Baranek and Secretary, Department of Social Services (Social services second review)

Baranek and Secretary, Department of Social Services (Social services second review) [2018] AATA 967 (23 April 2018)
Division:GENERAL DIVISION
File Number: 2017/3457
Re:Beata Baranek
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:23 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member D K Grigg
23 April 2018
INTRODUCTION

On 4 August 2016 Ms Baranek lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·degenerated L5 – S1 disc, L2/3 and L3/4 disc bulge, L4/5 diffuse disc bulge
·degenerative changes in the C2/3, C3/4, C4/5, C5/6, C6/7, C7/T1
·depressive disorder (dysthymia)
·fibromyalgia
·rotation of pelvic structure
·Gastro – oeso
·insomnia
·asthma
[1] Exhibit 1, T Documents, T 41, pages 224 – 253, Ms Baranekaranek’s Claim for DSP dated 4 August 2016.
Ms Baranek claims her conditions impact her mobility, her mental health function, her spinal function and causes her chronic pain.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Ms Baranek’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T 44, pages 270 – 271, Rejection of claim for DSP dated 20 September 2016.

Claim History

Ms Baranek sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[3] Exhibit 1, T Documents, T 48, pages 292 – 299, Decision of ARO dated 14 December 2016.
Ms Baranekmedical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more.[3]
Ms Baranek lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 27 January 2017.[4] The SSCSD rejected
[4]Exhibit 1, T Documents, T50, pages 303 – 304, Request for Statement Reapplication for Further Review dated 27 January 2017.
[5] Exhibit 1, T Documents, T2, pages 3 – 11, SSCSD’s Decision and Reasons for Decision dated 12 May 2017.
Ms Baranekclaim and affirmed the ARO’s decision on 12 May 2017.[5]
Ms Baranek has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 14 June 2017.

ISSUES FOR DETERMINATION

Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Baranek must have a physical, intellectual or psychiatric impairment;
(b)Ms Baranek’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Ms Baranek has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Baranek meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance,4 August 20146), unless Ms Baranek becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, to qualify for DSP Ms Baranek must have met the Section 94 Requirements between 4 August 2016 and 4 November 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Baranek’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[9]
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

DID MS BARANEK HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
What is an Impairment

The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.

