Brian Wright and Secretary, Department of Social Services - [2014] AATA 498

[2014] AATA 498

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/2633

Re

Brian Wright

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr R G Kenny, Senior Member

Date 21 July 2014

Place Brisbane
The Tribunal sets aside the decision under review and substitutes its decision
that the applicant is qualified for the disability support pension with effect from
27 September 2012.
.........................Sgd...............................................
Mr R G Kenny, Senior Member
CATCHWORDS
SOCIAL SECURITY – Pensions, benefits and allowances – Disability support pension – Relevant period for assessment – Physical impairment from facial pain condition fully diagnosed, treated, stabilised and permanent – Depression not permanent – Impairment Tables – Ratings allocated for chronic pain under Tables 1, 7 and 8 of the Impairment Tables – Overall impairment rating more than 20 points – Program of support completed by applicant – Continuing inability to work – Applicant qualified for disability support pension during the relevant period – Decision under review set aside and substituted
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 27, 94
Social Security (Administration) Act 1999 (Cth) Sch 2, cls 3 and 4
CASES
Crossland and Secretary Department of Family and Community Services [2004] AATA 864
Re Hamal and Secretary Department of Social Security (1993) 30 ALD 517
Li and Secretary Department of Employment and Workplace Relations [2007] AATA 1606
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Secretary Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary Department of Social Security v Pusnjak (1999) 56 ALD 444
Woodiwiss and Secretary Department of Family and Community Services [2003] AATA 846
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
The Guide to Social Security Law
REASONS FOR DECISION
Mr R G Kenny, Senior Member
21 July 2014
BACKGROUND

Brian Wright (“the applicant”) experienced an anaphylaxis reaction to a spider bite to the right side of his face in January 2011. On 27 September 2012, he completed a claim for the disability support pension which is payable under the terms of the Social Security Act 1991 (Cth) (“the Act”) and the Social Security (Administration) Act 1999 (Cth).

His claim was rejected by a Centrelink delegate on 29 October 2012. That decision was affirmed by an authorised review officer on 18 January 2013 and by the Social Security Appeals Tribunal on 30 April 2013.
ISSUES AND SUBMISSIONS
The qualifications for disability support pension are set out in s 94 of the Act. It is common ground that the applicant meets the age and residency requirements of that provision and has a physical impairment in relation to right sided facial pain.

The remaining requirements in s 94 of the Act, and the matters in issue, are:
·whether the applicant has an impairment rating of 20 points or more which is calculated under the Impairment Tables[1] in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) as required by s 94(1)(b) of the Act; and, if so
·whether he has a continuing inability to work as required by s 94(1)(c)(i) of the Act.
[1] See ss 26 and 27 of the Act.
To qualify for a disability support pension, all of the requirements in s 94 of the Act must be met. Further, they must be met at the time of the claim or in the period of 13 weeks from the day of the claim.[2] It is not disputed that, in the applicant's case, that period runs from 27 September 2012 until 26 December 2012 (“the relevant period”).
[2] See Sch 2, cls 3 and 4 of the Social Security (Administration) Act 1999 (Cth).
The requirements to be followed in applying the Impairment Tables are set out in

s 6 of the Determination which is headed “Part 2 – Rules for applying the Impairment Tables” (“the Rules”). That section provides that an impairment rating can only be assigned if the condition causing the impairment is permanent and is more likely than not, in light of available evidence, to persist for more than 2 years. A condition is permanent if it has been fully diagnosed, fully treated, and fully stabilised.[3] For the applicant, Mr Matt Black submitted and, for the respondent, Mr Nicholas Warren conceded that the applicant’s facial pain condition was permanent in accordance with those requirements such that a rating may be allocated under the Impairment Tables. They were also in agreement that depression was not adequately diagnosed and could not be allocated an impairment rating. I am satisfied that those concessions were properly made.
[3] See ss 6(3)-(4) of the Rules.
Mr Black submitted that, during the relevant period, ratings should be allocated at

10 points under Table 1, at 20 points under Table 7 and at 5 points under Table 8 and that the applicant had a continuing inability to work. He submitted that the decision under review ought be set aside and the disability support pension granted from the date of the applicant’s claim.
Mr Warren submitted that the appropriate Table in this matter were Tables 1, 7 and 8 and that a choice had to be made between Tables 1 and 7 because allocation could not be made under both of those Tables. He submitted that the appropriate ratings in this matter were 10 points under Table 1 and 5 points under Table 8. As this was below the threshold of 20 points under the Impairment Tables as required by s 94(1)(b) of the Act, the applicant was not qualified for the disability support pension.
Mr Warren also submitted that the applicant did not have a continuing inability to work. He submitted that reliance should be placed on the Job Capacity Assessment Report[4] (“JCA report”), dated 29 October 2012, in which the assessor concluded that the applicant had a capacity within two years with intervention of 30 hours per week.
[4] See paragraph 19 (below).

