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

Born and Secretary, Department of Social Services (Social services second review) [2017] AATA 600 (5 May 2017)
Division:GENERAL DIVISION
File Number: 2016/4603
Re:Tania Born
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member J Sosso
Date:5 May 2017
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – points allocation – whether conditions attract points under the Impairment Tables – relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 26, 94
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 922

Gallacher v Secretary, Department of Social Security
[2015] FCA 1123

Shi v Migration Agents Registration Authority
(2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011
REASONS FOR DECISION
Senior Member J Sosso
5 May 2017
INTRODUCTION

Tania Born (the Applicant) seeks a review of a decision of 1 August 2016 by the Social Services and Child Support Division of this Tribunal (AAT1) which rejected the Applicant’s claim for the disability support pension (DSP).
Member Green found that the Applicant had a total impairment rating of 10 points and, as such, was ineligible to receive the DSP.
The Applicant lodged her claim for the DSP on 5 November 2015 – Exhibit 1 T8 p.69. She was referred to a Job Capacity Assessor (JCA) for assessment. The JCA determined that the Applicant had both a shoulder/upper arm condition and depression, but did not assign any impairment ratings and was of the view that the Applicant could work at least 23 hours per week with intervention – Exhibit 1 T31 pp. 189-195.
The Applicant’s claim was rejected on 22 February 2016 – Exhibit 1 T9 p.100.
This decision was reviewed by an Authorised Review Officer (ARO). The ARO affirmed the decision, but found that the Applicant’s left arm condition was fully diagnosed, treated and stabilised and awarded her 10 points under Table 2 of the Impairment Tables.
The Applicant applied for a further review which was dealt with by AAT1.
The Applicant was self-represented, but was assisted by her husband Stephen. A hearing was conducted on 30 March 2017. The Applicant participated by means of conference telephone. The Secretary, Department of Social Security (the Respondent) was represented by Ms. Jasmine Forsyth, who also participated by conference telephone.
The hearing was conducted on a day when Brisbane was experiencing flooding and associated issues as a result of Cyclone Debbie. This resulted in some minor technical and logistic problems, but did not impede or constrict the hearing.
The sole issue to be determined is whether the Applicant was qualified to receive the DSP at the date she made her claim (5 November 2015) or 13 weeks thereafter (the qualification period).
BACKGROUND
The Applicant was 51 years of age when she made her claim. The current claim is the latest in series of applications for the DSP. The Social Security Appeals Tribunal decided on 6 November 2014 that the Applicant’s shoulder condition could attract 10 points and rejected her application. This was followed by a further rejection of another claim by Member Letch of this Tribunal on 21 October 2015. Again, only a total of ten points was allocated.
The Applicant did not specify in her claim her ailments. In response to Question 168 “List any disabilities, illnesses or injuries that you have”, the Applicant supplied no information – Exhibit 1 T8 p.95. However, in response to a later question as to how the treatment she is receiving for her ailments affected her ability to work or study she said: “Can’t write or use computers for long periods.”
The Applicant was previously employed as a vehicle driver (Rail Operation II) with QR National. She suffered a work related injury in October 2009. Dr Peter Boys, an Orthopaedic Surgeon, examined the Applicant on 24 November 2009 and provided a medical report to Queensland Rail. In his report, Dr Boys made the following observations (Exhibit 1 T 13 pp.126-127):
“Ms Born describes a strain experienced in the left pectoral girdle in the course of training activities at shunting school over a day or two prior to 13 October 2009. She describes during this period performing repetitious heavy activities including practical use of railway couplings. She states that she was required repeatedly to push and pull railway couplings and also apply wagon hand brakes. This lady can’t identify any isolated event during this period but describes this activity occurring to varying levels over a period of some 3 to 4 days. She developed pain and swelling around the inner aspect of the left clavicle…
Ms Born wore a sling over a period of approximately 2 weeks….
Ms Born subsequently ceased work and, over the last month, has been resting the part in a sling…