Ms Baranek’s medical conditions
Lumber Spinal Condition

In June 2011 Dr Russell Davies, General Practitioner, reported that Ms Baranek:[11]
(a)had low back pain and sciatica which was radiating into her left leg; and
(b)was taking analgesics and anti-inflammatory medication.
[11] Exhibit 1, T Documents, T 10, page 89, Medical certificate of Dr Davies dated 11 June 2011.
In September 2011 Dr Zofia Piotrowska-Hess, General Practitioner, reported that Ms Baranek:[12]
(a)had lower back degenerative changes and left sciatica which was permanent and would affect her ability to function for more than 24 months and would remain unchanged;
(b)had chronic back pain;
(c)could not work or stand in compulsory position;
(d)had restricted bending, walking and sitting;
(e)had intermittent left leg pain; and
(f)was treating her condition with exercise and painkillers.
[12]Exhibit 1, T Documents, T 11, page 90, Medical certificate of Dr Piotrowska-Hess dated 7 September 2011; T12 pages 92 – 93, Medical Report of Dr Piotrowska-Hess dated 7 September 2011.
In November 2011 Dr Stanley Miller, General Practitioner, reported that Ms Baranek:[13]
(a)had sciatica, and low back pain which radiates down her left leg;
(b)had mild-to-moderate symptoms;
(c)was not currently treating her spinal condition and the recommended treatment was uncertain;
(d)could not stand or sit for prolonged periods;
(e)the impact of the condition was likely to affect her ability to function for 3 – 24 months and was likely to remain unchanged in the next two years.
[13] Exhibit 1, T Documents, T13, pages 100 – 101, Medical Report of Dr Miller dated 28 November 2011.
In April 2014 Dr Cheng Guo, General Practitioner, reported that Ms Baranek had low back pain which she was treating with Panadol and that she would be referred to a physiotherapist.[14]
[14] Exhibit 1, T Documents, T19, page 117, Medical certificate of Dr Guo dated 28 April 2014.
In May 2014 Dr Guo reported that Ms Baranek:[15]
(a)had osteoarthritis of the lumbar spine and left sciatica low back pain which she was treating with Panadol, Panadeine Forte and acupuncture and that she would be referred to a physiotherapist;
(b)the planned treatment was to continue taking analgesia, acupuncture and physiotherapy;
(c)lifting, bending and pushing makes the pain worse;
(d)sitting for a long time causes pain in her lower back; and
(e)the condition was likely to affect her ability to function for more than 24 months and is likely to fluctuate within the next two years.
[15] Exhibit 1, T Documents, T20, pages 121 – 123, Medical Report of Dr Guo dated 5 May 2014.
In March 2014 Ms Baranek had an x-ray of her lumbar spine which indicated degenerative disc disease with moderate loss of disc height.[16]
[16] Exhibit 1, T Documents, T22, page 133, X-ray report dated 1 April 2014.
In August 2014 Dr Guo reported that:
(a)Ms Baranek:[17]
(i)had osteoarthritis of the lumbar spine and left sciatica;
(ii)was treating the condition with analgesias, acupuncture, physiotherapy and psychological counselling and this treatment was to be continued;
(iii)complains of ongoing pain in her lower back;
(b)lifting, bending and pushing make’s her back pain worse;
(c)sitting for a long time (that is greater than 30 minutes) also causes pain in her lower back;
(d)the pain in her lower back radiates to her left leg;
(e)the condition is expected to impact on her ability to function for more than 24 months and is expected to fluctuate within the next two years.
[17] Exhibit 1, T Documents, T25, pages 150 – 152, Medical Report of Dr Guo dated 15 August 2014.
In August 2015 Ms Baranek had a CT scan of her lumbar spine which indicated disc degeneration especially at the L5/S1, Central and right paracentral disc protrusion at L5/S1 with mild indentation of thecal sac and extending to adjacent right S1 nerve of unknown significance, reduction in disc height and subchondral sclerosis and marginal osteophytes.[18]
[18] Exhibit 1, T Documents, T 27, pages 160-161, CT scan report dated 26 August 2015.
In September 2015 Dr Elizabeth Headden, General Practitioner, reported that Ms Baranek had degenerative back pain including pain down her legs which is affecting her sitting, standing and mobility and that she was currently treating the condition with painkillers (Lyrica) and may need for a further referral physiotherapy.[19]
[19] Exhibit 1, T Documents, T 28, page 162, Medical certificate of Dr Headden dated 15 September 2015.
In October 2015 Dr Headden referred Ms Baranek to an Orthopaedic Surgeon for review because she had an ongoing lower back pain and a trial of Lyrica had not improved her symptoms.[20]
[20] Exhibit 1, T Documents, T 32, page 182, Referral to Dr Mayo dated 22 October 2015.
In December 2015 Dr Headden reported that Ms Baranek was awaiting orthopaedic review and that physiotherapy had not improved her pain.[21]
[21] Exhibit 1, T Documents, T 33, page 188, Reported Dr Headden dated 4 December 2015.
In December 2015 Dr Headden answered a Basic Rights Queensland Questionnaire and reported that:[22]
(a)Ms Baranek’s lumber spine condition was fully diagnosed and that as at September 2015 she had had all reasonable treatment which was likely to result in a significant functional improvement;
(b)Ms Baranek started physiotherapy in September 2015;
(c)Ms Baranek is currently on increased pain relief and started on Norspan patches in November 2015; and
(d)Ms Baranek cannot lift up a cardboard box with a heavy object, has difficulty bending and kneeling, has poor concentration and decision-making and social withdrawal.
[22]Exhibit 1, T Documents, T 34, pages 191 – 193, Basic Rights Queensland Questionnaire completed by Dr Headden dated 8 December 2015.
In March 2016 Dr Headden reported that:[23]
[Ms Baranek] suffers from multiple joint pains which particularly affects her neck, lumbar spine, hips and feet. X-rays of the hips show osteoarthritis. Lumbar spine scan shows L5/S1 disc bulge. She has had physiotherapy with no improvement She’s been told by the specialist physiotherapy… that her condition is permanent and she has to learn to live with it. She remains on the waiting list to see an orthopaedic surgeon. I have arranged for x-rays of both her feet. Back pain affects her day-to-day living, she can struggle to walk some days due to the pain. She struggles to do her daily chores and go shopping. Walking and standing any length of time can be difficult.
[23] Exhibit 1, T Documents, T 38, page 221, Report of Dr Headden dated 20 March 2016.
In August 2016 Dr Headden reported that Ms Baranek had been referred to an orthopaedic surgeon was awaiting an appointment for their specialist opinion.[24]
[24] Exhibit 1, T Documents, T 42, pages 255 – 256, Referral of Dr Headden dated 15 August 2016.
In October 2016 Ms Baranek had another CT scan of her lumbar spine which found mild disc degenerative disease at multiple levels mainly affecting the L4/5 and L5/S1 levels, no evidence of nerve impingement, SI joints slightly degenerative bilaterally. It was recommended by the radiologist, Dr Humza Carim, that an MRI be considered given that Ms Barenek had complained of pain in the right S1 joint down to the right leg and foot and pins and needles in her toes.[25]
[25] Exhibit 1, T Documents, T 45, pages 274 – 275 CT report dated 11 October 2016.
In August 2016 Ms Baranek was advised that she had been categorised as a category 2 outpatient at the orthopaedic clinic Caboolture Hospital and that an appointment would be offered when one became available.[26]
[26]Exhibit 1, T Documents, T 45, page 282, Letter from Caboolture Hospital to Ms Baranek dated 25 August 2016.