For the respondent, it was submitted that there were matters which had to be disregarded when making that assessment. These were:
·any impairments that have not been assigned a rating under the Impairment Tables, in this case, depression – citing Secretary Department of Family and Community Services v Michael (2001) 116 FCR 500;
·the availability of work in the applicant‘s locally accessible labour market – s 94(3)(b) of the Act;
·the availability to the applicant of a training activity- s 94(3)(a) of the Act;
·the applicant’s motivation to work or train except where medical evidence indicates that the lack of motivation is directly attributable to the impairment – citing
Secretary Department of Social Security v Pusnjak (1999) 56 ALD 444 at 451;
·the applicant’s preferences regarding the type of work or training – citing
Crossland and Secretary Department of Family and Community Services [2004] AATA 864 at [34];
·the applicant’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market , including the willingness or otherwise of employers to engage people with disabilities- citing Woodiwiss and Secretary Department of Family and Community Services [2003] AATA 846;
·the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered – citing Li and Secretary Department of Employment and Workplace Relations [2007] AATA 1606 and Re Hamal andSecretary, Department of Social Security (1993) 30 ALD 517.
Mr Warren submitted that the decision under review ought be affirmed.
EVIDENCE
The applicant
The applicant’s evidence was that he experiences persistent, severe pain like a bad tooth ache in the right side of his face from the hair-line to his jaw. The pain limits his activities and he takes frequent breaks because of the pain and he has taken a range of medications including morphine, OxyContin, Endep, Valium and Lyrica. In the relevant period, he was living alone in a small caravan in a caravan park in Bundaberg. He was able to care for himself but did not undertake any “heavy” tasks. He spoke with his neighbours in the caravan park but did not visit them. He did not need assistance from them or others but accepted it if it was offered. He had a car at that time but it was not registered for road use. While in Bundaberg, he was able to use the bus for transportation. He maintained fitness by riding a bike and bush-walking. He was unable to run as the vibrations increased his facial pain. He described a reduction in his levels of concentration and memory since the condition began. He watched television during the day and used his computer when he had phone credits.
The applicant has suffered from depression for a few years. He took antidepressant medication until 2010 but has resumed this since his facial pain began. He has not seen a psychiatrist or a psychologist but is on a hospital waiting list for such a consultation.
The applicant’s work history includes that of a car and boat salesman, fire prevention training and work with Wormald Australia, manager of a produce shed on a potato farm and as a job development and job search officer with the disability sector.
Medical evidence
Prior to the relevant period, the applicant was seen by doctors at the Gladstone Hospital. On 12 October 2011, consultant physician, Dr Basim Nona doubted that the applicant’s condition was trigeminal neuralgia and considered that it was most likely related to his right sphenoid sinusitis. Dr Matthew Allen referred him to neurosurgeon,

Dr Sarah Olsen, who reported, on 10 February 2012, that she was uncertain of the diagnosis. She sought a further opinion from neurologist, Dr Richard Boyle, who reported, on 29 May 2012, that the symptoms did not suggest trigeminal neuralgia but, rather, cluster headache. On 26 September 2012, Dr Debra Scott, general practitioner (“GP”), completed a report for Centrelink in relation to the applicant’s claim in which she diagnosed trigeminal neuralgia and noted that the applicant’s ability to sit for long periods or stand was impaired, that his endurance was very poor and that, sometimes, it prevented him from speaking. On 18 December 2012, towards the end of the relevant period, Dr Kamlesh Das, the applicant’s usual GP, reported to Centrelink that the applicant had persistent right sided facial pain which was initially like trigeminal neuralgia but which had since worsened. He wrote that the applicant had “persistant [sic] unbearable R facial pain” which caused an “inability to function normally” and for which he was taking “high doses of narcotics”. Dr Das also noted that the applicant had a depressed mood, had no motivation, was fatigued, had lost interest in hobbies, had excessive sleepiness and had poor concentration.
Neurologist, Dr Geoffrey Boyce, reported on 3 October 2013. He described the applicant as suffering from severe facial pain which was not really trigeminal neuralgia and for which he recommended that a neurosurgical approach be taken. Another GP,