The lady continues to wear a Velpeau sling. Ms Born does describe local swelling in the region of the left sternoclavicular joint and local discomfort and tenderness in the region of this joint. There is also complaint of more ill defined discomfort involving the anterior shoulder and left scapular regions. Ms Born is limiting over shoulder movements at this time because of discomfort. She is aware of occasional clicking with shoulder movement. She is now able to lie on her left side in bed”.
Dr Boys diagnosed the Applicant as suffering from “subluxation/synovitis left sternoclavicular joint” and opined that the condition would rise to partial incapacity for employment with QR National. Dr Boys was further of the opinion that the Applicant was capable of the safe operation of a motor vehicle, could return to duties as Rail Operation II, should cease wearing a sling, should be encouraged to mobilise her arm and would benefit from physiotherapy and use of anti-inflammatory medication - Exhibit 1 T13 p.128.
The Applicant was again examined by Dr Boys on 29 April 2010. Dr Boy’s diagnosis was as follows (Exhibit 1 T16 pp.134-135):
·Ms Born has experienced improvement of local symptomatology and continues to relate disability associated with the effects of local inflammation of the left sternoclavicular joint.
·The lady’s condition has not reached maximum medical improvement and Ms Born is undergoing an active plan of management under the direction of Dr D Marchant. Recent hydrocortisone and local anaesthetic injection into the sternoclavicular joint has been ineffective.
·I believe that this lady requires a formal rehabilitation assessment. Surgical management of her condition is not anticipated. This lady should undergo work assessment with a view to vocational redirection within Queensland Rail into full time alternative duties. A restricted on loaded or outstretched or overhead use of the dominant left arm will be required.
·It is likely that this lady’s left shoulder condition will have reached a stable and stationary state at or about the time of review by Dr D Marchant. Assessment of permanent impairment could be performed at that point if desired.”
The Applicant was examined on 14 December 2009 and 16 February 2010 by another Orthopaedic Surgeon, Dr Darren Marchant. Dr Marchant also diagnosed problems with her sterno-clavicular joint, with decreased range of movement in her left shoulder. After examining the Applicant on 16 February 2010, Dr Marchant’s prognosis was as follows (Exhibit 1 T14 p.130):
“At this stage I would rate her long term prognosis as reasonable to good. I expect she requires another two or three months of rehabilitation therapy and the results of this should be good.”
Subsequently the Applicant returned to work, but soon thereafter complained of increasing pain. She was examined again by Dr Marchant on 14 April 2010. The Applicant informed Dr Marchant that she had been improving until she returned to work when her pain increased and her range of movement decreased. The prognosis of Dr Marchant on this occasion was much less optimistic and more guarded (Exhibit 1 T15 pp.131-132):
“I would say her prognosis in the long term is guarded given the quick exacerbation of her symptoms are with return to work….Unfortunately upon return to work she got an increase in her symptoms and for this reason I think it is reasonable to assume that work continues to be an ongoing aggravating issue for her in relation to this injury.”
A similar prognosis was made by Dr Lockwood on 30 April 2010 (Exhibit 1 T17 p.136):
“Please be very clear in spite of her best efforts this injury has deteriorated since Tania returned to work.
I feel the employment is clearly a factor in the deterioration of this injury.
Prognosis is guarded at the moment as recovery has been slow and hampered by doing too much too quickly.”
On 28 July 2011 the Applicant was given notice that her employment with QR National would cease two weeks from that date due to her incapacity to perform normal duties as a Rail Operator. QR National approved ill health retirement – Exhibit 1 T18 p.137.
The Applicant’s medical condition did not improve. Since December 2012 the Applicant has been a patient of Dr Torres in Rockhampton. Dr Torres completed a medical report dated 4 June 2014 in which the previous diagnosis of sternoclavicular joint dislocation with ongoing joint instability of the left shoulder was confirmed. The treatment provided for this condition was Panadol osteo and Deep Heat cream. Symptoms were said to be persistent pain and limitation of movement in the left shoulder. The impact of this condition on the Applicant was stated to be limitation of movement in the left shoulder, limited endurance and impacts on activities of daily living – Exhibit 1 T19 pp.140, 141, 142 and 143.
Dr Torres provided a further report in April 2015, however the report basically repeated the information provided in the 2014 report – Exhibit 1 T25 p.162. There was no improvement in the Applicant’s condition in the 2014-2015 period and the same condition and symptoms persisted.
