Cai and Secretary, Department of Social Services (Social services second review)
[2021] AATA 1838
•18 June 2021
Cai and Secretary, Department of Social Services (Social services second review) [2021] AATA 1838 (18 June 2021)
Division:GENERAL DIVISION
File Number(s): 2020/3511
Re:Jing Cai
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Emeritus Professor P A Fairall, Senior Member
Date:18 June 2021
Place:Sydney
The decision under review is affirmed.
...................................[sgd].....................................
Emeritus Professor P A Fairall, Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – spinal condition - Upper Limb and Shoulder Condition – pain as a separate condition - whether severe impairment – decision under review affirmed.
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Badita and Secretary, Department of Social Services [2018] AATA 3884
Baxter and Secretary, Department of Social Services [2017] AATA 1544
Department of Social Services and Dockerty [2016] AATA 477
Du and Secretary, Department of Social Services [2018] AATA 1824
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Miller and Secretary, Department of Social Services [2019] AATA 2315
Phillips and Secretary, Department of Social Services (Social services second review) [2021] AATA 1046
Sabeei and Secretary, Department of Social Services [2014] AATA 815
Shi v Migration Agents Registration Authority [2008] HCA 31
Secondary Materials
Social Security Guide
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Emeritus Professor P A Fairall, Senior Member
18 June 2021
INTRODUCTION
1.On 1 April 2004, the Applicant suffered a workplace accident when she fell from her chair, landing awkwardly on a concrete floor. She received a grand total of $433,878.20 by way of workers compensation; $370,290.73 for lost wages, of which $232,459.22 was paid on the basis of no work capacity.[1] She also received $33,268.52 for medical expenses; and $9,375 for permanent impairment.
2.The Applicant claims to be suffering from ongoing pain associated with her neck and shoulders and lower limbs, and on 19 December 2018, she applied for Disability Support Pension (DSP).[2] Her claim was rejected by Centrelink on 20 February 2019,[3] on the basis that none of her claimed disabilities were permanent as defined under the scheme, and her functional incapacity rating fell below 20 impairment points under the Impairment Tables.[4] On 22 January 2020, that decision was upheld by an Authorised Review Officer (ARO).[5]
3.On 6 May 2020, the Administrative Appeals Tribunal (Social Services and Child Support Division) (AAT1) (a medical practitioner) affirmed the ARO decision.[6]
4.On 9 June 2020, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the decision made by the AAT1 on 6 May 2020 (‘the reviewable decision’).
THE TRIBUNAL HEARING
[1] Insurance File GIO, List of Payments.
[2] T50 at 196. See also the Applicant’s Personal Statement filed on 13 September 2020.
[3] T54 at 240.
[4] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth),
[5] T67, at 297, 299.
[6] T2 at 5.
The Tribunal heard the matter by telephone on 19 March 2021. The Applicant was self-represented. She gave evidence with the assistance of a Mandarin interpreter. No witnesses were called. She tendered a large body of documents relating to her medical treatment, together with a personal statement.
6.The Respondent, represented by Dr Thompson, tendered documents (the T Docs) pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act).
ELIGIBILITY FOR DSP
7.The basic requirement for DSP is a continuing inability to work (CITW) because of a physical, intellectual or psychiatric impairment of 20 points or more under the impairment Tables: Social Security Act 1991 (Cth) (the Social Security Act), subsection 94(1).[7] Under the Tables, a person’s functional impairment may be ranked as mild (5 points), moderate (10 points), severe (20 points) or extreme (30 points).
[7] The issue of ‘active participation in the supported wages system’ under paragraph 94(1)(c)(ii) can be left to one side because it has no relevance to the present case.
8.Dr Thompson conceded that the medical evidence supported a finding that at the relevant time the Applicant had physical, intellectual or psychiatric impairments and satisfies paragraph 94(1)(a) of the Act.[8] He identified five conditions from the medical reports:
·Condition 1 – Spinal Condition
·Condition 2 – Upper Limb and Shoulder Condition
·Condition 3 – Lower Limb deficiencies
·Condition 4 – Mental health Condition
·Condition 5 – Other Condition (Neurological and cognitive)
[8] RFSIC, para 5.1.
9.Further, he submitted:
·None of the conditions were fully treated and stabilised, although he conceded that the spinal condition and the upper and lower limb conditions were fully diagnosed. They were not fully treated and stabilised because the Applicant had failed to act on advice to seek “pain management treatment” for chronic pain.[9]
·Neither the medical evidence nor the evidence given by the Applicant at the hearing supported a functional impairment of 20 points, and certainly not from a single Impairment Table. He submitted that she was entitled to no more than 15 points: 10 points for Spinal Condition (Table 4) and 5 points for Upper Limb condition (Table 2).