Cervical Spinal Condition

In September 2011 Dr Piotrowska-Hess, General Practitioner, reported that Ms Baranek:[27]
(a)had cervical spine degenerative changes which was permanent but well managed and caused minimal or limited impact on Ms Baranek’s ability to function; and
(b)had headaches and shoulder pains; and
(c)was treating the condition with exercise and NSAIDS.
[27]Exhibit 1, T Documents, T 11, page 90, Medical certificate of Dr Piotrowska-Hess dated seven September 2011; T12 page 96, Medical Report of Dr Piotrowska-Hess dated seven September 2011.
In November 2011 Dr Miller reported that Ms Baranek:[28]
(a)had painful neck and shoulders;
(b)was not currently treating the condition and there was no future treatment planned;
(c)had pain on sitting and standing for prolonged periods;
(d)the effect of the condition on her ability to function is expected to remain unchanged within the next two years.
[28] Exhibit 1, T Documents, T13, pages 102 – 103, Medical Report of Dr Miller dated 28 November 2011.
In April 2014 Dr Guo reported that Ms Baranek had neck pain and pain in her left forearm and left elbow which she was treating with Panadol and that she would be referred to a physiotherapist.[29]
[29] Exhibit 1, T Documents, T19, page 117, Medical certificate of Dr Guo dated 28 April 2014.
In May 2014 Dr Guo reported that Ms Baranek:[30]
(a)had degenerative disc disease of the cervical spine and neck pain;
(b)was treating the condition with analgesia, and acupuncture and physiotherapy and this was the planned continued treatment;
(c)felt stiff and has pain in her neck;
(d)has worse pain when carrying things or when sitting for a long time in front of the computer;
(e)the condition was likely to affect her ability to function for more than 24 months and is likely to fluctuate within the next two years.
[30] Exhibit 1, T Documents, T20, pages 124 – 126, Medical Report of Dr Guo dated 5 May 2014.
In March 2014 Ms Baranek had an CT scan of her cervical spine which indicated mild disc space narrowing at the C6/7 level and minor degenerative changes in the facet joints at the C7/T1 and T1/T2 levels.[31]
[31] Exhibit 1, T Documents, T22, page 134, CT scan report dated 23 April 2014.
In April 2014 Ms Baranek had a x-ray of her cervical spine which indicated mild degenerative disc disease at C6/7 level with mild loss of disc height and anterior spondylosis of vertebral end plates.[32]
[32] Exhibit 1, T Documents, T22, page 133, x-ray report dated 1 April 2014.
In May 2014 Bonnie Ha, physiotherapist, reported that:[33]
(a)Ms Baranek had restricted cervical rotation due to soreness on the right side of her neck;
(b)treatment consisted of manual therapy and trigger point releases and soft tissue massage;
(c)her symptoms had improved but her sciatic symptoms have been slow to progress due to the limited amount of treatment sessions; and
(d)a long-term Pilates program would be a deal to manage her symptoms independently.
[33] Exhibit 1, T Documents, T 22, page 136, Report of Ms Ha dated 29 May 2014.
In August 2014 Dr Guo reported that Ms Baranek had:[34]
(a)osteoarthritis of the cervical spine;
(b)was treating the condition with analgesias, acupuncture, physiotherapy and psychological counselling and this treatment was to be continued;
(c)she has pain in her neck and carrying makes pain in the neck worse;
(d)the condition is expected to impact on her ability to function for more than 24 months and is expected to fluctuate within the next two years.
[34] Exhibit 1, T Documents, T25, pages 150 – 152, Medical Report of Dr Guo dated 15 August 2014.
In August 2015 Ms Baranek had a CT scan of her cervical spine which indicated some loss of normal cervical lordosis and degenerative change in mid/lower cervical spine especially at C6/7 and C7/T1.[35]
[35] Exhibit 1, T Documents, T 27, page 160, CT scan report dated 26 August 2015.
In November 2014 Dr Angus Forbes, Occupational Physician, reported that:[36]
(a)the mild degeneration throughout the lumbar spine is the most likely cause for Ms Baranek’s ongoing pain;
(b)surgery would not be indicated and Ms Baranek would be best served by weight loss and exercise program;
(c)it is likely that if an MRI of her neck was performed there will be similar findings to those in her lumbar spine ;
(d)Ms Baranek has a relatively normal range of motion in the neck although it is limited by soreness in all directions;
(e)Ms Baranek has radiation of pain into her right arm which seems to be primarily associated with musculoskeletal pain is in and around the base of the neck.
[36] Exhibit 1, T Documents, T 35, page 197, Report of Dr Forbes dated 18 November 2015.
An MRI of Ms Baranek’s lumbosacral spine in November 2015 indicated:[37]
Lumbar spondylosis with disc and facet degenerative changes… Posterocentral protrusion at L5/S1 disc without any nerve impingement. Multiple lumbar discs showing left extraforaminal disc annular tears which may be responsible for low back pain… No sign of nerve compression.
[37] Exhibit 1, T Documents, T 35, page 198, MRI report dated 23 November 2015.
In December 2015 Dr Headden answered a Basic Rights Queensland Questionnaire and reported that Ms Baranek’s chronic neck condition and has been fully treated and stabilised since November 2015.[38]
[38]Exhibit 1, T Documents, T 34, pages 191 – 193, Basic Rights Queensland Questionnaire completed by Dr Headden dated 8 December 2015.
On 14 December 2015 Ms Baranek was assessed by the Orthopaedic Physiotherapy Screening Clinic and Multidisciplinary Service at Redcliffe Hospital. Daniel Wiggins, the clinical leader, reported that they had treated Ms Baranek with manual therapy and commenced decompressive back pain exercises and started her on a program of core stability and gentle mobilisation. Mr Wiggins noted that Ms Baranek has some anxiety and that he referred her to a psychologist for a trial of three months and that he would review her again in 3 to 4 months time.[39]
[39] Exhibit 1, T Documents, T 35, pages 199 – 200, Report of Mr Wickens dated 14 December 2015.

