for which he or she can read off a rating. 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 which must be asked in each and every case is "which body systems have a functional impairment due to this condition?"
3. These Tables give particular emphasis to the loss of functional capacity that a person experiences in relation to work. This is measured by reference to an individual's efficiency in performing a set of defined functions in comparison with a fully able person. In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.
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.
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 medical officer 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.
17. The Amendment Act amended the introductory paragraphs of Schedule 1B in the following relevant ways:
(a)in paragraph 1, the words a medical assessment were deleted and the words an assessment substituted;
(b)in paragraph 2, the words medical officer were omitted and assessor substituted;
(c)in paragraph 6, the words medical officer were omitted and the word assessor substituted;
(d)in paragraph 8, the words medical officer were omitted and the word assessor substituted, and the phrase medical officers must use their clinical judgement was omitted and the phrase assessors must use their judgement was substituted; and
(e)in paragraph 10, the words medical officer were omitted and the word assessor was substituted.
18. Further amendments were made to Tables 1, 2 and 22 but they do not affect this matter.
does ms avenoso have an illness or impairment?
19. Ms Avenoso claims to suffer from a number of medical conditions which affect her ability to work.
cervical spine disease
20. There is no dispute that Ms Avenoso suffers from degeneration of the cervical spine leading to neck and right arm pain. In the Treating Doctor's Report completed by Dr Nakis on 1 May 2006, he confirmed a diagnosis of cervical disc disease and stated that the date of onset was 1999. He reported that Ms Avenoso's cervical disc disease was precipitated by a motor car accident. Mr Kudelka, in a report dated 29 August 2007, said that:
This patient's neck and right arm pains are due to age related degenerative changes in the cervical spine and in the rotator cuff muscle in the acromio-clavicular joint on the right side.
21. A diagnosis of cervical spine disease is supported by three Magnetic Resonance Imaging (MRI) scans of her cervical spine taken on 31 December 2002, 26 April 2005 and 24 January 2007. The reports provided after those scans were taken confirmed that Ms Avenoso has a right paracentral C5/6 disc extrusion and the most recent report refers to mild to moderate C5/6 annular disc bulge which produces a mild central canal stenosis.
22. Dr Paul Carless, a chiropractor who has been treating Ms Avenoso since December 2002, provided a report dated 15 June 2007 which supports Dr Nakis' diagnosis. Accordingly, we are satisfied that Ms Avenoso suffers from degenerative disease of the cervical spine.
right upper limb condition / painful shoulder
23. Although Dr Nakis did not provide a discrete diagnosis regarding Ms Avenoso's painful right shoulder, he did say that she suffered chronic pain to her neck, right shoulder and arm in the Treating Doctor's Report. Mr Kudelka diagnosed age-related degenerative changes in the cervical spine and the rotator cuff muscle in the acromioclavicular joint on the right side. A MRI scan of the right shoulder taken on 27 February 2007 revealed that Ms Avenoso suffered a very small partial thickness tear involving the non‑articular aspect of the supraspinatus tendon anteriorly with mild to moderate fluid distension of the subacromion bursa. The MRI report also concluded that Ms Avenoso suffered from moderate osteoarthritis at the A‑C (acromioclavicular) joint. We are satisfied that Ms Avenoso suffers from a long term degenerative injury to her right shoulder which is separate from her cervical disc disease.
left arm pain
24. Dr Nakis made no mention of left arm pain in the Treating Doctor's Report. This condition does not appear to have been mentioned to Mr John Schutz, a job capacity assessor employed by Centrelink, when he interviewed Ms Avenoso on 8 June 2006. In a brief report dated 20 June 2006, Dr Nakis said:
This lady experiences chronic right sided neck, shoulder and arm pain secondary to cervical disc disease.
This is despite the fact that in her oral evidence, Ms Avenoso said she believed that she had mentioned this problem to Dr Nakis. She also said in evidence that the pain in her left arm was less troublesome than the pain and disability she experienced in her neck and right shoulder and arm.