·The evidence did not support a finding that the Applicant has a CITW.
[9] Transcript, 19 March 2021, at 38.
10.A person’s eligibility for DSP is assessed over a 13 week period commencing after the day on which the claim is made (the qualification period): Social Security (Administration) Act 1999 (Cth) (the Administration Act), section 42.[10] The relevant qualification period in the present case is therefore 20 December 2018 to 21 March 2019. If a person becomes qualified after the conclusion of the qualification period, a fresh application will be required.[11]
[10] See Schedule Two, subsection 4(2). Subsection 4(1) of Schedule 2 does not require that a person is qualified throughout that 13 week period, but that they become qualified within the qualification period: see Badita and Secretary, Department of Social Services (Social services second review) [2018] AATA 3884; Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
[11] Section 42 of the Administration Act invoking section 4(1) of Schedule 2, which is headed Start Day – Early claim.
11.Subsection 94(2) of the Social Security Act implies that if a person has not actively participated in a program of support (POS) offered by a designated provider over the required duration, the person is ineligible for DSP unless the person is assessed as having a severe impairment, defined as an impairment attracting 20 points or more under a single Impairment Table.[12] The requirements for active participation in a POS are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘POS Determination’).[13]
[12] Social Security Act 1991 (Cth) s 94(3B).
[13] Ibid s 94(3C).
12.The need for those who have not actively participated in a POS to demonstrate a severe impairment is often overlooked by claimants for DSP. In Phillips and Secretary, Department of Social Services (Social services second review) [2021] AATA 1046, Senior Member Dr Evans-Bonner suggested that Centrelink should do more to publicise the requirement of participation in a POS. She said, at [61]:
The lack of awareness of the program of support requirement means that applicants are proceeding with applications in the Tribunal that have poor prospects of success. This can be stressful and time consuming for applicants, and negatively impacts the Tribunal’s resources.
13.The online Social Security Guide (‘the Guide’) states:
To satisfy the CITW (1.1.C.330) criteria for DSP, people who claim DSP on or after 3 September 2011 and are assessed as not having a severe impairment (1.1.S.127) or who are the reviewed 2008-2011 DSP starters must, among other things, demonstrate that they have actively participated in a POS (1.1.P.440).[14]
[14] See the Social Security Guide paragraph 1.1.A.30, accessed on 2 May 2021.
14.It would be helpful if this could be reformulated so that the critical requirement is stated explicitly rather than implicitly.
15.In the present case, the Applicant applied for DSP on 19 December 2018. The relevant three year period under the POS active participation test is from 19 December 2015 to 18 December 2018.
16.Dr Thompson noted that the Applicant completed only 58 days in a POS in this three year period and that she did not satisfy the requirements of active participation. He relied upon departmental records.[15]
[15] T74 at 377.
17.The Applicant told the Tribunal that she did not agree with this record. She said that she was on “JobSearch payment and then it is a requirement for me to attend the employment service”.[16] She said that she had been attending February or March of 2018 up until the present time. (I note that the Applicant travelled to China on 15 June 2018, returning 29 June 2018).[17] She said that her visits to Centrelink for Jobseeker satisfied the requirement for active participation in a POS.[18]
[16] Transcript, 19 March 2021, at 34.
[17] RSFIC, para 5.50.
[18] See Centrelink Notice – Mutual obligations requirements, 16 April 2019; T57/249; T61/260.
18.The POS Determination states that a person participating in a POS must provide certain information to the Secretary. The program must be offered by a designated provider and specifically tailored to the person’s needs and barriers to employment. The Guide notes that:
[H]ealth professionals administering standard medical or rehabilitation treatment are not considered to be designated providers for POS purposes. Also, standard medical treatment and rehabilitation are not considered to be a program that is specifically tailored to a person's barriers to employment.[19]
[19] See the Social Security Guide paragraph 1.1.A.30, accessed on 2 May 2021.
19.The Applicant’s assertion that she had more than 58 active participation days appears to be based upon a misconception as to the requirements of a POS.
20.The only evidence of the Applicant’s active participation in a POS is that provided by the Secretary based on departmental records. I therefore find on the basis of the evidence tendered by the Secretary that the Applicant had no more than 58 days of active participation, and therefore does not satisfy the requirements of a POS, as defined in the Determination.[20]
[20] Transcript, 19 March 21, p 33.