Depression

In June 2011 Dr Davies reported that Ms Baranek was depressed.[40]
[40] Exhibit 1, T Documents, T 10, page 89, Medical certificate of Dr Davies dated 11 June 2011.

In September 2011 Dr Piotrowska-Hess reported that Ms Baranek:[41]
(a)had anxiety and depression which was permanent and likely to affect her ability to function for more than 24 months and would remain unchanged for the next two years;
(b)had anxiety, insomnia, panic attacks and poor concentration;
(c)was treating her condition with counselling and intermittent antidepressants and sedatives; and
(d)could not concentrate, had frequent anxiety and had a depressed mood.
[41]Exhibit 1, T Documents, T 11, page 90, Medical certificate of Dr Piotrowska-Hess dated seven September 2011;T12 pages 94 – 95, medical Report of Dr Piotrowska-Hess dated 7 September 2011.
In November 2011 Dr Miller reported that Ms Baranek’s depression was well-managed in causing minimal or limited impact on her ability to function and that she was not taking any treatment.[42]
[42] Exhibit 1, T Documents, T13, page 104, Medical Report of Dr Miller dated 28 November 2011.
In June 2012 Dr Dao-Xuan Vo, General Practitioner, reported that Ms Baranek had anxiety and stress which was temporary and that planned treatment was to have a psychology consultation.[43]
[43] Exhibit 1, T Documents, T15, page 113, Medical certificate of Dr Vo dated 8 June 2012.
In April 2014 Dr Guo reported that Ms Baranek:[44]
(a)had depression and anxiety, with an uncertain prognosis, which was causing tiredness, poor sleep, poor concentration, palpitation, sweats, anxiety, and panic attacks; and
(b)was treating the condition with Endep but that she may need psychologist review.
[44] Exhibit 1, T Documents, T19, page 117, Medical certificate of Dr Guo dated 28 April 2014.
In May 2014 Dr Guo reported that Ms Baranek’s depression and anxiety was well-managed and causing minimal or limited impact on her ability to function.[45]
[45] Exhibit 1, T Documents, T20, page 127, Medical Report of Dr Guo dated 5 May 2014.
In August 2014 Dr Guo reported that:[46]
(a)Ms Baranek:
(i)had depression and anxiety;
(ii)was treating the condition with antidepressants and psychological counselling and this treatment was to be continued;
(iii)complains of low energy, depressed mood, poor sleep, poor appetite, poor memory and concentration, a lack of interest in daily activities, that she feels anxious, worries and has panic attacks;
(b)the condition is expected to impact on her ability to function for more than 24 months and the effect of the condition on her ability to function within the next two years is uncertain.
[46] Exhibit 1, T Documents, T25, pages 153 – 155, Medical Report of Dr Guo dated 15 August 2014.
In September 2015 Dr Headden reported that Ms Baranek had reactive depression and was suffering from a low mood, poor sleep and was not coping due to her chronic pain but that she was likely to show considerable improvement within two years.[47]
[47] Exhibit 1, T Documents, T 29, page 163, Medical certificate of Dr Headden dated 18 September 2015.
In October 2015 Dr Headden reported that Ms Baranek was still suffering from reactive depression and was being referred to a psychologist for diagnostic assessment and had not received specialist mental health care in the past.[48]
[48]Exhibit 1, T Documents, T 30, page 164, Medical certificate of Dr Headden dated 14 October 2015; T 32 pages 173 – 179, GP Mental Health Care Plan prepared by Dr Headden dated 14 October 2015.
In December 2015 Dr Headden reported that Ms Baranek was attending a psychologist and has a long-term mood issue which may be difficult to improve.[49]
[49] Exhibit 1, T Documents, T 33, page 188, reported Dr Headden dated 4 December 2015.
In late 2015 Ms Angela O’Neill, Psychologist, reported that Ms Baranek had attended four sessions with her since October 2015 for ongoing depression and anxiety due to her back pain. Ms O’Neill reports that:[50]
(a)Ms Baranek told her:
(i)she had debilitating pain which limits her capacity to do many activities including standing for periods of time, sitting, self care (washing and dressing) and walking;
(ii)that her inability to work due to her physical pain is creating high levels of depression and she has feelings of intense hopelessness and frustration that she cannot work ;
(b)she had focused on cognitive behavioral therapy techniques to assist her to manage emotional regulation more effectively; and
(c)recommended she connect with pain support groups and consult an orthopaedic surgeon to understand her best treatment options.
[50] Exhibit 1, T Documents, T 33, page 190, Report of Ms O'Neill.
In December 2015 Dr Headden reported that Ms Baranek’s depression condition and has been fully treated and stabilised since September 2015.[51]
[51]Exhibit 1, T Documents, T 34, page 194, basic rights Queensland questionnaire completed by Dr Headden dated 8 December 2015.
In December 2015 Ms O’Neill reported that Ms Baranek had attended six sessions with her since October 2015 for ongoing depression and anxiety due to have back pain. Ms O’Neill reports that:[52]
(a)Ms Baranek has undertaken a number of steps to reduce stress levels including applying for the DSP, attending appointments with a specialist to understand her options for improving a back injury and undertaking regular sessions with a therapist;
(b)Ms Baranek has struggled at times to believe she has a capacity to enact change in her life and this is an area which needs ongoing support;
(c)Ms Baranek has had some improvement in her sessions would benefit from additional sessions to continue to assist her to develop problem-solving skills, increased resilience, to address the long-standing depression anxiety, to improve her self-efficacy and to increase her involvement in community activities.
[52] Exhibit 1, T Documents, T 35, pages 202 – 203, Report of Ms O'Neill dated 17 December 2015.
In March 2016 Dr Headden reported that Ms Baranek is attending a clinical psychologist for depression and has ongoing low mood, poor sleep and no energy.[53]
[53] Exhibit 1, T Documents, T 38, page 221, Report of Dr Headden dated 20 March 2016.
In April 2016 Dr Jane Zhao-O’Brien, Clinical Psychologist, reported that Ms Baranek has started psychological treatment with her on 10 March 2016 and attended four sessions to date. In Dr Zhao-O’Brien’s opinion Ms Baranek has “persistent depressive disorder (Dysthymia)” and that recovering from this condition is usually slow and requires long-term therapy.[54]
[54] Exhibit 1, T Documents, T 39, page 222, Report of Dr now O'Brien dated 18 April 2016.
In June 2016 Dr Zhao-O’Brien reported that:[55]
(a)Ms Baranek had attended eight sessions to date;
(b)Ms Baranek reported that she was experiencing chronic physical pain at various locations in her body and that her doctor is currently investigating the possibility of a diagnosis of fibromyalgia;
(c)Ms Baranek meets the criteria for persistent depressive disorder;
(d)Ms Baranek’s progress in treatment has been very slow which is unsurprising given the chronic nature of her depression and persistent physical pain which has significantly undermined her level of energies and motivation.
[55] Exhibit 1, T Documents, T 39, page 257, Report of Dr now O'Brien dated 21 June 2016.