25. On the other hand, Mr Kudelka recorded in his report that the history given by Ms Avenoso was that following the 2004 motor car accident, in addition to aggravation of the pain she experienced in her neck and right shoulder, she developed similar symptoms on the left side. The report indicates that she told Mr Kudelka that those symptoms persist and that she had pain in both shoulders which required regular attendance on Dr Nakis for Panadol, Mobic and Endep. After his examination, Mr Kudelka reported that Ms Avenoso had restricted movement in her neck, left shoulder, right shoulder and back. There was no other supporting evidence of any injury to the left shoulder or arm.
other medical conditions
26. In the Treating Doctor's Report, Dr Nakis identified that Ms Avenoso also suffered from non-insulin dependent diabetes and migraine. In that report, Dr Nakis noted that those conditions were generally well managed and cause minimal or limited impact on ability to function. Further, in her oral evidence, Ms Avenoso said that neither of those conditions was a current cause of ongoing disability or impairment. We have therefore not considered these two conditions further.
20 impairment points under the impairment tables
27. To qualify for the DSP, a person must have an impairment rating of at least 20 points under the Impairment Tables. Strict compliance with the introductory paragraphs to the Impairment Tables is a legal requirement for the valid allocation of an impairment rating under the tables. Mr Noonan, who appeared on behalf of the Secretary, included with the Secretary's Statement of Facts and Contentions, a document prepared by the Department of Family and Community Services which is said to be a GUIDE TO THE "INTRODUCTION" TO THE IMPAIRMENT TABLES. That Guide appears to have been prepared for the purpose of assisting officers of the Department to interpret the 13 introductory paragraphs to Schedule 1B of the Act. We are aware that there are a number of Tribunal decisions in which that Guide has been used by the Tribunal to assist it in interpreting the introductory provisions in Schedule 1B. However, and with respect to the Tribunal Members who have done so, it is our view that to adopt that course would constitute an error of law. The decision of Brennan J, the then President of the Tribunal, in Re Drake and Minister For Immigration And Ethnic Affairs (No 2) (1979) 2 ALD 634 is frequently cited as authority for adopting that course. However, as Moore J said in Port of Brisbane Corporation v Deputy Commissioner of Taxation (2004) 81 ALD 549 at 550:
The decision of Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 concerned a deportation order under the Migration Act 1958 (Cth). The then president of the tribunal, Brennan J, discussed the role of ministerial policy in the exercise of the discretionary power to deport. His Honour concluded that while the tribunal was not bound to apply that policy, it should only depart from it cautiously and sparingly, particularly if parliament had in fact scrutinised and approved the policy. That case does not suggest (nor does any other case of which I am aware) that guidelines or policy documents which express a view about the scope or meaning of legislation provide a tool or aid in construing the legislation.
In that case, Moore J was dealing with a Bulletin published by the Australian Taxation Office. The Tribunal assumed that the Bulletin constituted departmental policy and used it to assist in construing the legislation which it had to apply. Moore J held that using the material in that way was an error of law.
28. It is clear to us that we must apply the statutory and common law rules (as they are commonly referred to) of statutory interpretation to properly understand the introductory paragraphs in Schedule 1B of the Act. We must construe the introductory paragraphs in such a way that we strive to give meaning to every word in Schedule 1B (see High Court of Australia decision in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). In examining the words and phrases in the introductory paragraphs, we must adopt a contextual approach. As Mason J said in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514:
. . . to read the section in isolation from the enactment of which it forms a part is to offend against the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context . . .
It goes without saying that Schedule 1B must be read in its entirety. As Isaacs and Rich JJ said in Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455:
. . . every passage in a document must be read, not as if it were entirely divorced from its context, but as part of the whole instrument.
29. While it is not expressly stated in the introductory paragraphs that the only person who can assign impairment ratings is a qualified medical practitioner, a careful reading of all of the introductory paragraphs and, in some cases, the instructions contained in the Impairment Tables themselves, makes that abundantly clear. For example, paragraph 1 refers to the outcome of the application of the Impairment Tables in Schedule 1B following a medical assessment. Paragraph 2 refers to the approach the medical officer should take in applying the Impairment Tables. The term medical officer is not defined in the legislation but, as paragraph 2 states, the question which must be asked in each case is which body systems have a functional impairment due to this condition. The word condition in the context of these Tables must necessarily be a reference to a medical condition.