21.Since the Applicant has failed to demonstrate active participation in a POS, her claim for DSP cannot succeed unless at least one of her conditions is a severe impairment; that is, attracting a rating of at least 20 points under a single Impairment Table during the qualification period.
DOES THE APPLICANT HAVE A SEVERE IMPAIRMENT?
22.The Applicant supported her original application with medical reports from her long time General Practitioner, Dr Peter Kemp,[21] and a specialist, Dr Peter Conrad, a member of the Royal Australasian College of Surgeons.[22] In response to a question about treatment, she stated that she received treatment from Jonathan Khoo, a physiotherapist, and Sally Lake, an osteopath, “as and when I can afford them”. She stated that the treatment provided short lived pain relief but “does not help”.[23] She was not expecting further medical treatment.
[21] Medical certificate dated 23 January 2019: T51 at 224.
[22] Letter dated 12 December 2018: T49, at 187.
[23] T50 at 217.
23.The medical certificate from Dr Kemp states that she has been his patient since 1 March 2004, and refers to (1) chronic lower back pain, degenerative lumbar; (2) chronic neck, bilateral shoulder pain, bursitis; and (3) co morbid depression, involving the following symptoms:
1Severe chronic lower back pain, disabling, grossly limited function widespread mechanical pain has been assessed by Dr Holford, Pain Management specialist who agrees that Jean is not fit to return to work and will be caring for her through the North Shore pain clinic;
2Chronic neck and right shoulder pain, under review with Dr Holford, not able to travel of public transport by herself;
3Mood disorder, difficulty coping with chronicity of pain and restricted ADLs.
24.In a report dated 12 December 2018, Dr Conrad stated that he had previously seen the Applicant in 2005 in connection with her workplace accident.[24] He conducted an examination and concluded that: [25]
[24] Letter dated 12 December 2018: T49, at 187.
[25] T49, at 191.
This lady, as a result of her work accident of 1 April 2004, has sustained a back injury resulting in discal damage as per MRI scans. Ms Cai also injured her neck and right shoulder, which have got progressively worse over the years and may have been aggravated by her motor vehicle accident in China last year. As a result, Ms Cai has ongoing pain and restriction of movement in her neck and radiculopathy in both arms and restricted movement in both shoulders. Her fractured ribs appear to have been the result of the motor vehicle accident in China.
At this stage, Ms Cai needs conservative treatment including the modalities of medication, medical supervision and physiotherapy.
I do not believe that Ms Cai is fit for any work for which by way of background and training she is capable of doing and she should be granted a Pension.
Should her son not be able to assist with the heavier part of housework, she might need about six hours per week of Home Care assistance.
Her prognosis for recovery is poor.
There is an abundance of medical reports before the Tribunal.[26] Some of these were prepared outside the qualification period. I have considered such reports where necessary on the basis that such reports may be considered for the purpose of showing eligibility during the relevant qualification period,[27] which in this case is the period between 20 December 2018 and 21 March 2019.
[26] See Medical Reports dated 14 November 2014 (T14/112-114); 24 September 2016 (Insurance File, GIO); 23 February 2017 (T20/122-124); 2 November 2017 (T22/12-130); 1 March 2018 (T30/150); 16 April 2018 (T36/160); 28 May 2018 (T38/162); 8 August 2018 (T41/167); 6 October 2018 (T45/181); 2 November 2018 (T48/186); 23 January 2019 (TT51/224-225); 3 April 2019 (T56/246-8); I July 2019 (T60/259); 23 September 2019 (T64/264-278); 11 March 2020; 9 September 2020 (Applicant’s other material, Part1).
[27] Fanning and Secretary, Department of Social Services [2014] AATA 447, at [31]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123; Shi v Migration Agents Registration Authority [2008] HCA 31.
I propose to examine each of the Applicant’s claimed conditions to determine whether any results in a severe functional impairment.
APPLYING THE IMPAIRMENT TABLES
Condition 1 – Spinal condition (Table 4)
27.I note that in his report of 23 September 2019, Dr Kemp assessed the Applicant’s spinal impairment under Table 4 as having a moderate functional impairment (10 points). He indicated that her condition had stabilised and even with further reasonable treatment was unlikely to result in improvements over the next two years.[28]
[28] T6 at 271; RSFIC, para 5.27.
