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

Berry and Secretary, Department of Social Services (Social services second review) [2018] AATA 34 (16 January 2018)
Division:GENERAL DIVISION
File Number: 2017/0549
Re:Michele Berry
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:16 January 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................................................................
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 is 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
16 January 2018
INTRODUCTION

On 11 March 2016 Ms Berry lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·           Severe osteoarthritis of both hips and knees
·           Genetic thrombophilia with recurrent blood clots in legs and lungs
·           Cervical spondylosis with multiple cervical disc prolapse indenting the cervical cord
·           Depression/anxiety.
[1]        Exhibit 1, T Documents, T31, page 134, Ms Berry’s Claim for DSP dated 11 March 2016.
Ms Berry claims that her medical conditions affect her ability to work because she has trouble concentrating, and difficulty sitting, because she has severe neck, back and knee pain and also clots.[2]
[2] Exhibit 1, T Documents, T31, page 135, Ms Berry’s Claim for DSP dated 11 March 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Ms Berry’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T 34, pages 147 – 148, Rejection of claim for DSP dated 31 May 2016.
Claim History
Ms Berry 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
[4] Exhibit 1, T Documents, T 37, pages 151 – 156, Decision of ARO dated 12 August 2016.
Ms Berry’s medical 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, and she did not meet the program of support requirements.[4]
Ms Berry then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD affirmed the ARO’s decision on 5 January 2017.[5]
[5] Exhibit 1, T Documents, T2, pages 4 – 13, SSCSD’s Decision and Reasons for Decision dated 5 January 2017.
Ms Berry has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1–3, Application for Review of Decision dated 21 January 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 Berry must have a physical, intellectual or psychiatric impairment; and
(b)Ms Berry’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]; and
(c)Ms Berry has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Berry meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 11 March 2016), unless Ms Berry 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 Berry must have met the Section 94 Requirements between 11 March 2016 and 10 June 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 Berry’s impairments after the Qualification Period can be considered, if it “cast[s] light on” the functional impact of the impairments during the Qualification Period.[9]
DID MS BERRY HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[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].
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]
Ms Berry’s medical conditions
[10] Determination, s 3.
Cervical Spine
In May 2012 Ms Berry was having neck pain with radiation to her arms and numbness after a recent accident and had a CT scan of her cervical spine. The CT scan demonstrated that there was a small central disc protrusion at C2-3 but without evidence of nerve root compression or compression of the spinal cord, a small central disc protrusion with some emphasis on the right side but no obvious nerve root compression, and posterior osteophytes from the uncovertebral joints causing narrowing of the exit foramen bilaterally.[11]
[11] Exhibit 1, T Documents, T4, page 56, CT report dated 18 May 2012.
In July 2012 Ms Berry then had:[12]
(a)an x-ray of her face in July 2012 which showed no evidence of radiopaque foreign bodies; and
(b)an MRI of her cervical spine which found a loss of lordosis with reversal of curvature, cervical discs which appeared desiccated with reduced C3/4 – C5/6 disc height, T2 hyperintense annular tear seen posteriorly in C4/5 – C5/6 discs and mild thickening of the posterior longitudinal ligament seen at C4/5 – C6/7.
[12] Exhibit 1, T Documents, T6, page 58, X-Ray and MRI report dated 16 July 2012.
A further x-ray and MRI of Ms Berry’s cervical spine was undertaken in September 2012 and found:
(a)multilevel disc disease including posterocentral disc herniation at C3/4 is indenting the cervical cord and prominent diffuse disc herniation at C5/6 indenting the cord and encroaching upon bilateral C6 neural foramen with indentation of both the C6 exiting nerve roots[13] and
(b)reversal of cervical lordosis but no frank changes of myelopathy and no compression fracture or any frank malalignment.[14]
[13] Exhibit 1, T Documents, T7, page 59, MRI report dated 11 September 2012.
[14] Exhibit 1, T Documents, T7, page 60, X-Ray report dated 11 September 2012.
Ms Berry was reviewed by Dr Gert Tollesson, Brain and Spiral Neurosurgeon, in September 2012. Dr Tollesson reported that:
(a)Ms Berry’s prognosis, for her cervical radiculopathy, with conservative treatment would not be successful due to her relatively severe disc degeneration and bilateral foraminal stenosis at the level C5/C6;
(b)he believed that Ms Berry would have a good outcome after her cervical spinal surgery and would most likely be able to return to her pre-accident duties and normal living activities 6 weeks after surgery;
(c)the proposed surgery is for an anterior, cervical discectomy and fusion at the levels C5/C6; and
(d)the surgery was scheduled to take place in October 2012.[15]
[15] Exhibit 1, T Documents, T8, pages 61 – 63, Report of Dr Tollesson dated 13 September 2012.
Ms Berry obtained a second opinion regarding the recommendation of cervical spine surgery from Associate Professor Bruce McPhee, Spinal Surgeon, on 30 October 2012. In Associate Professor McPhee’s opinion:[16]
…while surgery is a treatment option it is largely theoretical with limited value. I would not consider that Ms Berry is a good candidate due to confounding factors and widespread degenerative changes in the neck which will not be addressed by the proposed surgery. She is definitely a patient that should go through an intensive rehabilitation program initially reinforced by cognitive behavioural therapy. She will not improve as long as the pessimism of “a glass half empty” continues.
[16] Exhibit 1, T Documents, T 13, page 73, Report of Associate Professor Bruce McPhee dated 30 October 2012.
In February 2013 Dr Nima Nemati, General Practitioner, reported that Ms Berry was experiencing neck pain radiating to her shoulders and numbness in both hands and was due to see a neurosurgeon in February and again in March for the purposes of obtaining surgery.[17]
[17] Exhibit 1, T Documents, T 16, page 82, Medical Certificate of Dr Nemati dated 1 February 2013.
In March 2013 Ms Berry was reviewed by Dr Scott Campbell, Neurosurgeon, for the purposes of a medico-legal report arising out of her motor vehicle accident. In Dr Campbell’s opinion:[18]
(a)Ms Berry has chronic soft tissue muscular ligamentous injury to her cervical and lumbar spine;
(b)at 10 months post injury her condition had reached maximum medical improvement and it was unlikely there would be any significant alteration in her symptoms in the future;
(c)no further specific treatment is required apart from rest, the passage of time and avoidance of aggravating factors;
(d)it is very unlikely Ms Berry would benefit from any surgical intervention as her main complaint is neck pain; and
(e)Ms Berry’s prospects of returning to gainful employment in the future were “guarded to poor due to difficulties with sitting, bending, reaching and lifting”.
[18] Exhibit 1, T Documents, T 17, pages 83 – 88, Report of Dr Campbell dated 4 March 2013.
In July 2015 Dr Salahaldin Arif, General practitioner, reported that Ms Berry:[19]
(a)was still having neck pain radiating to both arms as a result of her cervical spondylosis;
(b)was likely to show considerable improvement within 2 years; and
(c)was taking painkillers for the neck pain and having physiotherapy.
[19] Exhibit 1, T Documents, T-20, page 94, Report of Dr Arif dated 9 July 2015.
Lumbar Spine, Pelvis, Hips
In May 2012 Ms Berry had an x-ray of her lumbosacral spine, pelvis and right hip. The x- ray report records that Ms Berry had a crash 30 years ago which resulted in multiple fractures in her pelvis and then another crash in May 2012 which aggravated her lower back and hip pain. The x-ray report indicated that, among other things:[20]