30. Significantly, paragraph 4 mandates that an impairment rating can only be assigned following a comprehensive history and examination. We understand that to mean a medical examination must be conducted. Further, before a rating can be assigned, the medical condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. Therefore, we must have evidence that the medical practitioner, before assigning an impairment rating under the Impairment Tables, is satisfied that each of these criteria is met. The medical officer assigning the impairment points may be assisted by the statement in paragraph 5 which provides that a condition may be considered fully stabilised if it is unlikely that there will be significant functional improvement, with or without reasonable treatment, within the next two years. Paragraph 5 of the introduction to Schedule 1B also requires the condition to be considered to be permanent. We would of course need evidence from a medical practitioner about that. The medical officer assigning the impairment points must consider the matters which are set out in paragraph 6 regarding treatment or rehabilitation. The medical officer should also, where necessary, evaluate and document the probable outcome of treatment.
31. In some cases, the instructions regarding the application of particular tables also make it clear that an impairment rating is to be assigned by a medical practitioner. For example, Table1, which deals with loss of cardiovascular and/or respiratory function: exercise tolerance, expressly requires the clinical judgement of medical officers to be used despite discussions with the treating doctor or where the history of exercise tolerance is inconsistent with clinical findings on examination.
32. The medical evidence presented to us at the hearing of this matter was scant. We did not have any clinical notes from any treating medical practitioners before us. The only documents prepared by Dr Nakis which were before us were the Treating Doctor's Report, which is a proforma document with very brief entries made by Dr Nakis, and the written report dated 20 June 2006 which comprises one brief paragraph of three sentences. It also lists Ms Avenoso’s current medication. There was also one medical certificate issued by Dr Nakis on 10 July 2006. It merely stated a diagnosis of cervical disc disease and that the condition is permanent. The symptoms are listed as chronic neck, shoulder and arm pain. In answer to the question whether the patient can do any work for eight hours or more per week, Dr Nakis answered, yes. In answer to a question seeking to identify any factors which may impact on the participation of the patient to return to work, Dr Nakis has noted chronic neck, shoulder and arm pain. He has also recorded the past, current and planned treatment regime to be chiropractic, neuronton, mobic, panamax. Dr Nakis states in that report that Ms Avenoso has been his patient since 31 May 1995. Dr Nakis has not attempted to assign an impairment rating under the Impairment Tables in Schedule 1B. In a letter dated 20 June 2006 he said that Ms Avenoso experienced chronic right-sided neck, shoulder and arm pain secondary to cervical disc disease. He said that Ms Avenoso had ongoing day and night-time symptoms which interfered with sleep and day-time activities; and that she used analgesics and Mobic and Neuronton to help control her symptoms. He said that those provided her with only partial relief.
33. Centrelink wrote to Corporate Health Services, a provider of medical services, on 16 July 2007 requesting an examination of Ms Avenoso and answers to a number of questions. It also asked that the examining medical practitioner provide an assessment under the Impairment Tables. As a result of that request, Ms Avenoso was examined by Mr Kudelka on 28 August 2007. Mr Kudelka was provided with a copy of the SSAT decision; Dr Nakis' letter of 20 June 2006; the ARO's decision rejecting Ms Avenoso's disability claim; and extracts from Schedule 1B of the Impairment Tables.
34. Mr Kudelka provided a detailed report dated 29 August 2007. In that report he documented the history of Ms Avenoso's medical conditions. Significantly, he recorded that Ms Avenoso complained of pain in both shoulders, as opposed to only the right shoulder mentioned by Dr Nakis. He conducted a physical examination and noted that she had restricted movement in her neck, left shoulder, right shoulder and back. In recording those restricted movements for the cervical spine, Mr Kudelka appeared to repeat the flexion reading of the cervical spine, noting 40 degrees initially and then 49 degrees. He did not give any explanation for this; that is the giving of two measurements.