28.On 11 March 2020, Dr Kemp provided a medical report for the AAT1 proceedings in which he stated that the Applicant’s injuries “appear to be part of a more widespread severe degenerative condition”. With regard to her spinal condition he wrote “Spinal Function. Moderate functional impact” and further noted:
The functional impact on activities involving spinal function is quite severe. This is where the majority of her physical impairment is stemming from. She finds she is unable to perform overhead activities, her neck and lower back movement is greatly restricted with difficulty bending forward to perform even minor activities.[29]
[29] T68 at 315.
29.On 9 September 2020, Dr Kemp provided a further report (lodged with Tribunal 13 September 2020) essentially repeating the information contained in his report of 11 March 2020. This report again rated the Applicant’s spinal function as “moderate functional impact. Impairment rating 10 points”.[30]
[30] Ibid.
30.I note the following reports by Dr Peter Conrad, Surgeon. On 12 December 2018, Dr Conrad examined the Applicant for the purpose of a medico-legal report. He stated that he had not seen the Applicant since 2005 when he examined her for the purpose of a medico-legal report. Her symptoms included back pain radiating down the right leg and neck pain and stiffness. She had been having ongoing physiotherapy, up to the date of her consultation. Dr Conrad found that she had severe restriction of movement in her cervical spine and was able to flex “hands to knees” in her lumbar spine. He opined that “at this stage, Ms Cai needs conservative treatment including the modalities of medication, medical supervision and physiotherapy”.[31]
[31] T49 p187.
31.In a supplementary report dated 12 December 2018, Dr Conrad opined that he did not believe that the Applicant would benefit from any specific treatment but she may need treatment with medication and physiotherapy for her pain…”[32]
[32] T49 p187 - 193.
32.I also note the report by Dr Holford, pain specialist on 26 July 2018.[33] He stated:
[33] T40 at 164,165.
Lucy presents with widespread mechanical pain, arising on a background of a 14 year old work related injury. There is no obvious surgical solution to Lucy's pain. She has experienced limited benefit from medications and developed significant side effects from multiple medications. Her pain has had a significant global impact and she presents as extremely disabled as a result of her pain.
I have recommended Lucy discontinue all medications, aside from Paracetamol and Nurofen, due to the side effects she has experienced. l would not recommend any further medication trials at this stage.
Lucy would benefit from intensive multidisciplinary input to develop an active framework for managing her pain and work on a graded increase in her activity levels and address her depression and the psychosocial impact of her pain. This would be best served by her attending the Pain Clinic at Royal North Shore Hospital and possibly the intensive ADAPT Pain Management Program there. I will therefore refer
Lucy for assessments in the Pain Clinic at Royal North Shore Hospital and would anticipate catching up with her when she attends for that appointment.
I note the following surgical interventions.
1)On 17 April 2018, the Applicant underwent facet joint injections at the L3/4 and L2/3 levels [34]
[34] T37 at 161.
2)On 11 October 2018, the Applicant underwent a guided left L3/4 foraminal injection performed by Dr Ng.[35]
[35] T47 at 185.
34.I note the following reports relating to other treatments:
1) On 25 July 2020, Mr Khoo wrote a letter to Centrelink stating that the Applicant’s “pain in her neck … back … appear to have plateaus [sic][36] and does not appear to be improving despite her being given a comprehensive exercise program and exhausting a full variety of available physiotherapy, chiropractic, exercise and massage treatments in conjunction with visits to the pain clinic”.[37]
[36] Presumably ‘plateaued’.
[37] Lodged with the Tribunal 18 August 2020.
2) On 22 November 2019, Ms Lake provided a report to GIO Insurance. She stated:
“[the Applicant’s] pain is constant and rates as neck pain 8/10 and her lower back pain as 7/10 on the VAS … pain can prevent her from getting to sleep however is not waking her at present. Lucy’s pain has a significant impact on her activities of daily living, particularly cooking and driving.”
I am concerned about the chronicity of Lucy’s complaint, and believe a referral to a psychologist for pain education and support may prove to be beneficial although I believe this has been explored in the past.
Lucy has previously consulted a pain management specialist, but reports the intervention has not made a significant impact on her pain or capacity for work. She has been unable to find effective pain management that is not without considerable side effects, and as a consequence typically uses Panadol Osteo to help diminish the severity of her pain.
…Lucy has reported in the past that hydrotherapy has proven to be beneficial. I am of the opinion that continuing hydrotherapy should help …
I also think that Lucy would benefit from engaging in weight bearing exercise … consulting an exercise psychologist may be prudent.
The chronic pain and limitation has led to a substantial deterioration in her quality of life.