Dr Suzi Teasdale, wrote to Centrelink on 18 October 2013 referring to the difficulties that the various specialists had in reaching a precise diagnosis for the applicant’s condition. Dr Matthew Steel, from the Nambour Hospital, completed a clinical summary on 9 December 2013, noting that a balloon compression was undertaken by Dr Olsen on 26 November 2013 which resulted in a reduction of the applicant’s pain for five days before it returned.
Dr Catherine Moore is a GP and is a Medical Advisor with the Health Professional Advisory Unit[5] (“HPAU”) in the Department of Human Services. After receiving a referral on 23 October 2013, she completed a report for the respondent noting that the first purpose of the report was to advise whether, during the relevant period, the applicant’s chronic pain from his facial condition and his depression were “permanent” as required under the Determination. Dr Moore’s opinion was that the applicant’s condition was permanent and, as noted above, this has been conceded by the respondent. Dr Moore concluded that the applicant’s depression could not be considered permanent because of an absence of a diagnosis by a clinical psychologist or a psychiatrist which is a requirement under the Impairment Tables.
[5] For the role of the HPAU, see the Guide to Social Security Law at s 1.1.H.60. For use of the Guide, see paragraph 20 (below).
The second purpose of Dr Moore’s report was to give an estimate of the likely impairment rating under the Impairment Tables for any condition she considered to be permanent. Clearly, this is the applicant’s facial pain condition which she identified as chronic pain.
Dr Moore also gave evidence. In her report and in her evidence, Dr Moore said that the appropriate Table for rating chronic pain was Table 1. She said that this was a “guideline” by which the HPAU selected the relevant Table. Dr Moore said that Table 1 was the usual table for assessing chronic pain and that ratings should not be taken from both Table 1 and Table 7 because that would amount to “double dipping”. She also conceded that the functions assessed in Table 1 and in Table 7 are different. Her opinion was that the likely rating under Table 1 was 10. She noted that the applicant, in the relevant period, rode a bicycle for fitness and that, without assistance, he was able to use public transport, walk around a shopping centre and walk from a car park into a shopping complex. She also noted that he could, with difficulty, perform household duties.

Dr Moore did not see the applicant in person but contacted Dr Allen who confirmed that the applicant was able to carry out those activities. Dr Moore said that if Table 7 were used to assess the applicant’ impairment, the relevant level would be 10. She also noted that the applicant experienced communication difficulty because of the facial pain condition and considered that the likely rating for this under Table 8 was 5. Dr Moore also opined that it was likely that the applicant would benefit from a program of support in trying to return to the workforce.
Neurologist, Dr Don Todman, completed reports on 17 April 2014, 13 May 2014 and

24 June 2014 and also gave evidence. In his first report, Dr Todman wrote that the applicant described pain in the right side of his face at a constant level of between

5/10 and 10/10 with superimposition of more severe sharp jabs of pain. He reported that the applicant informed him that his pain was quite extreme and debilitating and aggravated by physical exertion, lifting, local touch and cool air on his face. It also disturbed his sleep. Dr Todman wrote that the applicant described a lot of pain with bending, lifting and all household tasks. Dr Todman noted that the applicant has not been in work since the facial pain began and that he had previously been employed in project management in the disability sector. Dr Todman’s opinion was that the appropriate impairment rating for the applicant was 20 under Table 7 of the Impairment Tables.

He also wrote that the applicant’s condition was not likely to improve significantly within two years of the relevant period and that the facial pain prevented him from working more than 15 hours per week or undertaking a training activity within two years of the relevant period and for two years from when he saw him .
In his second report, Dr Todman confirmed that the allocation of 20 points under Table 7 was applicable. In his third report, Dr Todman diagnosed the applicant’s condition as chronic right-sided facial pain and he advised that he had seen the report of Dr Moore. He wrote that the applicant’s “functional capacity is very minimal indeed” and declared that “the levels of functional impairment are the most extreme that one could imagine for a chronic pain disorder”. He rejected Dr Moore’s opinion that a rating of 10 was applicable under Table 1. In his oral evidence, Dr Todman confirmed the opinions he expressed in his reports. He also said that the facial condition impacts on the applicant’s powers of concentration and memory in that he has problems completing both mental and physical tasks and has difficulty recalling things.
JCA report
A JCA report was completed on 29 October 2012 by C, a rehabilitation counsellor.