Upper limbs – Elbow

In April 2013 Ms Baranek presented to the emergency department, Caboolture Hospital, with an elbow dislocation.[56]
[56] Exhibit 1, T Documents, T 22, page 131, letter from Caboolture Hospital dated 27 April 2013.
In August 2014 Dr Guo reported that Ms Baranek had pain in her left elbow following her dislocation in 2013 but that the condition was generally well managed and caused minimal or limited impact on her ability to function.[57]
[57] Exhibit 1, T Documents, T25, page 156, Medical Report of Dr Guo dated 15 August 2014.

Lower limbs – Right knee/heels

In July 2014 an MRI of Ms Baranek’s right knee indicated she had patella chondromalacia.[58]
[58] Exhibit 1, T Documents, T 24, page 146, MRI report dated 8 July 2014.
In August 2014 Dr Guo reported that Ms Baranek’s right patella chondromalacia was generally well managed and caused minimal or limited impact on her ability to function.[59]
[59] Exhibit 1, T Documents, T25, page 156, Medical Report of Dr Guo dated 15 August 2014.
In May 2016 Ms Baranek had an ultrasound of both of her heels which showed fascial thickening bilaterally and possibly focal fibromata.[60]
[60] Exhibit 1, T Documents, T 45, page 273, ultrasound report dated 9 May 2016.
An MRI of Ms Baranek’s right knee in October 2016 indicated chondral fissuring, chondral loss, and patellofemoral osteoarthritis.[61]
[61] Exhibit 1, T Documents, T 45, pages 277-278, MRI report dated 19 October 2016.
In December 2016 Ms Baranek had an ultrasound for right knee which showed there was nothing wrong other than mild degenerative enthesopathy of the distal insertional fibres of the patella tendon.[62]
[62] Exhibit 1, T Documents, T 49, page 301, ultrasound report dated 2 December 2016.
An MRI of Ms Baranek’s knee is October 2017 suggested “very early osteoarthritis”.[63]
[63]Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, Attachment – MRI report dated 18 October 2017.