35.I note the following JCA Reports
1) On 20 February 2019, a JCA report was completed and submitted making the following recommendations:
· spinal disorder, lower limb deficiencies, and shoulder and upper arm disorder were fully diagnosed, but not fully treated and stabilised
· musculoskeletal disorder and depression were not fully diagnosed, treated and stabilised, and
· baseline work capacity was 8-14 hours per week with a capacity for work within two years of 15-22 hours per week in light less skilled employment.[38]
[38] T53 at 228.
2) On 7 January 2020, a JCA was completed and submitted which recommended that none of the Applicant’s conditions could be assigned an impairment rating and that the Applicant’s work capacity was 15-22 hours per week.[39]
[39] T64 p281.
36.At the hearing, the Respondent conceded that the Applicant’s spinal condition, along with her upper and lower limb conditions, were fully diagnosed, and that were the Tribunal to find that the condition was fully treated and fully stabilised, then she should be awarded 10 points under impairment Table 4 for her spinal condition. He noted that none of the Reports suggest any higher level of impairment.[40]
[40] Transcript, 19 March 2021, at pp 2, 3, 41, 42.
37.Under Table 4, there is a moderate functional impact (10 points) on activities using lower limbs if:
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) the person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
38.There is a severe functional impact on activities involving spinal function if:
(1) The person is unable to:
(a) perform any overhead activities; or
(b) turn their head, or bend their neck, without moving their 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.39.I note that the Applicant travelled to China on 15 June 2018, returning 29 June 2018; and on 22 February 2019, returning on 15 March 2019; and on 20 November 2019, returning on 27 December 2019.[41] There is no evidence that she received any special service or facilities to enable her travel by commercial airliner, involving many hours of flying time.
[41] RSFIC, para 5.50;T55/242.
I note that on 11 November 2020 she applied for carer’s payment, looking after her husband who suffers from severe osteoarthritis and mild dementia (Alzheimer’s).
41.The Applicant gave evidence to the Tribunal about the amount of assistance she provides to her husband. She assists him with dressing and grooming.[42] She assists him to move from chair to bed and assists him with steps at home, by steadying him, where there was no handrail. She was able to do some housework in 2019 including changing bedsheets with assistance, and used a mobile phone. She also drove her car but if she went shopping her son assisted her with lifting.
[42] Transcript, 19 March 2021, at 10-12.
42.The Respondent argued that what the Applicant was able to do by way of caring for her husband in 2020 was relevant to her condition in early 2019, given what was claimed to be an overall deterioration in her general health.[43]
[43] Transcript, 19 March 2021, at 12.
43.I am satisfied that the nature of the activities she was able to perform during the qualification period suggest a moderate degree of impairment (10 points) for her spinal condition. None of her treating doctors considered that the evidence warranted a finding that she suffered from a severe functional impact for her spinal condition.
44.I find that the degree of functional impairment associated with the Applicant’s spinal condition is moderate, attracting 10 points under Table 4.
Pain treatment options
The Respondent did not concede that the Applicant’s spinal, upper and lower limb conditions were fully stabilised and fully treated because she had failed to pursue treatment options for pain mitigation, such as that recommended by Dr Holford on 26 July 2018.[44]
[44] T40 at 164, RSFIC, para 5.32.
I also note the submission in the RSFIC
5.18. On 28 May 2018, Dr Kemp completed a Medical Certificate stating the Applicant had severe chronic lower back pain; she was affected by pain; and that treatment, past, current and planned included analgesics, osteopathy, “has been under the care of neurosurgeons, orthopaedic surgeon, psychotherapists, physiotherapists, pain management specialists” (T38 p162). However, the Secretary notes that the Applicant has provided no evidence of pain management input and previously stated that hydrotherapy and physiotherapy ceased in 2005 due to financial reasons and her advice to the JCA on 5 February 2018 that she “have not been reviewed with any specialist in the past 2 years” (p139).
47.I note that section 6(9) of the Rules for Applying the Impairment Tables[45] states:
[45] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth).
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(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
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
48.I note the contrast drawn in this section between acute pain as a symptom and chronic pain as a condition. In the case of chronic pain any resulting impairment should be assessed using the Table relevant to the area of function affected.
49.In his report dated 26 July 2018, Dr Holford said that she was experiencing ‘widespread mechanical pain’.[46] He recommended:
[46] T40 at 164,165.
Lucy would benefit from intensive multidisciplinary input to develop an active framework for managing her pain and work on a graded increase in her activity levels and address her depression and the psychosocial impact of her pain. This would be best served by her attending the Pain Clinic at Royal North Shore Hospital and possibly the intensive ADAPT Pain Management Program there.