(a)there was degenerative change in the lumbosacral spine and mild scoliosis but no evidence of spondylolisthesis; and
(b)there was degenerative arthritis in the right hip with irregular and sclerotic articular margins of the right hip and osteophytic spurring on both hips.
[20] Exhibit 1, T Documents, T5, page 57, X-Ray report dated 31 May 2012.
In January 2016 Ms Berry was referred to an Orthopaedic Specialist for review at Rockhampton Hospital.[21] Ms Berry was reviewed by Dr Rishi Kausal, Orthopaedic Specialist at Rockhampton Hospital, on 4 February 2016. Dr Kausal reported that:[22]
[21] Exhibit 1, T Documents, T 26, page 101, Letter from Rockhampton Hospital Orthopaedic Department to Ms Berry
dated 13 January 2016.
[22] Exhibit 1, T Documents, T 29, pages 105 – 106, Report of Dr Kaushal dated 17 February 2016.
(a)Ms Berry would be a very high-risk candidate for any kind of surgery if at all as she has had recurrent deep vein thrombosis and pulmonary embolisms in the past due to an underlying genetic disorder;
(b)Ms Berry has been on Rivaroxaban, Warfarin and now Clexane to control these episodes;
(c)a recent ultrasound scan on her leg still detects a thrombus extending to her popliteal vein;
(d)Ms Berry is on the slightly larger size with a BMI of about 42 which only adds to any of these risks;
(e)Rockhampton Hospital is not credentialled to carry out serious surgery on people with a BMI over 40;
(f)he had encouraged Ms Berry to be referred to Physiotherapists and Dietitians for a weight loss program and to continue her conditioning exercises on her knee and on her hip;
(g)he had put in place an anaesthetic referral for her to be reviewed for assessment with regards to quantifying the risks with surgery;
(h)if she needs to pursue the surgical option he would have to refer her to a higher centre in Brisbane, given the fact that all of these co-morbidities increase the risk of her getting a complication which could add to her morbidity; and
(i)Ms Berry was quite keen on exploring whether she should be able to access the disability pension and he would support her endeavour and would be happy for his report to be used in terms of support.
In June 2016 Ms Berry had a further CT scan of her lumbosacral spine which found degenerative changes in the spine with osteophytic spurring in the lumbar vertebral bodies.[23]
[23] Exhibit 1, T Documents, T 35, page 149, CT report dated 29 June 2016.
In December 2016 Ms Nerida Wirriganwalters, Employment Consultant at Gladstone Community Solutions, reported that:[24]
[24] Exhibit 1, T Documents, T 41, page 165, Report of Ms Wirriganwalters dated 21 December 2016.
(a)she had been working with Ms Berry over the past 4 years on the Disability Management Service Program and the Employment Support Service Programs;
(b)despite Ms Berry’s best efforts and her desire to eventually return to the workforce, her conditions have deteriorated significantly over this period of time;
(c)on the basis of our observations and recommendations of her general practitioner and specialists we have determined that a duty of care precludes finding any employment for her, either now or in the future;
(d)Ms Berry suffers severe chronic pain as a result of injuries to a resultant degeneration of the neck and back as well as to her knees;
(e)Ms Berry’s conditions impact significantly on her mobility and her range of motion causing extreme physical limitations;
(f)Ms Berry is no longer able to walk unaided and has over the past year gone from walking with a cane to the use of a wheeled walker;
(g)as her condition had worsened over the last 12 months she has also had to engage the services of a Personal Support Worker from Blue Care to assist her with showering, dressing and house work;
(h)Ms Berry is unable to stand unaided in the shower and has a special chair for assistance in the shower;
(i)due to the very high risks of pulmonary embolism as a result of the DVT in her legs, her specialists have stated that surgical intervention for any of her conditions is not recommended and will not be recommended at any time in the future;
(j)it is indicated that Ms Berry’s condition is fully diagnosed, treated and stabilised and is unlikely to improve significantly over the next 24 months and longer, with or without intervention;