The last medical report provided by Dr Torres is dated 8 February 2017 (Exhibit 2). The report is set out in full below:
“This is to certify that the abovementioned name is suffering from severe functional impact on activities using hands or arms (1). Most of the following applied to her:
(a)the person has limited movement or coordination in both arms
(b)the person has severe difficulty handling, moving or carrying most objects even when wearing assistive device that they usually use
(c)the person has difficulty using a pen or pencil.
This is based on Table 2 – Upper Limb (Tables for Assessment of Work-related Impairment for Disability Support Pension) 20 points.”
LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Determination, which was made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations - Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years – Cl 6 (4).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
CONSIDERATION
Upper Limb Function
The Respondent concedes that the Applicant has impairments for the purposes of s 94(1)(a) of the Act, namely left shoulder dislocation – Secretary’s Statement of Issues, Facts and Contentions (SSIFC) para 30.
The Respondent also accepts that this condition is fully diagnosed, treated and stabilised – SSFIC para 31.
Having regard to the evidence before the Tribunal, those concessions are properly made.
The Respondent, however, contends that this condition has only caused a moderate functional impact on upper limb function during the qualification period – SSIFC para 31.
Table 2 of the Impairment Tables provides that there is moderate functional impact when a person 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.
In order for there to be a finding of severe functional impact, most of the following must apply to the person:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering hand or arm non-functional;
(b)the person 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)the person has difficulty using a computer keyboard despite appropriate adaptions;
(d)the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
At AAT1 the Applicant gave the following evidence (Exhibit 1 T2 pp.5–6):
“13. In respect to function, Mrs Born said she is not able to do very much at all. Mr Born does all the housework, helps her with dressing and grooming, cuts up her food so that she can eat using a fork with her right hand, takes her shopping and carries the groceries. Mrs Born said she is able to sign her name with difficulty but otherwise is unable to use a pen. While her right, non-dominant arm, is uninjured; lifting that arm causes pain across her shoulders which causes increased pain in the left shoulder. She uses a sling to support her left arm. She is unable to use a computer as the movement of her right arm causes increased pain. She is able to turn pages without assistance but doing so causes pain after a short time. She no longer drives.”
The Tribunal was provided with three Job Capacity Assessment Reports which contain useful information on the degree of functional impact her upper limb condition has caused. The first assessment was conducted on 3 July 2014. The Assessor made the following observations (Exhibit 1 T22 p.154):
“The customer presented an interview with her arm in sling. The customer stated that she typically uses this when sitting for prolonged periods. She reported no past surgery and no future plans for surgical intervention. The customer holds a driver’s licence and can operate a vehicle (without her sling) for short durations. She is left hand dominant and reported that she can hold and use a pen, do up buttons slowly, can pick up 1 litre of milk, can use a laptop, and can lift a bag of groceries using her right arm. She uses a lowered line when hanging laundry. In regards to activities of daily living the customer stated that her husband completes most of the household cleaning and cooking duties. She is able to put on a load of laundry and can sit and fold laundry.”
The second assessment was conducted on 26 May 2015. The Applicant’s self-reporting on this occasion indicated that her health had deteriorated over the intervening twelve months (Exhibit 1 T26 p.174):
“The customer reported that she would have trouble turning pages of a book, even with her right hand, that she cannot use a keyboard due to pain and the inability to hold up her left arm. She stated that she could not unscrew jars, or do up buttons sometime as her left arm shakes. The customer also stated that she cannot use a pen. She stated that she can’t lift her right arm higher enough to lift a 1 Litre bottle of milk. She stated that she couldn’t pick up a light box due to lack of strength…”
The Job Capacity Assessor, however, went on to describe the Assessor’s own observation of the Applicant:
“however (the Applicant) was observed to reach forwards with both arms, and reach above shoulder height with her right arm. The customer did not attend with a sling.”