50.The reference to “intensive multidisciplinary input” contrasts somewhat with the view expressed by Dr Conrad in his report dated 12 December 2018, where he recommended “conservative treatment including the modalities of medication, medical supervision and physiotherapy”.[47]
[47] T49, at 187, at 191.
51.The fact that a treating doctor has recommended further investigation of pain mitigation strategies does not necessarily imply that the underlying condition is not fully treated or fully stabilised: see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404. In that case, Gyles J said:
(17)It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis. Having considered the helpful arguments of counsel on the point, I remain of that view.
(18)It may be expected that an applicant for a benefit such as involved here will present with a properly prepared application supported by a treating doctor. It does not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. No doubt, the decision maker is entitled to make its own investigation of the claim and to form a view adverse to the claimant based upon that investigation. The Departmental procedures and manuals that are in evidence provide for that. That is a very different thing from the decision maker rejecting a claim because it speculates that a hypothetical third party might come to an adverse opinion. That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
52.I note the definition of reasonable treatment in section 6(7) which provides:
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
In light of the medical reports provided by Dr Conrad and Dr Kemp above, it is doubtful whether any such multidisciplinary or psycho-social treatment could be expected to result in significant functional improvement to enable the Applicant to undertake work in the next two years. The fact that Dr Holford suggested further investigation of pain management techniques does not, contrary to the submission advanced by Dr Thompson, necessarily imply that the spinal condition was not fully stabilised and fully treated.
54.However, given the finding that the Applicant did not suffer from a severe impairment during the qualification period, it is not strictly necessary to determine whether the Applicant’s spinal condition was fully treated or stabilised during the qualification period.
Condition 2 – Upper Limb (table 2)
In his report dated 6 October 2018, Dr Kemp stated:[48]
[48] T45 at p181.
You will note the report regarding the right shoulder xray from 12/2/2018 which notes right shoulder subacomial bony lipping related to previous episodes of impingement. The ultrasound performed at the same time reveals a bursal impingement with bursitis associated with a full thickness tear of the supraspinatus tendon. The left shoulder ultrasound also revealed subacromial bursitis with impingement. To assist in the management of this condition a cortisone injection was administered in August 2018. Jing remains very re[s]tricted in the use of her arms. She cannot lift a kettle of water with an unassisted right arm and is unable to carry groceries and generally perform most domestic duties with this disability.
By letter dated 23 September 2019, Dr Kemp assessed the Applicant as having a severe functional impairment (20 points) “with regard to right hand”. He also stated that her condition was stabilised and no further reasonable treatment would result in improvement.[49]
[49] T62 at 269.
In a supplementary report dated 11 March 2020 he stated: “upper limb function. Severe functional impact, re function right hand”.[50] He reported that she had impingement conditions affecting the left and right shoulder; that she had had a cortisone injection in August 2018; and that “she remains very restricted in the use of her arms”. She had a severe functional impact “regarding right hand function” [51]
[50] T68 at 315.
[51] T68 at 321.
On 12 December 2018, Dr Conrad reported that he had examined the Applicant.[52] He examined both shoulders. He identified some loss of abduction and flexion in the right shoulder. He identified no loss of lateral or medial rotation in the left shoulder. He noted that the Applicant had “significantly restricted grip strength in both hands”, with the strength in the right hand being 1kg and left hand 2kg”.[53] The Applicant complained of continued pain and stiffness in her right shoulder and right arm and “all of this is worse when she doing (sic) housework or prolonged lifting, … or reaching anything above shoulder level”.[54] He further stated:
[52] Letter dated 12 December 2018: T49, at 187; RSFIC 5.59.
[53] Letter dated 12 December 2018: T49, at 188.
[54] Letter dated 12 December 2018: T49, at 188.
Ms Cai continues to see Dr Kemp and she takes tablets for pain. She has had ongoing physiotherapy and her last session was a few days ago. In particular, she finds it difficult using vacuum cleaners, polishers or lifting anything heavy. She used to use a computer but she now has difficulty using a computer keyboard. She has some weakness in the right hand. She is normally right-handed and she has difficulty using a pen. She says that she has given up reading a book, as her right hand gets tired and she has difficulty holding the book and for this reason she has used an iPad to read and read newspapers.
In his supplementary report dated 12 December 2018, Dr Conrad assessed the Applicant’s upper limb function as 20 points under Table 2 – Upper Limb Function. He said that she had limited movement in both arms and hands; difficulty carrying most objects; difficulty lifting more than 2kgs in weight; and difficulty using a computer keyboard. [55] He stated:
[55] Letter dated 12 December 2018: T49, at 193: RSFIC, 5.60.