C concluded that, at that time, there were no permanent conditions capable of being rated under the Impairment Tables. C’s opinion was that the applicant had a temporary work capacity of 0-7 hours per week and a baseline work capacity of 15-22 hours per week in “moderate less skilled” work such as administration, cleaning and processing. However, she qualified that opinion with the following comment:
Functional losses associated with the client’s permanent condition, such as severe and constant facial pain, will limit the client’s ability to obtain and maintain full time employment in the open labour market.
C’s opinion was that, within two years, the applicant would have a capacity to work for 30+ hours per week with medical interventions as well as DES and DMS services which would increase his capacity to manage the functional impact of his condition.
CONSIDERATION
Impairment
In the Determination, the meaning of “impairment”, the reference to “chronic pain” and the steps for selecting the appropriate Table read:
3 Interpretation
…
Impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
…
6 Applying the Tables
…
Assessing functional impact of pain
(9)       There is no Table dealing specifically with pain and when assessing pain the   following must be considered:
…
(b)       chronic pain is a condition and, where it has been diagnosed, any   resulting impairment should be assessed using the Table relevant to the   area of function affected; and
…
10 Selecting the applicable Table and assessing impairments
Selection steps
(1)      Table selection is to be made by applying the following steps:
(a)       identify the loss of function; then
(b)       refer to the Table related to the function affected; then
(c)       identify the correct impairment rating.
(2)       The Table specific to the impairment being rated must always be applied to that                  impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)       Where a single condition causes multiple impairments, each impairment should                  be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments              which could be assessed under a number of different Tables including: upper and lower                    limb function (Tables 2 and 3); brain function (Table 7); communication function (Table                8); and visual function (Table 12).
(4)       When using more than one Table to assess multiple impairments resulting from a                single condition, impairment ratings for the same impairment must not be              assigned under more than one Table.
The Guide to Social Security Law (“the Guide”) provides case examples of table use for permanent conditions. The Guide is published by the respondent to provide assistance to those who administer the Act. While not bound to apply policy instructions of the kind referred to in the Guide, the Tribunal will usually apply the guidelines unless, unlike the situation here, there are cogent reasons in a particular case for not doing so.[6] Relevant to the assessment of chronic pain is s 3.6.3.07 of the Guide which reads:
3.6.3.07 Case Examples of Table Use for Permanent Conditions
[6] See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 at 639-645.

Condition/

diagnosis

Example of Impairment Table use

Chronic pain
Acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body but should resolve itself within a few months.
However, chronic pain is a condition and where it has been diagnosed, fully treated and stabilised, the assessor should assess any loss of functional capacity using the Table relevant to the area of function affected. For example:

·     Table 4 - Spinal Function can be used if the person has chronic back pain that impairs their ability to bend and move their trunk and to remain seated.

·     Table 3 - Lower Limb Function can be used if the person has chronic pain in their lower limbs that impairs their ability to walk, climb stairs, or sustain a standing position.

·     Table 2 - Upper Limb Function can be used if the person has chronic pain in their upper limbs that impairs their ability to reach up or lift objects.

·     Table 10 - Digestive and Reproductive Function can be used if the person has chronic pelvic pain that impairs their ability to concentrate on or sustain tasks or work activities.

·     Table 1 - Functions Requiring Physical Exertion and Stamina can be used if the person has chronic pain that impairs their ability to perform physical activities around the home and community.

·     Table 7 - Brain Function can be used if the person has chronic pain which is neuropathic and impairs their neurological or cognitive function, such as memory, attention and concentration.

Condition/ diagnosis	Example of Impairment Table use
Chronic pain	Acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body but should resolve itself within a few months. However, chronic pain is a condition and where it has been diagnosed, fully treated and stabilised, the assessor should assess any loss of functional capacity using the Table relevant to the area of function affected. For example: · Table 4 - Spinal Function can be used if the person has chronic back pain that impairs their ability to bend and move their trunk and to remain seated. · Table 3 - Lower Limb Function can be used if the person has chronic pain in their lower limbs that impairs their ability to walk, climb stairs, or sustain a standing position. · Table 2 - Upper Limb Function can be used if the person has chronic pain in their upper limbs that impairs their ability to reach up or lift objects. · Table 10 - Digestive and Reproductive Function can be used if the person has chronic pelvic pain that impairs their ability to concentrate on or sustain tasks or work activities. · Table 1 - Functions Requiring Physical Exertion and Stamina can be used if the person has chronic pain that impairs their ability to perform physical activities around the home and community. · Table 7 - Brain Function can be used if the person has chronic pain which is neuropathic and impairs their neurological or cognitive function, such as memory, attention and concentration.