(k)Ms Berry’s conditions are having an extreme impact on her functional capacity and this is borne out by her need to engage support services for personal care and assistance with showering, dressing and day-to-day tasks; and
(l)Ms Berry’s inability to do things for herself has exacerbated her mental health condition and caused a worsening of depressive symptoms and she has been referred to a psychology wellness centre.
Right leg
In September 2015 Ms Berry had a Venous Doppler ultrasound of her right lower leg which gave the impression that she had an occlusive thrombosis in the posterior tibial vein of the right lower extremity.[25]
[25] Exhibit 1, T Documents, T 21, page 95, Venous Doppler Ultrasound Report dated 23 September 2015.
In December 2015 Ms Berry was referred to the Haematology Clinic at Gladstone Hospital and an appointment was scheduled for 13 January 2016.[26]
[26] Exhibit 1, T Documents, T 23, page 97, Letter from Gladstone Hospital to Ms Berry dated 7 December 2015.
On 8 January 2016 Ms Berry presented to the Emergency Department at Gladstone Hospital with pluritic chest pain with a swollen, tender and painful right calf and was diagnosed with deep venous thrombosis of the lower limb.[27] Dr Arif’s referring letter to the Emergency Department reported that Ms Berry had had multiple recurrent deep vein thrombosis due to genetic thrombophilia with multiple previous hospital admissions.[28]
[27] Exhibit 1, T Documents, T 24, page 98, Discharge letter of Gladstone Hospital Emergency Department dated 8
January 2016.
[28] Exhibit 1, T Documents, T 25, page 99-100, Referral letter from Dr Arif to Gladstone Hospital Emergency
Department dated 8 January 2016.
Dr Arif reported in February 2016 that Ms Berry:[29]
(a)had knee osteoarthritis;
(b)had severe knee pain and stiffness and was having recurrent blood clots in her legs and lungs;
(c)was being reviewed by Haematologist and Orthopaedic Specialist will have leg surgery soon; and
(d)was taking blood thinners and painkillers.
[29] Exhibit 1, T Documents, T 30, page 107, Medical Certificate of Dr Arif dated 26 February 2016.
In April 2016 Dr Kaushal referred Ms Berry to Professor Ross Crawford, Orthopaedic Specialist, for review. Dr Kaushal, in his referral, noted that Ms Berry requires a knee replacement but that it would be a very high risk for a regional centre like Rockhampton, given her strong history of recurrent VTE (venous thromboembolism episodes).[30]
[30] Exhibit 1, T Documents, T 32, page 139, Referral from Dr Kaushal to Professor Crawford dated 28 April 2016.
In September 2016 Dr Arif reported that:[31]
Ms Michelle Berry is suffering from recurrent Deep Vein Thrombosis and Pulmonary Embolisms. She is having a genetic condition which predisposes her for recurrent blood clots. For this reason she is on lifelong anticoagulation medications (blood thinners). This condition has led to chronic changes in the veins of both legs. This medical condition is incurable, permanent and stable condition. There is no other treatment available and her condition is stabilised on medication. I believe this should be evaluated as permanent disability as it is lifethreatening, incurable and stable condition.
[31] Exhibit 1, T Documents, T 38, page 157, Report of Dr Arif dated 14 September 2016.
Right ankle
In June 2016 Ms Berry had an x-ray of her right ankle which indicated an old ununited fracture in the medial malleolus with adjacent loose bones, deformity in the distal fibular shaft above the level of the ankle joint, and bony spurs in the calcaneum at the attachment of plantar fascia with a larger spur at the insertion of Achilles tendon.[32]
[32] Exhibit 1, T Documents, T 35, page 149, CT report dated 29 June 2016.
Ms Berry was referred for review with an Orthopaedic Specialist in or around July 2016 and was placed on the orthopaedic clinic’s waiting list as a category 3 patient.[33]
[33] Exhibit 1, T Documents, T 36, page 150, Letter from Gladstone Hospital to Dr Arif dated 1 July 2016.
Depression
In September 2012 Ms Berry’s General Practitioner, Dr Nima Nemati informed Dr Tollesson that Ms Berry had depression and had attempted suicide, but that she was now in a stable mental condition and her depression was under control.[34]
[34] Exhibit 1, T Documents, T8, page 61-63, Report of Dr Tollesson dated 13 September 2012.