Ms Cai has reached maximal medical improvement and I believe that her condition is stable but may deteriorate over time.
I do not believe that Ms Cai would benefit from any specific treatment but she may need treatment with medication and physiotherapy for her pain and to prevent deterioration. Her condition will only worsen over time.
On 22 November 2019, Ms Lake noted in her report that the Applicant had right shoulder pain and that in her opinion “Lucy experiences pain pertaining to a R rotator cuff tear”, but gave no information as to the functional impairment caused.[56]
[56] RSFIC, 5.63.
Based on this medical evidence, I find that the Applicant’s shoulder and upper arm condition was fully diagnosed.[57]
[57] T28, T29, T39 at 163; RSFIC 5.52.
The Respondent contended that the Applicant’s upper limb condition (like the spinal condition) was not fully treated and fully stabilised. The evidence did not support a finding that the Applicant had received medical treatment for both shoulders,[58] or that any weakness in her hands was related to her upper limb condition,[59] and or that her hand weakness was simply an indicator of the Applicant’s age and ‘deconditioned’ state, as opposed to being the result of any underlying shoulder pathology.[60]
[58] RSFIC, 5.68.
[59] RSFIC, 5.69.
[60] RSFIC, 5.70.
63.The Respondent also argued that the Applicant’s shoulder condition was not fully treated or fully stabilised because the Applicant had not undertaken the pain management treatment recommended by Dr Holford on 26 July 2018.[61] For the reasons given above, I do not think that an adverse inference can be drawn from this referral alone.
[61] T40 at 164; RSFIC 5.67.
64.The question whether the Applicant’s upper limb condition was fully treated and fully stabilised during the qualification period is not straightforward. I propose to consider first whether the upper limb condition produced a severe impairment, and then if necessary, return to consider whether the upper limb condition may be regarded as fully treated and fully stabilised. Under the circumstances of this case, each of these is a necessary hurdle for the Applicant to clear.
65.I turn then to consider the degree of functional impairment.
66.Under Table 2, there is a mild functional impact (5 points) on activities using hands or arms if:
(1)The person 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.
67.There is a moderate functional impact (10 points) on activities using hands or arms.
(1)The 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.
68.There is a severe functional impact (20 points) on activities using hands or arms.
(1)Most of the following apply to the person:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a 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 adaptations;
(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.
Dr Kemp and Dr Conrad each stated that an impairment rating of 20 points was warranted for her upper limb condition. The Respondent says that this assessment is wrong.
70.The Respondent referred the Tribunal to the decision of SM Illingworth in Miller and Secretary, Department of Social Services [2019] AATA 2315, at [101] and [105]:
However, the purpose of the legislative scheme, and in particular Table 2 – Upper Limb Function, is to provide the descriptors that identifies the functional impact a condition has on activities using hands or arms. The Table is not used, unless otherwise specified, as an assessment of the loss of function of a limb in isolation. It is not in the nature of a compensatory assessment for loss of function of that limb. It is to be used as an assessment in determining the functional impact a condition has on the Applicant's ability to perform functions from a whole of person perspective by reference to the specified functions referred to in the Table. ….
Insofar as Dr Leyden purports to provide opinion with respect to the Table 2 – Upper Limb Function impairment, he only considered the function of the right hand alone. For the reasons the Tribunal has referred to above, that is not the correct approach in considering the operation of the Table which requires consideration of the impact the condition has on the Applicants functional impairment when performing activities requiring the use of both hands and arms.
71.The Respondent also referred to Sabeei and Secretary, Department of Social Services [2014] AATA 815 where the Tribunal concluded that a severe impairment rating ‘simply cannot be derived from consideration of functional impairments that affect only one upper limb’; Department of Social Services and Dockerty [2016] AATA 477 where the Tribunal commented that 'that there is no evidence about whether she would have difficulty using an appropriately adapted keyboard, or whether she would have severe difficulty in using a pen or pencil with her (non-dominant) left hand, given time to train herself to do so' (at [24]); and Baxter and Secretary, Department of Social Services [2017] AATA 1544, where SM Stefaniak commented in relation to the 20 point descriptor in Table 2 that:
The upper limbs extend from the shoulder to the fingers and basically if someone, for example, has complete use of one arm and no use of the other, the Tribunal has to look at what a person can actually do, even if it is necessarily just that one good arm; perhaps holding the useless arm just to keep things steady and such like. That is how the criteria work.