Of the Tables identified therein, those of relevance in this matter are Tables 1 and 7. The selection of Tables comprises examples and does not purport to be exhaustive. I am also satisfied that Table 5 is relevant in this matter.
Clearly, a rating may be allocated under either Table 1 or Table 7 but I am also reasonably satisfied that a rating may be allocated from both Tables provided that a separate loss of function is identified for each of those Tables.[7] That is in conflict with

Dr Moore’s understanding of the operation of Tables 1 and 7 which would seem to be contrary to the clear wording of the Rules in the Determination. Dr Moore referred to a set of guidelines but these were not produced in evidence and their status is unknown.
[7] See s 10(3) of the Determination (above).
I have noted Mr Warren’s submission that utilising both Tables 1 and 7 amounts to double dipping. I do not accept that contention. Impairment means a loss of functional capacity.[8] The functional loss in Table 1 is different from that in Table 7. Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina. Table 7 is used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function. Dr Todman confirmed in his evidence that the applicant’s facial pain was a neurological condition. The types of functional impairment in those Tables are not the same. If there is evidence of both types of functional impairment, I am satisfied that an allocation of an impairment rating may be made from each Table. Neither Mr Warren nor Dr Moore considered it inappropriate to combine Table 1 and Table 8 which is to be used where the person has a permanent condition resulting in functional impairment affecting communication functions. I am satisfied that a further rating may be allocated for the loss of function relating to the applicant’s speech from Table 8.
[8] See Part 1 Rule 3 of the Determination (above).
Those three Tables, with their respective introductions, their descriptors and points levels of potential relevance in this matter read:
Table 1 - Functions requiring Physical Exertion and Stamina

Introduction to Table 1

·     Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·     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:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);

results of exercise, cardiac stress or treadmill testing.

Points

Descriptors

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1) The person:

(a)       experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)        is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)       is able to:

(i)        use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)       The person:

(a)       usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)        walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

Table 7 – Brain Function

Introduction to Table 7

·     Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.

·     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:

a report from the person’s treating doctor;

a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);

results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));

results of cognitive function assessments.

·     The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

·     For neurological or cognitive 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.

·     A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.

·     Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function.

Points Descriptors

10
There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)       The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)       memory;

            Example 1: The person often forgets to complete regular tasks of             minor consequence such as putting the bin out on rubbish night.
            Example 2: The person often misplaces items.
            Example 3: The person needs to use memory aids (such as shopping            lists) to remember any more than 3 or 4 items.
(b)       attention and concentration;
            Example 1: The person has difficulty concentrating on complex             tasks for more than 30 minutes.
            Example 2: The person has significant difficulty focusing on a task             if there are other activities occurring nearby.
(c)       problem solving;
            Example: The person has difficulty solving some day to day             problems or problems not previously encountered and may need             assistance or advice from time to time.
(d)       planning;
            Example: The person has difficulty planning and organising new or             special activities (such as planning and organising a large birthday             party).
(e)       decision making;
            Example: The person has some difficulty in prioritising and             decision making and displays poor judgement at times, resulting in             negative outcomes for self or others.
(f)       comprehension;
            Example: The person has difficulty understanding complex             instructions involving multiple steps and may need more prompts,             written instructions or repeated demonstrations than peers to             complete tasks.
(g)       visuo-spatial function;
            Example: The person has some difficulty with visuo-spatial             functions (such as difficulty reading maps, giving directions or             judging distance or depth) but this does not result in major             limitations in day to day activities.
(h)       behavioural regulation;
            Example: The person occasionally (less than once a week) has             difficulty controlling behaviour in routine situations (such as             showing frustration or anger or losing temper for minor reasons but             displays no physical aggression).
(j)        self awareness.
            Example: The person lacks awareness of own limitations, resulting             in mild difficulties in social interactions or problems arising in day             to day activities.