The Job Capacity Assessor also noted that the Applicant was not taking her prescribed tramadol tablets because of side-effects including rashes and feeling drugged and sleepy. The Applicant informed the Assessor that she was taking neurofen gel and Panadol. Further, the Assessor telephoned Dr Torres on 26 May 2015 and was informed that the Applicant usually attend his surgery with a sling and due to this he found it difficult to do an assessment. The Assessor, made the following observations (p. 175):
“The customer’s use of pain medication is inconsistent with her reported levels of pain, additionally, her self-reported functional impact significantly differs from a Job Capacity Assessment written 10 months ago. Deterioration in functioning is not supported by medical evidence, nor is there medical evidence to support the significant impact this condition is having on the right (uninjured limb) which the customer is reporting. Her treating Doctor (Dr Torres) was unable to corroborate the customer’s reported functional impairment.”
The final assessment was conducted on 16 February 2016. The Applicant’s self-reporting of the impact of her shoulder condition on her functioning is similar to that outlined in the 2015 report – Exhibit 1 T31 p.190.
Under cross-examination at the 30 March 2017 hearing the Applicant agreed that she had travelled to Europe with members of her family for two weeks. She did not seek assistance except from her family members who accompanied her. Whilst in Europe she travelled by bus and went on sightseeing tours. The Applicant testified that she didn’t take photos, was helped on and off the bus by her family, her food was cut up for her by family members and that relevant visa and related documentation was filled out by family members.
The Applicant also testified that her husband washes her hair, but that previously her daughter or sister would visit and wash it for her. She also testified that she will still able to use her right hand for eating, signing her name and turning pages.
The evidence, therefore, clearly supports a finding of moderate functional impact. The preponderance of evidence is that the Applicant during the relevant period did have difficulty performing most of the tasks outlined in the moderate functional impairment part of Table 2, but most of the functional impacts outlined in the severe impact part did not apply to her.
As was noted by the Job Capacity Assessor in the 2015 report, the Applicant’s self-reporting was not consistent the Assessor’s own observations.
The fact that the Applicant could travel to Europe for two weeks without any assistance other than that provided by family members, is also inconsistent with a finding that the Applicant had, at that time, severe functional impact on upper limb activities.
Three other matters, however, should be noted.
The first is that the Applicant did not appear before either AAT1 or the currently constituted Tribunal in person. This is not a criticism of the Applicant, but simply a statement of fact. In these circumstances it was not possible for the Tribunal to observe the Applicant and form a view as to the extent and nature of her condition. The fact that there is evidence (the Job Capacity Report of 2015) that the Applicant’s self-reporting may not accurately reflect the extent and nature of her functional impairment, does not assist the Applicant.
Second, the Applicant was, in effect, represented by her husband. While he obviously was trying his best to assist his wife, the Tribunal formed the view that, at times, he was leading her into answering questions in a particular way.
Third, both the Applicant and her husband were understandably confused and dismayed that the medical report of Dr Torres of 8 February 2017 was not accepted as determinative of the question whether the Applicant could be awarded 20 points or more under the Impairment Tables.
The Tribunal explained to both the Applicant and Mr Born that it is the Tribunal and not a third party who determines the level of impairment and the points that can be assigned. A medical report provides key evidence and can be highly persuasive but such a report can never be automatically determinative of the issues to be resolved. If it were the case, then the Tribunal would have abdicated its statutory mandate to review and determine.
The next problem the Tribunal faced is that the report of Dr Torres is dated 8 February 2017.
As the Tribunal’s mandate is to consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, a medical report not previously produced – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ. In particular, the Tribunal is at liberty to admit into evidence, and consider, a medical report prepared after the expiration of the qualification period, subject to that report dealing with the state of the Applicant’s health during the qualification period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123. Consequently, the Tribunal is at liberty to consider the report of Dr Torres, subject to the legal principles set out previously.