Fibromyalgia

In July 2016 Ms Baranek was advised that she had been categorised as a category 2 outpatient at the rheumatology clinic Caboolture Hospital and that an appointment would be offered when one became available.[64]
[64]Exhibit 1, T Documents, T 42, page 258, letter from Caboolture Hospital to Ms Baranekeranek dated 21 July 2016.
In August 2016 Dr Elizabeth Headden reported that Ms Baranek had fibromyalgia and had been referred to a rheumatologist.[65]
[65] Exhibit 1, T Documents, T 42, pages 255 – 256, referral of Dr Headden dated 15 August 2016.
In October 2016 Ms Baranek was advised that she had been categorised as a category 2 outpatient at the Rheumatology Clinic Caboolture Hospital and that an appointment would be offered when one became available.[66]
[66]Exhibit 1, T Documents, T 45, page 283, letter from Caboolture Hospital to Ms Baranekeranek dated 25 October 2016.
In February 2017 Dr Guo confirmed that Ms Baranek had been diagnosed with fibromyalgia by a rheumatologist on 31^st of January 2017.
Dr James Gray, Registrar for Dr Mukhlesur Rahman, Rheumatologist, reported on 1 February 2017 that:[67]
[67] Exhibit 1, T Documents, T 52, page 320, Report of Dr Gray dated 1 February 2017.
(a)Ms Baranek has multiple features of chronic pain syndrome/fibromyalgia;
(b)Ms Baranek has had ongoing issues with fatigue, poor sleep and all over body pains;
(c)Ms Baranek has chronic neck and back pain;
(d)her other major issues are significant right knee pain with a diagnosis of patellofemoral osteoarthritis with an associated fusion ;
(e)Dr Gray was not convinced that the knee condition was inflammatory arthritis although still a possibility and he suspected it was predominantly osteoarthritis;
(f)Ms Baranek was currently seeing a physiotherapist and psychologist;
(g)he suggested she continue with a graded exercise program to try and help with the pain, sleep, fatigue and general well-being ;
(h)in addition to seeing the psychologist he suggested that it would be good for her to have hobbies or other distractions, alternatively she could try Endep but these often have a poor response; and
(i)she would be reviewed in 12 months time.
Following her diagnosis in May 2017 Ms Baranek was referred to the Pain Management Clinic at Royal Brisbane Women’s Hospital.[68]
[68] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, Attachment – Referral.

Abdomen

In October 2016 Ms Baranek had a CT scan of her abdomen and pelvis given that she was having abdominal pain, bloating, constipation and had a tender left flank. CT scan showed:[69]
prominent hepatic steatosis… Mild sigmoid diverticular disease cannot be excluded although no diverticulitis was evident. Uterine fibroid is suggested measuring up to 29 mm. I note previous ultrasound performed in 2013 showing the largest fibroid in the uterus measuring 18 mm.
[69] Exhibit 1, T Documents, T 45, page 276, CT report dated 17 October 2016.

Other

In September 2011 Dr Piotrowska-Hess reported that Ms Baranek:[70]
(a)had hypertension which she treated with diet and exercise and that the condition was well managed and caused minimal or limited impact on Ms Baranek’s ability to function; and
(b)had hypercholesterolaemia which she treated with diet and exercise and that the condition was well managed and caused minimal or limited impact on Ms Baranek’s ability to function.
[70] Exhibit 1, T Documents, T12 page 96, medical Report of Dr Piotrowska-Hess dated seven September 2011.
In June 2012 Dr Dao-Xuan Vo, General Practitioner, reported that Ms Baranek had uterine fibroids which was temporary and was awaiting an operation.[71]
[71] Exhibit 1, T Documents, T15, page 113, Medical certificate of Dr Vo dated 8 June 2012.
In May 2014 Dr Guo reported that Ms Baranek had: hypertension, hypercholesterolaemia, pain in her left elbow, pain in the right knee and iron deficiency but that these conditions were well-managed and causing minimal or limited impact on her ability to function.[72]
[72]Exhibit 1, T Documents, T20, page 127, Medical Report of Dr Guo dated 5 May 2014; T21, page 129, Patient Health Summary of Dr Guo dated 5 May 2014.
In August 2014 Dr Guo reported that Ms Baranek had hypertension, hypercholesterolaemia, iron deficiency, asthma and gastro-oesophageal reflux was generally well managed and caused minimal or limited impact on her ability to function.[73]
[73] Exhibit 1, T Documents, T25, page 156, Medical Report of Dr Guo dated 15 August 2014.
In November 2015 Dr Alfred Ngini referred Ms Baranek to a gynaecologist for consideration of a hysterectomy as she was having intense pelvic pain in relation to her fibroids.[74]
[74] Exhibit 1, T Documents, T 33, page 186, referral to Dr Lindsay Cochran dated 27 November 2015.