20
There is a severe functional impact resulting from a neurological or cognitive condition.

(1)       The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

(a)       memory;
            Example 1: The person is unable to remember routines, regular             tasks and instructions.
            Example 2: The person has difficulty recalling events of the past             few days.
            Example 3: The person gets easily lost in unfamiliar places.
(b)       attention and concentration;
            Example 1: The person is unable to concentrate on any task, even a             task that interests the person, for more than 10 minutes.
            Example 2: The person is easily distracted from any task.
(c)       problem solving;
            Example: The person is unable to solve routine day to day problems            (such as what to do if a household appliance breaks down) and       needs regular assistance and advice.
(d)       planning;
            Example: The person is unable to plan and organise routine daily             activities (such as an outing to the movies or a supermarket             shopping trip).
(e)       decision making;
            Example: The person is unable to prioritise and make complex             decisions and often displays poor judgement, resulting in negative             outcomes for self or others.
(f)       comprehension;
            Example: The person is unable to understand basic instructions and             needs regular prompts to complete tasks.
(g)       visuo-spatial function;
            Example: The person is unable to perform many visuo-spatial             functions, such as reading maps, giving directions (including to the             person’s house) or judging distance or depth (resulting in stumbling             on steps or bumping into objects).
(h)       behavioural regulation;
            Example: The person is often (more than once a week) unable to             control behaviour even in routine, day to day situations and may be         verbally abusive to others or threaten physical aggression.
(j)        self awareness.
            Example: The person lacks awareness of own limitations, resulting             in significant difficulties in social interactions or problems arising             in day to day activities.

Table 8 – Communication Function

Introduction to Table 8

·     Table 8 is to be used where the person has a permanent condition resulting in functional impairment affecting communication functions.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     The person must be assessed on their independent communication abilities using any aids or equipment (assistive technology) that they have and usually use and without physical assistance from a support person.

·     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:

a report from the person’s treating doctor;

a specialist assessment by a speech pathologist, neurologist or psychologist;

a report from a medical specialist confirming diagnosis of conditions associated with communication impairment (e.g. stroke (cerebrovascular accident (CVA)), other acquired brain injury, cerebral palsy, neurodegenerative conditions, damage to the speech-related structures of the mouth, vocal cords or larynx);

results of diagnostic tests (e.g. X-Rays or other imagery);

results of functional assessments.

·     If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11.

·     If the impairment affecting communication function is due to impairment in intellectual function, only Table 9 must be used.

·     In this Table, main language means the language that the person most commonly uses.

·     In this Table, communication or communication functions means receptive communication (understanding language) or expressive communication (producing speech).

Points Descriptors

5
There is a mild functional impact on communication in the person’s main language.

(1)       At least one of the following applies:

(a)       the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or

(b)       the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.