35. Mr Kudelka noted that the degenerative changes in her cervical spine, particularly at C5/C6, were evident from the MRI report. Similarly, he noted the MRI of 27 February 2007 disclosed a small tear in the supraspinatus tendon and associated subacromial bursitis. In his opinion, Ms Avenoso's neck and right arm pains were due to age-related degenerative changes in the cervical spine and the rotator cuff muscle in the acromioclavicular joint on the right side. The degenerative changes were aggravated by mechanical injury in 1998 and again in 2004 and, given her age (50 years), they were unlikely to subside spontaneously although the aggravating effect could be considered to have substantially subsided in the two or three years after they occurred. According to Mr Kudelka, the remaining symptoms were age related and constitutional.
36. Mr Kudelka noted that the treatment for Ms Avenoso's condition was supportive, palliative and conservative in the form of heat, massage, exercise, analgesic and anti‑inflammatory medication. Nevertheless, he was of the view that her restrictions of movements would persist indefinitely and he was not of the view that she required injections or surgery.
37. In applying the Impairment Tables, Mr Kudelka allocated 10 points under Table 3 in respect of her right upper limb and 5 points in respect of her left upper limb. He also allocated 10 points for loss of her spinal function under Table 5.
38. Mr Kudelka concluded that during the relevant period (which he incorrectly stated was from 24 April 2006 to 21 July 2006) Ms Avenoso had a remaining impairment due to loss of function after appropriate medical treatment and rehabilitation processes. The relevant period was between 2 May 2006 and 1 August 2006, which is between the claim date and the end of 13 weeks following that date; although nothing significant seems to turn on that error. Mr Kudelka was of the view that Ms Avenoso's condition was permanent and that it was fully documented, diagnosed, investigated, treatment stabilised and was likely to persist beyond 21 July 2008.
39. While it would appear that Ms Avenoso has, following a medical examination, attracted the required impairment of at least 20 points under the Impairment Tables thereby satisfying s 94 (1)(b) of the Act, the Secretary disputes the points allocated by Mr Kudelka.
40. Mr Noonan submitted that Ms Avenoso's left upper limb condition did not meet the requirements set out in paragraph 4 of the Introduction to Schedule 1B. Therefore, that condition could not be rated under the Impairment Tables. The essence of the Secretary's complaint is that Ms Avenoso's left upper limb condition was not a fully documented, diagnosed condition which has been investigated, treated and stabilised. This is despite the fact that Mr Kudelka expressly stated that it was. Although, to be fair to Mr Kudelka, he seemed to treat the condition as encapsulating both upper limbs and her cervical spine condition. Notwithstanding that, he did allocate impairment points for Ms Avenoso's left upper limb condition. That appears to have been done solely on the basis of the history taken from Ms Avenoso at the time of examination. In the scant medical reports provided by Dr Nakis, there is no mention of left upper limb pain despite the fact that Ms Avenoso said in evidence that she believed that she had told Dr Nakis about pain in her left shoulder and arm.
41. On the evidence before us, we agree with the Secretary's submission that Ms Avenoso's left upper limb condition could not be assigned an impairment rating under the Impairment Tables because it did not satisfy the requirements set out in paragraph 4 of the introduction to the Impairment Tables.
42. The allocation of an impairment rating for Ms Avenoso's cervical spine condition (neck pain) is also not without some controversy. This seems to have arisen from Mr Kudelka's report of 29 August 2007. As we have said above, his report indicates that he measured Ms Avenoso's cervical spine flexion at 40 degrees and 49 degrees. He also measured rotation to be less than 10 degrees either side and lateral tilt at 15 degrees. As a result of those measurements, he concluded that Ms Avenoso suffered a loss of three quarters of the normal range of movement of her neck. Mr Kudelka did not indicate what the normal range for flexion, rotation or lateral tilt should be.