The question before the Tribunal is the Applicant’s condition during the period 5 November 2015 until 4 February 2016. There is no mention in the report as to whether Dr Torres is saying as at February 2017 the Applicant has severe functional impairment or whether she had this degree of functional impairment during the qualification period.
Dr Torres was not called to give evidence. If he was called then this fundamental issue could have been resolved. However, the Tribunal assumes that his diagnosis is a current one and not of the Applicant’s condition during the qualification period. This assumption is based on the Job Capacity Assessor’s notes of the conversation with Dr Torres of 26 May 2015, when Dr Torres was unable to make an assessment.
However, even if it were accepted that the assessment of Dr Torres related to the qualification period, his assessment is inconsistent with the evidence of the Applicant at AAT1 and the observations of the Job Capacity Assessor in 2015.
There are also scattered references in the various other reports to certain other conditions that the Applicant suffers from which may result in functional impairment.
Mental Health Function
First, there are references to the Applicant suffering from depression and anxiety. The Applicant gave evidence at AAT1 that she had been referred to a pain clinic because of constant pain that led to depression. At the date of the AAT1 hearing the Applicant was still on the waiting list and had not received treatment for depression.
Table 5 – Mental Health Function provides that self-reporting of symptoms is insufficient and a diagnosis of the condition must be made by an appropriately qualified medical practitioner such as a psychiatrist. If the diagnosis is not made by a psychiatrist then there must be evidence from a clinical psychologist.
There is no evidence before the Tribunal that the Applicant’s mental health condition has been diagnosed by a psychiatrist, or that she had been treated by a clinical psychologist. In the absence of such evidence it is not possible to award any points under Table 5.
Even if there were such evidence, the Tribunal agrees with the contentions of the Respondent (SSIFC para 43) that it is impossible to conclude that this condition was fully treated and fully stabilised by the conclusion of the qualification period. If there were any doubts, these are settled by the Applicant’s own evidence at AAT1 that she was not having as at August 2016 any treatment for depression – Exhibit 1 T2 p.7.
Spinal Function
Second, a physiotherapist, Ms Keen, examined the Applicant on 12 June 2014 and gave the following provisional diagnosis: “musculoskeletal lesion at C3-C5-C7 and T4-T8 intervertebral discs and facet joints of the same levels on the R&L” - Exhibit 1 T21 p.152.
Member Green correctly pointed out that there was no evidence that this provisional diagnosis had been confirmed, and if it had, what treatment was proposed. Accordingly, Member Green determined that this condition had not been fully diagnosed, treated and stabilised and no impairment points could be assigned – Exhibit 1 T2 p.7.
No further evidence has been presented that would cause to the Tribunal to reach a different conclusion.
Total Impairment Rating
The Tribunal can only award the Applicant 10 points under the Impairment Tables, and, as such, the Applicant does not satisfy s 94(1)(b) of the Act.
As the Applicant’s conditions do not attract 20 points or more under the Impairment Tables, it is not necessary to consider whether the Applicant has a continuing inability to work.
The Tribunal notes that the evidence presented indicates that the Applicant’s condition may be deteriorating. Clearly the report of Dr Torres of 8 February 2017 could lead to this conclusion. Although this application is unsuccessful, it may be that a different result could eventuate in the future should a new claim be made if the relevant authorities are presented with up to date medical evidence. If Dr Torres was able to expand upon his report and indicate if the Applicant’s condition has deteriorated, the nature of the deterioration and the clinical underpinnings for this assessment, then this would be a significant advance.
The Tribunal appreciates the frustration of the Applicant and her husband, particularly as they have placed much reliance on certain medical reports. The Tribunal has attempted to assist by explaining to them in clear and plain language the statutory regime governing the granting of the DSP and the evidence required to obtain a favourable result. If the Applicant’s condition is of the nature as described by Dr Torres, then a full and very detailed medical report would be the next step in advancing the matter.
DECISION
The decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso

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Associate
Dated: 5 May 2017

Date of hearing: 30 March 2017

Applicant:

Advocate for the Respondent

By Phone

Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2017] AATA 600

5 May 2017

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