For Table 1, I am satisfied that, in the relevant period, the applicant was able to walk around a shopping centre or supermarket without assistance, could walk from a carpark into a shopping centre or supermarket without assistance and use public transport without assistance. Accordingly, the applicant does not satisfy the descriptors for a severe impairment under Table 1. In that regard, I do not accept that the evidence of Dr Todman relates to the severity of the applicant’s facial pain as it affected him in the relevant period. I have noted his opinion that the condition has worsened since that time.
[9] See Introduction to Table 1.
Dr Todman’s evidence conflicts with the applicant’s evidence to the Tribunal about his ability to mobilise and undertake many of his day to day activities as was required when living alone in a caravan in Bundaberg. I accept Dr Moore’s evidence about the moderate level of the applicant’s impairment which she formed after discussions with Dr Allen. The applicant experienced frequent symptoms of fatigue and had difficulty when performing some, but not all, of his day to day activities and was able to use public transport and walk around a shopping centre or supermarket. The loss of function so described represents “functional impairment when performing activities requiring physical exertion or stamina”[9] at the moderate level of 10 points under Table 1.
Table 7 relates to a different form of functional loss than does Table 1. Table 7 is related to functional impairment related to neurological or cognitive function. In his report completed in the relevant period, Dr Das identified poor concentration and Dr Todman’s evidence was that the facial pain condition impacts on the applicant’s powers of concentration and memory in that he has problems completing both mental and physical tasks and has difficulty recalling things. For the 20 points level, frequent (at least once a day) assistance and supervision is needed. That was not the evidence of the applicant in reference to the relevant period and I am satisfied that his impairment under Table 7 is not severe. However, I accept that that it meets the descriptors at the moderate level in that he needed occasional (less than once a day) assistance with day to day activities and had moderate difficulties with his memory and concentration. That equates with
10 points under Table 7.
Table 8 is used where the person has a permanent condition resulting in functional impairment affecting communication functions. There is evidence from Dr Scott that, during the relevant period, the applicant had difficulty with speech because of the facial pain. Dr Todman also said that the applicant had mild difficulty in producing speech because of his facial pain. That mild level of functional impact equates with 5 points under Table 8.
With impairment ratings of 10, 10 and 5 under the Impairment Tables 1, 7 and 8, respectively, I am satisfied that the applicant has an overall impairment rating of at least 20 points and meets the requirement of s 94(1)(b) of the Act.
Continuing inability to work
The second issue for determination is whether the applicant had a continuing inability to work as required by s 94(1)(c)(i) of the Act. The following provisions of s 94 of the Act, in so far as relevant, are concerned with establishing a continuing inability to work:
(2)      A person has a continuing inability to work because of an impairment if the            Secretary is satisfied that:
(aa)     in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively        participated in a program of support within the meaning of        subsection (3C); and
(a)      in all cases—the impairment is of itself sufficient to prevent the person         from doing any work independently of a program of support within the         next 2 years; and
(b)      in all cases—either:
(i)       the impairment is of itself sufficient to prevent the person from         undertaking a training activity during the next 2 years; or
(ii)      if the impairment does not prevent the person from undertaking        a training activity—such activity is unlikely (because of the         impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(3)      In deciding whether or not a person has a continuing inability to work because                  of impairment, the Secretary is not to have regard to:
(a)      the availability to the person of a training activity; or
(b)      the availability to the person of work in the person’s locally accessible         labour market
…
(3B)     A person’s impairment is a severe impairment if the person’s impairment is of                    20 points or more under the Impairment Tables, of which 20 points or more are              under a single Impairment Table.
…
(3C)    A person has actively participated in a program of support if the person has   satisfied the requirements specified in a legislative instrument made by the   Minister for the purposes of this subsection.
…
(5)      In this section:
program of support means a program that:
(a)      is designed to assist persons to prepare for, find or maintain work; and
(b)      either:
(i)       is funded (wholly or partly) by the Commonwealth; or
(ii)      is of a type that the Secretary considers is similar to a program        that is designed to assist persons to prepare for, find or maintain          work and that is funded (wholly or partly) by the Commonwealth
training activity means one or more of the following activities, whether or not   the activity is designed specifically for people with physical, intellectual or                    psychiatric impairments:
(a)      education;
(b)      pre‑vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)       work‑related training (including on‑the‑job training).
work means work:
(a)      that is for at least 15 hours per week on wages that are at or above the        relevant minimum wage; and
(b)      that exists in Australia, even if not within the person’s locally accessible       labour market.

Mr Warren conceded that the applicant had undertaken a program of support and I am satisfied that his concession was properly made. Accordingly, what remains to be determined in this second issue is whether the definition of “work” in s 94(5) of the Act is satisfied. I have noted Mr Warren’s submission concerning the factors which must be disregarded when considering that issue.[10]
[10] See paragraph 7 (above).
I have not accepted Dr Todman’s evidence concerning the impairment ratings of

20 points under Tables 1 and 7 of the Impairment Tables as being applicable during the relevant period. His final assessment of the applicant’s loss of function was made after he saw him some 18 months after the date of the applicant’s claim. Dr Todman’s adoption of the 20 points level in Tables 1 and 7 support his reference to the worsening nature of the applicant’s condition. His evidence was that the applicant’s condition was not likely to improve significantly within those two years and that the facial pain prevented him from working more than 15 hours per week or undertaking a training activity within two years of the relevant period. His final report was prepared some 21 months after the claim date. In particular, Dr Todman said that the facial pain condition impacts on the applicant’s powers of concentration and memory in that he has problems completing both mental and physical tasks and has difficulty recalling things.
In the JCA report, C concluded that the applicant had a
baseline work capacity of 15-22 hours per week but describe his severe and constant facial pain as being a limiting factor for him in finding and maintaining work full-time work. On the description of the functional loss given by Dr Todman, I am satisfied that his work capacity has been overstated in that JCA report. Certainly the prediction of improvement in two years has not occurred in the 20 months that have passed since the JCA report was prepared. Indeed Dr Todman’s evidence was that the applicant’s condition has worsened. In assessing the applicant’s work capacity, I am persuaded by the evidence of Dr Todman and I am satisfied that, on that evidence, the applicant’s impairment is of itself sufficient to have prevented him from working for 15 hours per week and will continue to prevent him from doing so for the next 2 years. I have noted the definition of the term “training activity” which is set out above and, I am also satisfied that, on Dr Todman’s evidence, the applicant’s impairment is of itself sufficient to have prevented him from undertaking a training activity during the 2 years since his claim and that it will continue to prevent him from doing so for the next 2 years. Clearly, Dr Todman’s opinion differs from that in the