In October 2012 Associate Professor McPhee reported that: “[c]ontrary to advice there is clear evidence of clinical depression since at one stage during the interview she broke down. Under the circumstances, medical treatment of this condition with Amitriptyline would be appropriate and would probably also have a pain relieving effect. Questionnaires identify an excessively high level of stress while Yellow Flag Questionnaires identify fear avoidance beliefs and psychological issues as potential risk factors in a continuing chronic-pain syndrome.[35]”
[35] Exhibit 1, T Documents, T13, page 69-74, Report of Associate Professor McPhee dated 30 October
2012.
In July 2015 Dr Arif reported that Ms Berry:[36]
(a)had depression and stress reaction which was resulting in Ms Berry being in a low mood, crying all the time, having poor sleep and being tired all the time;
(b)was having psychology counselling and taking antidepressants; and
(c)was likely to show considerable improvement within 2 years.
[36] Exhibit 1, T Documents, T-20, page 94, Report of Dr Arif dated 9 July 2015.
In or around September 2016 Ms Berry was referred to a Psychology Centre and was awaiting allocation to a psychologist.[37]
[37] Exhibit 1, T Documents, T 39, page 158, Letter from Psychology Wellness Centre dated 30 September 2016.
Conclusion on Impairments
The Secretary accepts that Ms Berry suffers from physical impairments for the purposes of section 94(1)(a) at the Qualification Period.[38]
[38] Exhibit 2, Secretary's Statement of Facts and Contentions dated 16 November 2017, para 22.
In light of the above medical evidence the Tribunal finds that during the Qualification Period, Ms Berry suffered from a Cervical Spine Impairment, Lumbar Spine Impairment, Hip (Arthritis) Impairment, Right Leg (DVT/Genetic Thrombophilia) Impairment, Knee (Osteoarthritis) Impairment and Ankle 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 Ms Berry’s depression, 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).
There is no evidence of any diagnosis having been made by a clinical psychologist or psychiatrist prior to or during the Qualification Period. While Dr Arif refers to Ms Berry having psychology counselling in July 2015, there is no evidence or medical report from a psychologist at that time. Ms Berry also had not had reasonable treatment for her mental health conditions, such that it could be said that her mental health conditions were fully stabilised during the Qualification Period and had only been referred to a psychologist after the Qualification Period. Ms Berry told the Tribunal that as at December 2017 she had not had a consultation with a psychologist or psychiatrist. As a result, no impairment rating can be assigned in relation to Ms Berry’s mental health condition.
In relation to the Ankle Impairment, as Ms Berry was still on a waiting list to be reviewed by an Orthopaedic Specialist, the condition was not fully treated and stabilised during the Qualification Period. Therefore, the condition cannot be considered for the purpose of this application.
DO MS BERRY’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.[39] They are function based[40] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[41]
[39] Determination, ss 4(2) and 5(2)(a).
[40] Determination, ss 5(2)(b) and (c).
[41] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[42]
(a)Ms Berry’s condition/s causing that impairment are “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.
[42] Determination, see s 6(3).
Ms Berry’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[43]
(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.
[43] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed”[44] by an appropriately qualified medical practitioner and whether it has been “fully treated”[45] the following must be considered:[46]
(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.
[44] For the purposes of s 6(4)(a) of the Determination.
[45] For the purposes of ss 6(4)(a) and (b) of the Determination.
[46] Determination, see s 6(5).
A condition is “fully stabilised”[47] if:[48]
(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[49]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[47] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[48] Determination, see s 6(6).
[49] 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.
Are Ms Berry’s Cervical and Lumbar Spine Impairments Permanent and Likely to Persist For At Least 2 Years?
The medical evidence establishes that Ms Berry’s Cervical Spine Impairment is permanent. The Secretary accepts that Ms Berry’s Cervical Spine Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[50]
[50] Exhibit 2, Secretary's Statement of Facts and Contentions dated 16 November 2017, para 31.
The medical evidence of Dr Campbell and Dr Kaushal indicates that there is no further specific treatment available for Ms Berry (particularly given her deep vein thrombosis and pulmonary embolism condition) and she has reached maximum medical improvement with respect to her cervical spine. Therefore, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Ms Berry’s Impairment needs to be assessed against the descriptor[s][51] (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).[52]
[51] Determination, see ss 3 and 5(3).
[52] 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.[53]
[53] Determination, see s 6(1).
The Determination provides that the following information must be taken into account in applying the Tables:[54]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[54] Determination, see s 7.
The following information must not be taken into account in applying the Tables:[55]
(a)symptoms reported by Ms Berry in relation to her condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors, such as the availability of suitable work in Ms Berry’s local community.
[55] Determination, see s 8.
Which Tables are appropriate are determined by:[56]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[56] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[57]
[57] 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.[58]
[58] 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.[59]
[59] 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.[60]
[60] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The relevant Tables of the Determination for the purposes of assigning an impairment rating to Ms Berry’s Spinal Impairments is Table 2, which deals with upper limb function, and Table 4 which deals with spinal function.
Table 4 – Spinal Function
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a 5-point rating the corroborating evidence would need to show that
Ms Berry has some difficulty in:
(a)activities over head height (e.g. activities requiring [Ms Berry] to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning [her] trunk or moving [her] head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that