43. Ms Sophia Iannelli, a job capacity assessor employed by Centrelink, gave evidence that the normal range of cervical spine flexion was 60 degrees. She also said in her report of 24 October 2007 that she observed Ms Avenoso demonstrate one quarter loss of cervical range of movement in flexion and rotation and full loss of movement in extension. Ms Iannelli then concluded that Ms Avenoso had approximately one quarter loss of normal range of movement of the cervical spine with constant neck pain and that attracted 5 points under Table 5, which deals with spinal function. Under Table 5, the loss of a quarter of the normal range of movement attracts 5 points. The loss of half of the normal range of movement with frequent/constant neck pain or the loss of three quarters of normal range of movement with infrequent neck pain attracts 10 points. Mr Kudelka has indicated that his allocation of 10 points was based on the loss of three quarters of the normal range of movement with infrequent neck pain. The difference between the two is difficult to explain on the evidence before us, except perhaps by the fact that Ms Iannelli did not conduct a medical examination. Mr Kudelka was not called to give evidence nor was a supplementary report obtained from him. It seems to us that the Secretary should have arranged for Mr Kudelka to either provide a clarifying report or to have given oral evidence. He was, after all, the Secretary’s witness. Nevertheless, we have no reason to reject Mr Kudelka’s assessment. In fact, given that Mr Kudelka is an orthopaedic surgeon and he conducted a medical examination of Ms Avenoso, we accept his assessment.
44. We observe that the SSAT purported to allocate an impairment rating of 10 points for Ms Avenoso's neck condition under the impairment table 5.2. In our opinion, this is impermissible. With all due respect to the SSAT, it is not its role to allocate impairment points. As the introductory paragraphs to Schedule 1B clearly state, there must be a medical assessment before points can be allocated. The introduction also clearly indicates that the assessment must be conducted by a medical officer which, in our opinion, means a qualified medical practitioner. Furthermore, a rating can only be assigned after a comprehensive history and examination. It is clearly not the role of the SSAT to take a history and to conduct an examination even if some of its members are medically qualified. The same of course applies to this Tribunal. Just because one member of this Tribunal is a qualified medical practitioner, it does not follow that this Tribunal is able to allocate impairment points under the Impairment Tables. Our role is limited to making the correct (in this case) decision based on the evidence put before us at the time of hearing. It is not our role to usurp the function of a medical officer who takes a comprehensive history from an applicant, conducts an examination and as a consequence, allocates impairment points.
45. A job capacity assessor's role also needs to be clearly understood. Under the legislation as it existed prior to the commencement of the Amendment Act, there is no role set out for that person under the Impairment Tables as far as the allocation of an impairment points is concerned. In this case, two job capacity assessors have recommended an impairment rating be allocated to Ms Avenoso's neck condition. Mr Schutz simply noted that Ms Avenoso suffered the loss of one half of the normal range of movement together with pain, and recommended a rating of 10 points. Ms Iannelli recommended a rating of five points. This was based on the loss of one quarter of the normal range of movement of the neck with constant pain.
46. On 18 July 2007, the Department of Employment and Workplace Relations and the Department of Human Services issued a policy statement dealing with job capacity assessments. It noted that the Australian Government had committed substantial financial resources to the job capacity assessment program and that those services were to be delivered by 15 non-government providers, who are selected through a competitive tender process, and three government providers. In respect of job capacity assessors, the policy statement noted:
Organisations contracted to provide Job Capacity Assessments must employ a multi‑disciplinary team of allied health professionals with skills in determining functional ability demonstrated through experience and expertise in areas such as vocational, rehabilitation and the delivery of government funded employment programs. In addition to their qualifications and experience as allied health professionals, all assessors must undertake specialised job capacity assessment training to build on their pre‑existing knowledge base.
In dealing with assessments undertaken by job capacity assessment providers, one of the functions of that role listed in the policy statement is to recommend appropriate ratings under the Impairment Tables for permanent medical conditions.
47. The function of this Tribunal in relation to Ministerial policy was fully explained by Brennan J in Drake. Although that case dealt with the exercise of discretionary power and Ministerial policy, the principles stated by Brennan J have been generally applied to departmental policies. His Honour said, at 645:
The general practice will require the tribunal to determine whether the policy is lawful, not in order to supervise the exercise by the Minister of his discretion, but in order to determine whether the policy is appropriate for application by the tribunal in making its own decision on review.