Conclusion on Impairments

The Secretary accepts that Ms Baranek suffers from a physical impairment for the purposes of section 94(1)(a) at the Qualification Period.[75]
[75] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, para 23.
In light of the above medical evidence the Tribunal finds that during the Qualification Period, Ms Baranek suffered from a Lumbar Spine Impairment, Cervical Spine Impairment and Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to the Right Knee Condition, there is evidence that Ms Baranek has patellofemoral osteoarthritis. However, the evidence also indicates that the degenerative changes are mild. There is no other evidence before the Qualification Period to establish whether this condition was fully treated, or stable during the Qualification Period. There is also insufficient corroborating evidence regarding how this condition has affected

Ms Baranek’s functional capacity during the Qualification Period. In 2014 Dr Guo indicated it was causing minimal or limited impact on Ms Baranek’s functional ability. Ms Baranek was not reviewed by an orthopaedic surgeon in relation to her right knee until October 2017, 11 months after the Qualification Period. Further, the orthopaedic surgeon recommended she see a podiatrist to get a lateral heel wedge and have injections.[76]Therefore the Right Knee Condition cannot be considered for the purposes of this DSP application.
[76]Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, Attachment – Report of Dr Hughes dated 23 October 2017.
In relation to the Fibroid Condition, Ms Baranek has been referred to a gynaecologist, however the condition was not treated during the Qualification Period. Therefore this condition cannot be considered for the purposes of this DSP application.
In relation to the Fibromyalgia Condition, Ms Baranek had been referred to a rheumatologist, but was not diagnosed with Fibromyalgia until after the Qualification Period. Further, even if it is accepted that the later diagnosis indicates that Ms Baranek did have fibromyalgia during the Qualification Period, she only commenced treatment after the Qualification Period. Therefore the Fibromyalgia Condition cannot be considered to have been fully treated and fully stabilised during the Qualification Period and therefore cannot be considered for the purposes of this DSP application.
In relation to Ms Baranek’s Heel Condition there is a lack of evidence, other than an ultrasound report, such that this Tribunal in unable to consider this condition for the purposes of this DSP application.
In relation to Ms Baranek’s potential diverticulitis condition there is a lack of evidence, most importantly a lack of a confirmed diagnosis, such that this Tribunal in unable to consider this condition for the purposes of this DSP application.
There is also evidence that Ms Baranek has osteoarthritis in her hips. However, there is no corroborating medical evidence of treatment or stabilisation during the Qualification Period. Therefore this condition cannot be considered for the purpose of this application.
In relation to Ms Baranek’s elbow pain, hypercholesterolaemia, hypertension, iron deficiency, asthma and gastro-oesophageal reflux conditions, the medical evidence indicates that this condition is having little or no impact on Ms Baranek’s ability to function and therefore cannot be considered as an Impairment for the purposes of the Act.

DO MS BARANEK’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?

The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[77] They are function based[78] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[79]
[77] Determination, s 4(2) and 5(2)(a).
[78] Determination, s 5(2)(b) and (c).
[79] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[80]
(a)Ms Baranek’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[80] Determination, see s 6(3).
Ms Baranek’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[81]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[81] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[82] the following must be considered:[83]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[82] For the purposes of ss 6(4)(a) and (b) of the Determination.
[83] Determination, see s 6(5).
A condition is fully stabilised[84] if:[85]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[86]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[84] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[85] Determination, see s 6(6).
[86] For reasonable treatment see s 6(7) of the Determination.

Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, Ms Baranek’s medical history, in relation to the condition causing the Impairments, must be considered.[87]

IS MS BARANEK’S LUMBAR SPINE IMPAIRMENT AND CERVICAL SPINE PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
[87] Determination, see s 6(2).

The medical evidence establishes that Ms Baranek was diagnosed with:
(a)osteoarthritis/degenerative disc disease of the lumbar spine;
(b)sciatica; and
(c)degenerative disc disease of the cervical spine.
The Secretary accepts that Ms Baranek’s Lumbar Spine Impairment has been fully diagnosed, however contends that it has not been fully treated and fully stabilised because:[88]
(a)Ms Baranek was referred to an orthopaedic surgeon on 22 October 2015 and remained on the waiting list during the Qualification Period;
(b)Dr Forbes, Occupational Physician, recommended weight loss and an exercise program for the cervical spine condition and yet there is no corroborating evidence before this Tribunal that Ms Baranek has undertaken this recommended treatment;
(c)Ms Baranek was not referred to a pain management clinic until after the Qualification Period and has been receiving ongoing rheumatology review, hydrotherapy, acupuncture and physiotherapy outside the Qualification Period.26
[88] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, paras 36-38.
The Tribunal acknowledges the evidence of Ms Baranek’s treating general practioners that the condition was likely to remain the same for the next two years and that in December 2015 Dr Headden reported that Ms Baranek had received all reasonable treatment as at September 2015. However, the Tribunal considers that given Dr Headden had referred Ms Baranek to an orthopaedic surgeon, it is possible that there may be further treatment available which would improve Ms Baranek’s ability to function. Dr Forbes reported that surgery was not indicated. It is unclear why he thought this and further, despite appearing to specialise in back conditions as a physician, he is not an orthopaedic surgeon. The evidence also shows that pain management is continuing. If Ms Baranek completes the treatment recommended by the pain management clinic and obtains a review by an orthopaedic surgeon where it is determined that there is nothing further than can be done to improve Ms Baranek’s situation, it is open to her to lodge a new DSP claim. Until that time it cannot be said that Ms Baranek’s lumbar spine impairment was fully treated and fully stabilised during the Qualification Period. As a result, no Impairment Rating can be assigned.