Ms Berry:
(1) …is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[she] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[she] has difficulty moving [her] head to look in all directions (e.g. turning [her] head to look over [her] shoulder); or
(c)[she] is unable to bend forward to pick up a light object placed at knee height; or
(d)[she] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20-point rating the corroborating evidence would need to show that

Ms Berry:
(1) …is unable to:
(a)perform any overhead activities; or
(b)turn [her] head, or bend [her] neck, without moving [her] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Table 2 - upper limb function
The Introduction to Table 2 of the Determination provides:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·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;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
To obtain a 5-point rating the corroborating evidence would need to show that
Ms Berry can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)       handling very small objects (e.g. coins);
(c)      doing up buttons;
(d)       reaching up or out to pick up objects.
To obtain a 10-point rating the corroborating evidence would need to show that
Ms Berry has difficulty with most of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
To obtain a 20-point rating the corroborating evidence would need to show that most of the following apply to Ms Berry:
(a)[she] has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)[she] has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)       [she] has difficulty using a computer keyboard despite appropriate adaptations;
(d)       [she] has severe difficulty using a pen or pencil;
(e)       [she] has severe difficulty turning the pages of a book without assistance.
Evidence of impact on function as at the Qualification Period
In October 2012 Associate Professor McPhee reported that:[61]
[61] Exhibit 1, T Documents, T 13, pages 69 – 74, Report of Associate Professor McPhee dated 30 October 2012
·Ms Berry rated her neck pain at 11 out of 10;
·pain is worse with any movement;
·Ms Berry’s hand function was not affected;
·Ms Berry still able to write, use a knife and fork and do up buttons;
·movements of her neck are grossly restricted;
·her neck pain is aggravated by jarring;
·she spends half a day or more at rest;
·personal care is independent;
·she has help from her house guest and mother;
·she can do menial tasks such as washing dishes, limited cooking but little else;
·she does not shop or drive a car;
·she is able to walk on her heels and toes and semi-squat;
·she demonstrated a full range of lumbar spine movements being able to flex to 90° to her toes;
·examination of the cervical spine showed a range of movement that was about half of normal in all planes;
·examination of the upper extremities showed a full range of movements in all the major joints; and
·clinically there is restriction of all movements of the neck.
In March 2013 Dr Campbell reported that:[62]
·Ms Berry has daily neck pain which she rates up to 9/10 on the Visual Analogue Scale;
·the pain radiates down to the interscapular region, across to the shoulders and up to the sub-occipital region causing headaches;
·she has intermittent numbness of the hands;
·she has lower back pain once a week which is mild;
·the neck pain and lower back pain is aggravated by lifting weights greater than 8 kg, bending to vacuum, reaching to clean, trimming the lawn, pro-longed sitting and long distance plane/train travel;
·her cervical spine has decreased extension by 50%;
·lateral flexion to the left and right reduced by 30%; and
·she had a full and normal range of movements of the lumbar spine.
[62] Exhibit 1, T Documents, T 17, pages 83 – 88, Report of Dr Campbell dated 4 March 2013.
The JCA reported in May 2016 that:[63]
[63] Exhibit 1, T Documents, T 33, pages 141 and 143 – 144, JCA report dated 12 May 2016.
·Ms Berry has chronic pain and reduced range of movement of the neck and lower back;
·Dr Campbell reported that she “is likely to continue to manage her symptoms through rest, the passage of time and avoidance of aggravating factors”;
·Ms Berry said:
oshe had paraesthesia in both hands and experiences intermittent headaches;
oshe avoids reaching overhead due to increased neck pain;
oshe no longer hangs out her washing due to the likely aggravation of pain symptoms;
oshe was able to bend forward to pick up a light object from a desk or table;
·the medical evidence indicates Ms Berry’s symptoms are aggravated by activities involving reaching;
·Ms Berry is unlikely to be capable of sustaining overhead activities due to ongoing pain symptoms;
·Ms Berry can perform some overhead activities if required to and was observed to be able to turn her head and bend her neck without moving her trunk; and
·Ms Berry was observed to have a sitting tolerance of more than 10 minutes.
The JCA concluded that an impairment rating of 10 points under Table 4 was appropriate for Ms Berry’s Spinal Impairment.