His Honour also indicated that a Tribunal will ordinarily apply policy in reviewing a decision, unless the policy is unlawful or unless its application tends to produce an unjust decision in the circumstances of the particular case. He also said, at 645:
The general practice of the tribunal will not preclude the tribunal from making appropriate observations on ministerial policy, and thus contributing the benefit of its experience to the growth or modification of generally policy; but the practice is intended to leave the Minister the political responsibility for broad policy, to permit the tribunal to function as an adjudicative tribunal rather than as a policy maker, and to facilitate the making of consistent decisions in the exercise of the same discretionary power.
48. We are mindful of the fact that we are not dealing with Ministerial policy in this case, nor are we dealing with the exercise of discretionary power. Nevertheless, we believe we should apply the policy except in the circumstances explained by Brennan J in Drake. The departmental policy in question here relating to job capacity assessments requires job capacity assessors to recommend appropriate ratings under the Impairment Tables. While merely recommending impairment ratings is not contrary to the legislation as that is expressed in the introduction to Schedule 1B of the Act, it seems to us to leave the decision‑maker in a position of having to decide what to do with recommendations made by job capacity assessors. We are, of course, referring to the situation as it existed prior to the commencement of the Amendment Act.
49. The problem which confronts us is that the legislation, by way of Schedule 1B of the Act, prescribes steps which a medical officer must take prior to allocating impairment rating points. If the medical practitioner fails to comply with any of the steps, for example, if he or she does not conduct an examination, then the impairment rating is not one which has been lawfully applied. In those circumstances, it would be proper for the Tribunal to reject the allocation of points where that occurred and, if appropriate, remit the matter to the decision maker with a direction that a medical examination be conducted prior to impairment points being allocated. As far as job capacity assessors are concerned, because they are not medical practitioners, it is clear that they cannot comply with the introductory paragraphs to the Impairment Tables. It could not be said that a job capacity assessor that is not a qualified medical practitioner has conducted a medical assessment as is required under Schedule 1B of the Act. Also, a job capacity assessor could not satisfy the pre-conditions of assessment set out in introductory paragraph 4. The requirements in paragraphs 5 and 6 of the Introduction to Schedule 1B of the Act could only be determined by a medical practitioner.
50. Of course a job capacity assessor may state that he or she has relied on the report of a medical practitioner in recommending an impairment rating. However, without having undertaken the requirements set out in the introductory paragraphs to Schedule 1B of the Act, the job capacity assessor, in recommending a points rating, may in fact be usurping the role of the medical officer. For example, in this case, Ms Iannelli has examined Mr Kudelka's report, found some problems with understanding how Mr Kudelka arrived at his assessment, and has recommended 5 impairment points rather than 10 points. This was on the basis of the loss of normal range of movement of Ms Avenoso's neck. However, Ms Iannelli’s evidence was that she relied solely on her observations. It may be that Mr Kudelka arrived at his decision that there was a three quarter loss of normal range of movement only after having considered the interaction of all of the loss of range of movement measurements. Without a contradictory medical assessment, we have no basis for disputing Mr Kudelka’s assessment. What this demonstrates to us is that the recommendation of a job capacity assessor may inadvertently mislead due to a failure to take into account the interaction of various conditions or the combined loss of range of movement. It seems to us that we should place no weight whatsoever on a job capacity assessor's recommended allocation of impairment points. Accordingly, we reject both Mr Schutz’s and Ms Iannelli's recommended impairment ratings.
51. A further question may arise regarding the role of job capacity assessors following the commencement of the Amendment Act on 1 January 2008. In effect, the Amendment Act removes references in Schedule 1B to medical assessment and medical officer and substitutes assessment and assessor in their place. The Explanatory Memorandum to the Social Security Amendment (2007 Measures No 2) Bill 2007 states:
Under Schedule 1B the diagnosis of a person's condition is a function that may be appropriately undertaken by medical practitioners. Medical information and evidence, such as a treating doctor's report, are required in identifying conditions. However, determining the impact of impairments or conditions on a person's work functionality requires knowledge and experience in occupations and the types of interventions that may increase capacity. Assessors, such as job capacity assessors, have the necessary knowledge to apply the work‑related impairment tables. Therefore the references to medical officers in the context of the impairment tables are to be replaced with the term "assessors".