IS MS BARANEK’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). This element is satisfied because Ms Baranek was diagnosed by a clinical psychologist with persistent depressive disorder in April 2016. The Tribunal finds that Ms Baranek’s Mental Health Impairment was fully diagnosed.
The Tribunal notes the evidence of Dr Zhao-O’Brien that Ms Baranek’s condition will require long-term therapy and is chronic and therefore accepts that the Mental Health Impairment was permanent for the purposes of the Act during the Qualification Period. Therefore, an Impairment Rating can be assigned.
The Secretary concedes that Ms Baranek’s Mental Health Impairment was fully diagnosed, treated and stabilised during the qualification period.[89]
[89] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, para 41.

Using the Impairment Tables

The level of impact of Ms Baranek’s Impairment needs to be assessed against the descriptors[90] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[91]
[90] Determination, see ss 3 and 5(3).
[91] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[92]
[92] Determination, see s 6(1).
The Determination provides that:
(a)the following information must into account in applying the Tables:[93]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)the following information must not be taken into account in applying the Tables:[94]
(i)symptoms reported by Ms Baranek in relation to her condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Baranek’s local community.
[93] Determination, see s 7.
[94] Determination, see s 8.
Which Tables are appropriate is determined by:[95]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[95] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[96]
[96] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[97]
[97] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[98]
[98] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[99]
[99] Determination, see s 11(5).

Relevant Impairment Table and Impairment Rating

Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-Report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 5 points are:
(1)       The person has mild difficulties with most of the following:
(a)       self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)       social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)       concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulty completing education or training.
(e)       behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)       work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
The Secretary contends that an Impairment Rating of no more than 5 points under Table 5 of the Impairment Tables during the qualification period is appropriate because:[100]
[100] Exhibit 2, Secretary's Statement of Facts and Contentions dated 9 February 2018, paras 42-46.
(a)Ms Baranek experienced mild difficulties with social / recreational activities and travel, interpersonal relationships, concentration and task completion and behaviour, planning and decision making, satisfying descriptors (1)(b) - (e) of the 5 point rating;
(b)it is consistent with the 5 point rating assigned by Dr Headden in the Basic Rights Queensland questionnaire completed on 8 December 2015;[101]
[101]Exhibit 1, T Documents, T 34, pages 191 – 193, Basic Rights Queensland Questionnaire completed by Dr Headden dated 8 December 2015.
(c)consistent with the reports of Ms O'Neill that Ms Baranek was experiencing limited social connection; low motivation and energy levels; unrefreshing sleep; feelings of emptiness; poor concentration and excessive worry;
(d)Ms Baranek reported to the JCA on 13 September 2016 that she only leaves the house for medical appointments, occasionally suffers from panic attacks when required to drive, has very limited social contacts and has difficulty with concentration and memory;[102]
(e)Ms Baranek told the SSCSD that she:
(i)lives alone and is independent in terms of self-care and living;
(ii)has a number of friends who call by for a chat and coffee;
(iii)is able to drive locally;
(iv)has made a number of friends in the neighbourhood with whom she maintains regular contact;
(v)attends the library on a regular basis with her friend; and
(vi)occupies herself with hobbies such as reading, knitting, watching television, listening to music and using the internet.
[102] Exhibit 1, T Documents, T43, page 266, JCA report dated 16 September 2016.
The Tribunal agrees with the Secretary that the corroborating evidence concerning the impact of Ms Baranek’s Mental Health Impairment on her ability to function warrants an Impairment Rating of 5 points under Table 5. Ms Baranek agreed at the hearing with Dr Headden’s assessment that 5 points under Table 5 was appropriate.

WERE MS BARANEK’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?

To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Ms Baranek’s permanent Impairment only attracted a 5-point impairment rating, and therefore she does not satisfy section 94(1)(b).

DID MS BARANEK HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?

As the Tribunal has concluded that Ms Baranek’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period it is not necessary to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) of the Act.

CONCLUSION

Ms Baranek’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period and as a result she did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 116 (one hundred and sixteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 23 April 2018

Date of hearing: 21 March 2018

Date final submissions received: 29 March 2018

Applicant: In person

Interpreter for the Applicant:

Advocate for the Respondent

Ms Anna Machalica-Szajner

Mr Jake Kyranis

Solicitors for the Respondent Department of Human Services

[2018] AATA 967

23 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Statutory Construction

Procedural Fairness

Date of hearing:	21 March 2018
Date final submissions received:	29 March 2018
Applicant:	In person
Interpreter for the Applicant: Advocate for the Respondent	Ms Anna Machalica-Szajner Mr Jake Kyranis
Solicitors for the Respondent	Department of Human Services