JCA report.
The applicant was qualified under s 94 of the Act for the disability support pension during the relevant period.
DECISION
The Tribunal sets aside the decision under review and substitutes its decision

that the applicant is qualified for the disability support pension with effect from

27 September 2012.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of
Mr R G Kenny, Senior Member
..............................Sgd..........................................
Associate
Dated 21 July 2014

Date of hearing 1 July 2014

Counsel for the Applicant Mr Matt Black

Solicitors for the Applicant Mr James Gibney, Legal Aid Queensland

Solicitors for the Respondent Mr Nicholas Warren, Department of Human Services

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/2633
Re	Brian Wright
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr R G Kenny, Senior Member
Date	21 July 2014
Place	Brisbane

Introduction to Table 1
· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina. · 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: a report from the person’s treating doctor; a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain); a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms); results of exercise, cardiac stress or treadmill testing.
Points	Descriptors
10	There is a moderate* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person: (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and (b) is able to: (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20	There is a severe* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

Introduction to Table 7
· Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function. · 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: a report from the person’s treating doctor; a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain); results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG)); results of cognitive function assessments. · The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon. · For neurological or cognitive 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. · A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table. · Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function.
Points	Descriptors
10	There is a moderate* functional impact resulting from a neurological or cognitive condition.* (1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following: (a) memory; Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night. Example 2: The person often misplaces items. Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items. (b) attention and concentration; Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes. Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby. (c) problem solving; Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time. (d) planning; Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party). (e) decision making; Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others. (f) comprehension; Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks. (g) visuo-spatial function; Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities. (h) behavioural regulation; Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression). (j) self awareness. Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
20	There is a severe* functional impact resulting from a neurological or cognitive condition.* (1) The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following: (a) memory; Example 1: The person is unable to remember routines, regular tasks and instructions. Example 2: The person has difficulty recalling events of the past few days. Example 3: The person gets easily lost in unfamiliar places. (b) attention and concentration; Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes. Example 2: The person is easily distracted from any task. (c) problem solving; Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice. (d) planning; Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip). (e) decision making; Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others. (f) comprehension; Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks. (g) visuo-spatial function; Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects). (h) behavioural regulation; Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression. (j) self awareness. Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

Introduction to Table 8
· Table 8 is to be used where the person has a permanent condition resulting in functional impairment affecting communication functions. · The diagnosis of the condition must be made by an appropriately qualified medical practitioner. · The person must be assessed on their independent communication abilities using any aids or equipment (assistive technology) that they have and usually use and without physical assistance from a support person. · 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: a report from the person’s treating doctor; a specialist assessment by a speech pathologist, neurologist or psychologist; a report from a medical specialist confirming diagnosis of conditions associated with communication impairment (e.g. stroke (cerebrovascular accident (CVA)), other acquired brain injury, cerebral palsy, neurodegenerative conditions, damage to the speech-related structures of the mouth, vocal cords or larynx); results of diagnostic tests (e.g. X-Rays or other imagery); results of functional assessments. · If the person uses recognised sign language or other non-verbal communication method as a result of hearing loss only, the person’s hearing and communication function should be assessed using Table 11. · If the impairment affecting communication function is due to impairment in intellectual function, only Table 9 must be used. · In this Table, *main language* means the language that the person most commonly uses. · In this Table, *communication* or *communication functions* means receptive communication (understanding language) or expressive communication (producing speech).
Points	Descriptors
5	There is a mild* functional impact on communication in the person’s main language*. (1) At least one of the following applies: (a) the person has some difficulty understanding complex words and long sentences (e.g. a complex newspaper article); or (b) the person has mild difficulty in producing speech and has minor difficulty with being understood due to speech production or content.

Date of hearing	1 July 2014
Counsel for the Applicant	Mr Matt Black
Solicitors for the Applicant	Mr James Gibney, Legal Aid Queensland
Solicitors for the Respondent	Mr Nicholas Warren, Department of Human Services