52. We foreshadow considerable difficulty in applying the Amendment Act. There are no transitional provisions set out in that Act, nor have any guidelines been published. In this case, it probably does not affect the outcome. The reason is that both Ms Iannelli’s and Mr Schutz's job capacity assessment reports preceded the commencement of the Amendment Act. Therefore, arguably, those reports are to be dealt with under the legislation as it existed prior to 1 January 2008. This is despite the fact that Ms Iannelli gave evidence on 29 January 2008 at the hearing of this matter. Her oral evidence was based on her prior reports and therefore we are satisfied that the Amendment Act does not apply to Ms Avenoso's claim. A more difficult situation would arise if a medical officer had allocated impairment points prior to 1 January 2008, and a job capacity assessor provided a conflicting report after that date. Even if we are wrong about that, Ms Iannelli said she did not take a history and conduct an examination of Ms Avenoso. Given that the requirement to conduct an examination has not been altered by the Amendment Act, we are of the view that we should reject her evidence regarding a recommended impairment rating. We foresee a number of other problems in applying the Amendment Act although, as none of them will impact on our decision, we find it unnecessary to deal with them.
53. There is also some dispute about the points allocated by Mr Kudelka for Ms Avenoso's right shoulder condition. Mr Kudelka allocated 10 points while both Mr Schutz and Ms Iannelli recommended zero points. Again, for the reasons we have outlined above, we place no weight whatsoever on the recommended points allocation by Mr Schutz and Ms Iannelli. There was some evidence that this condition has been documented and has been investigated, treated and stabilised. We therefore see no reason to reject Mr Kudelka's assessment that Ms Avenoso's right shoulder condition should attract 10 impairment points.
54. Our conclusion regarding the allocation of impairment rating points is that Ms Avenoso does meet the requirement of s 94(1b) in that her conditions attract an impairment rating of at least 20 points. Mr Kudelka is a specialist in the relevant field and he was asked by Centrelink's representatives to assess Ms Avenoso. He obtained a comprehensive history and conducted an examination. He determined that Ms Avenoso's neck and right shoulder condition were fully documented and had been investigated, treated and stabilised. His assessment follows the legislative requirements set out in the Introduction to Schedule 1B of the Act. However, we are not able to accept Mr Kudelka's assessment of 5 points for her left shoulder condition because there is no evidence at all before us that it has been fully documented let alone investigated, treated and stabilised.
continuing inability to work
55. The meaning of continuing inability to work is set out in s 94 (2) of the Act.
56. Section 94 (3) provides that in deciding whether or not a person has a continuing inability to work because of an impairment, we must not have regard to the availability of training or the availability of work in the person’s locally accessible labour market.
57. Currently, work is defined as work that is for at least 15 hours per week at award wages and above and which exists in Australia, even if not within the person's locally assessable labour market. This definition of work commenced on 1 July 2006 which is after Ms Avenoso lodged her claim. The transitional provisions to the amending legislation provide that the amendments of the Social Security Act 1991 made by Act No 54 of 2005 only apply to claims made for the DSP after 1 July 2006. We are therefore required to apply the prior legislation, which defined work in terms of working at least 30 hours per week at award wages or above.