The Secretary submitted in its Statement of Facts and Contentions that there was no contemporaneous medical evidence corroborating the level of functional impairment suffered by Ms Berry during the Qualification Period and that therefore no Impairment Rating can be assigned.[64] However, it can be seen that the medical evidence provided by Dr Campbell and Associate Professor McPhee are at least indicative of the functional impact of Ms Berry’s Spinal Impairment and are not contrary to the findings of the JCA. In the circumstances, the Tribunal will do the best it can on the evidence available to it to assign an Impairment Rating.
[64] Exhibit 2, Secretary's Statement of Facts and Contentions dated 16 November 2017, paragraph 32.
Given the evidence available, the Tribunal finds that:
(a)an Impairment Rating of 5 points is appropriate under Table 2, given that Ms Berry has difficulty with picking up heavier objects and reaching out or up to pick up objects; and
(b)an Impairment Rating of 10 points is appropriate under Table 4, given that Ms Berry is unable to sustain overhead activities, has difficulty moving her head and has some difficulty bending forward to objects lower than waist height.
There is no corroborating evidence that Ms Berry is unable to:
(a)perform any overhead activities;
(b)turn her head or bend her neck without moving her trunk;
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes; and
therefore a 20 point impairment rating under Table 4, as contended for by Ms Berry, is inappropriate.
Are Ms Berry’s Knee, Hip and Ankle Impairments Permanent and Likely to Persist For At Least 2 Years?
The Secretary contends that Ms Berry’s Knee and Hip Impairments were fully diagnosed but not fully treated and stabilised during the Qualification Period, because those conditions were subject to ongoing specialist review, including investigations to quantify the risk of surgery for a total hip/total knee arthroplasty given Ms Berry’s DVT.[65]
[65] Exhibit 2, Secretary's Statement of Facts and Contentions dated 16 November 2017, paragraphs 40 – 44.
At the hearing Ms Berry confirmed that she had hip replacement surgery in April 2017 and knee replacement surgery in August 2017.
The Tribunal finds that the medical evidence supports a finding that Ms Berry’s knee and hip and ankle conditions were fully diagnosed. In relation to the knee and hip conditions the only treatment that seems to be recommended is one of a knee replacement and hip replacement. However, because this treatment was not undertaken until this year, outside the Qualification Period, Ms Berry’s Knee and Hip Impairments were not fully treated and fully stabilised as required by the Act. Therefore, no Impairment Rating can be assigned. Ms Berry told the Tribunal that she had improved since the surgeries, although she still had some pain. In the event that these Impairments are still causing Ms Berry difficulty and have now been fully treated and are fully stabilised, it is open to Ms Berry to reapply for DSP.
Is Ms Berry’s Genetic Thrombophilia and DVT Impairment Permanent and Likely to Persist For At Least 2 Years?
The Secretary contends that Ms Berry’s Genetic Thrombophilia and DVT Impairment was fully diagnosed but not fully treated and stabilised during the Qualification Period because she had only been seen by a Haematologist less than two months prior to her claim for DSP and that Ms Berry told the JCA in May 2016 that her specialist had changed her medications within the past week.[66]
[66] Exhibit 2, Secretary's Statement of Facts and Contentions dated 16 November 2017, paragraphs 46 – 47; T 33,
page 141, JCA report dated 12 May 2016.
Ms Berry has recurrent DVT and a genetic condition that will not go away with treatment. Whilst anticoagulant medications can assist with reducing the number of blood clots (which is to ensure that she does not suffer from a life-threatening embolism) it is unclear whether this will impact on the effect the condition may be having on her ability to function. Ms Berry told the JCA in May 2016 that she hoped the medication change would have a positive effect and Dr Arif indicated that surgery was still being considered at that stage.[67]
[67] Exhibit 1, T33, page 141, JCA Report dated 12 May 2016.
In the circumstances the Tribunal finds that Ms Berry’s Genetic Thrombophilia and DVT Impairment was fully diagnosed and fully treated but that it was not fully stabilised for the purposes of the Act.
The Tribunal notes also that there is no corroborating evidence of how this condition impacts on Ms Berry’s ability to function and therefore no impairment rating would be able to be assigned.
WERE MS BERRY’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 Berry’s Permanent Impairments only attract a 15 point Impairment Rating for the purposes of the Act and, and therefore she does not satisfy section 94(1)(b).
In the event that her conditions have deteriorated and stabilised since the Qualification Period, as is indicated by Ms Wirriganwalters (see para 22 above), it is open to Ms Berry to reapply for DSP.

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

As the Tribunal has found that Ms Berry’s Impairments were either not permanent or did not attract a 20 point Impairment Rating during 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 section 94(1)(c) of the Act at that time.
DECISION
Ms Berry’s claim fails because she did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 85 (eighty - five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

........................................................................
Associate
Dated: 16 January 2018

Date of hearing: 20 December 2017

Advocate for the Applicant: Velvet Harris

Solicitors for the Respondent: Department of Human Services

[2018] AATA 34

16 January 2018

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	20 December 2017
Advocate for the Applicant:	Velvet Harris
Solicitors for the Respondent:	Department of Human Services