58. Ms Avenoso has worked for her brother, Mr Avenoso, since she commenced working in about July 1985. In response to a request from Centrelink, Mr Avenoso provided a statement regarding the nature of his sister's duties. He said that his business was formal-wear hire and sales. Ms Avenoso assisted with fitting wedding/bridesmaid dresses, stock movement and serving customers. He said that from the early 90s, he had to change her duties as she had difficulty lifting dresses to place them, presumably, on racks or customers. She was transferred to the men's department fitting suits. This continued until May 2006 when her hours were reduced from 30 hours per week to 8 hours per week as she was having physical difficulties with her work. Since May 2006, according to Mr Avenoso, his sister only attends to very light duties such as organising banking, lunches and answering telephones. She also does some fitting of men's suits. According to Mr Avenoso, the reasons why his sister is unable to work more than 30 hours per week is that the injuries she has suffered have affected her neck, right arm and shoulder and that she also had trouble with her left shoulder. Ms Avenoso's evidence was that she would like to go back to work at her brother's business for 30 hours per week and she was of the view that if she were able to afford more physiotherapy, she may be able to cope with the required tasks at her brother's business. However, without additional physiotherapy, she said that she could not work 30 hours per week.
59. According to a medical certificate provided by Dr Nakis on 11 April 2006, in answer to a question whether Ms Avenoso could do any other work for 8 hours or more per week, Dr Nakis answered yes. We have noted, however, that Dr Nakis, in making that assessment, referred only to Ms Avenoso's chronic neck, shoulder and arm pain. The only medical condition referred to on that certificate is cervical disc disease. Although Dr Nakis has referred to her shoulder and arm pain, it is uncertain as to whether he had taken into account the fact that Ms Avenoso was suffering from degenerative change to the acromioclavicular joint. There appears to be no reference at all to Ms Avenoso's claimed pain in the left shoulder and arm.
60. Mr Schutz assessed Ms Avenoso's work capacity, without any intervention programs, to be between 8 and 14 hours per week persisting for more than 24 months. However, Mr Schutz was of the view that with educational, vocational or on‑the‑job training, Ms Avenoso could increase to 30 hours per week within 6 to 24 months. He suggested a number of suitable work options including clerical officer, general clerk, mail clerk and sales / retail.
61. Ms Iannelli conducted an assessment on 24 October 2007. While she was of the view that Ms Avenoso would find it difficult to increase her hours in her current occupation because of the physical demands requiring upper limb movements above shoulder height, if she were able to find a suitable alternative employment which did not involve heavy lifting above shoulder height, her capacity for full time employment would be increased. She was of the opinion that Ms Avenoso would benefit from some form of vocational rehabilitation, which would enable her to engage in employment in excess of 30 hours per week. In fact, Ms Avenoso's own description of her work capacity since the first motor car accident would seem to support the view of both job capacity assessors that she is capable of lighter work for periods exceeding 30 hours per week. While we acknowledge the understandable concerns that Ms Avenoso has expressed regarding seeking employment other than with her brother's business, that does not, by itself, mean that she is prevented from doing any work within the next two years.
62. We are satisfied that Ms Avenoso is capable of undertaking some form of training activity which would enable her to increase her work capacity significantly. In coming to this conclusion, we have borne in mind the fact that both Ms Iannelli and Mr Schutz had a different view about the impairment rating which should be applied to Ms Avenoso's neck and right shoulder conditions. That may have affected the way in which the job capacity assessors came to their conclusion; although it remains inescapable that on her evidence, Ms Avenoso is able to perform light duties despite the serious nature of her neck and right shoulder conditions. We are also mindful of the fact that Ms Avenoso has now also complained about pain she suffers in her left shoulder. For the reasons we have set out above, that condition cannot be allocated impairment points at this time, although that may change in the future.
conclusion
63. We are of the opinion that Ms Avenoso satisfied s 94(1)(a) and (b) of the Act at the relevant time, that is between 2 May 2006 and 1 August 2006. However, we cannot be satisfied that she has a continuing inability to work. Therefore, Ms Avenoso does not meet the qualifying criteria for the DSP. It follows that the decision of the SSAT made on 31 October 2006 was correct and should be affirmed.
I certify that the sixty-three [63] preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr Egon Fice, Member and Mr Kerry Breen, Member
(sgd) Mara Putnis
ClerkDates of Hearing: 29 January 2008
Date of Decision: 9 April 2008
Advocate for the Applicant: self-represented
Advocate for the Respondent: Mr T. Noonan, Centrelink Legal Services
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