72.I also note the reference to Du and Secretary, Department of Social Services [2018] AATA 1824) where Senior Member Stefaniak AM RFD, said, at [39]:
Can the applicant qualify for 20 points under the Table? To do so he must satisfy 3 out of the 5 descriptors. From the evidence given by the applicant and his son, the evidence in the medical documents before the Tribunal, and the Tribunal’s own observations, it appears that he does have limited movement and coordination in both arms and both hands and that he is getting to a stage where one could say that he is having severe difficulty using a pen or pencil. Furthermore, he does not use a keyboard (because he does not know how to) and he can use his left hand to turn the pages of the book without assistance. He also does not have severe difficulty handling, moving, or carrying most objects.
It is fair to say that he has difficulties rather than severe difficulties performing most of the descriptors necessary to get 20 points under Table 2 and so 10 points is the correct allocation.
The decisions to which the Respondent has referred emphasise a ‘whole of person’ functional assessment under Table 2.
I note that during the hearing, the Applicant was uncertain whether she used her left or right hand. At one point she said she could not raise her right hand, at another point she said she used it to lift a single litre carton of milk. She said her right shoulder was worse than her left, but both had problems.
When asked whether she used a computer she said that she did not have one and that she used WeChat on her mobile phone to communicate with friends and family in China. She used both hands on the phone.
She said she did not use the car much and walked about 10-15 minutes to medical and physiotherapy appointments and relied upon her son to help with the shopping.[62] She travelled by train where necessary but felt unsteady on a bus and never took a taxi.
[62] Transcript, 19 March 2021, at 16.
She said that she bought a Chinese newspaper weekly but experienced some difficulty turning the pages. She said she had a “lack of sensation” in her fingers that made it difficult to turn the pages and that the right hand was worse. She said she read the headlines because it was hard to turn the pages and she tried not to do it. She tried reading on the iPad. When pressed she said she never used her left hand to turn pages but had she done so it would have been with difficulty. [63]
[63] Transcript, 19 March 2021, at 21.
The Respondent contended that the medical evidence did not support an impairment rating higher than 5 points, because during the qualification period she was able to use an iPad and a computer, drive a car and do some shopping. She could lift modest weights such as a one-litre carton of milk.
I note that at RSFIC 5.78 the Respondent contends:
In this case, the examination of Dr Conrad indicates that while the Applicant has significantly reduced abduction and flexion in her right shoulder, about half normal range, those movements in her left shoulder are only slightly restricted. He states she would have difficulty lifting objects that are more than 2kg in weight, indicating she can lift lighter objects (including a 1 litre carton of milk). He states she would have difficulty in using a computer keyboard but attributes this primarily to difficulties with sitting for long periods (which cannot be taken into account in an assessment under Table 2). He says she has difficulty holding and using a pen or pencil in her right hand, and while he notes that she would have difficulty turning the pages of a book without assistance, does not specify what type of assistance would be required, noting that the Applicant’s left hand is unaffected and she would, with the use of aids such as a book holder, be able to turn the pages of a book with her left hand.
I note that both Dr Kemp and Dr Conrad assessed the upper limb condition as severe.
I am satisfied that the Applicant’s her upper limb condition is fully treated and fully stabilised.
In light of the Applicant’s evidence as to what she can and cannot do, I am not satisfied that a rating of 20 points is warranted under Table 2 for an upper limb condition.
I note that the Applicant was able to travel overseas on a regular basis, to visit elderly parents. She travelled to China on 15 June 2018, returning on 29 June 2018, and then again by herself on 22 February 2019 and returned on 15 March 2019. She went again on 20 November 2019 returning on 27 December 2019, accompanied by her husband.[64]
[64] Transcript, 19 March 2021, at pp 21-22.
Other conditions
I note that in his letter of 23 September 2019, Dr Kemp suggested a rating of 10 points for Table 1 (Functions requiring Physical Exertion and Stamina)[65] and Table 7 (Brain Function).[66] I agree that no higher rating is required under either Table.
[65] T62 at 266.
[66] T62 at 273.
With regard to Table 1, the Respondent submitted:
5.51. The Secretary notes that on 23 September 2019, Dr Kemp suggested that the Applicant’s spinal impairment also warranted a rating of 10 points under Table 1 – Functions requiring Physical Exertion and Stamina (T62 p266). The Secretary contends that it was not open to the Tribunal to assign an impairment rating for the Applicant’s pain under Table 1, as the Applicant’s pain condition was not fully treated and stabilised (as contended above) and, even if it were, the Applicant’s impairments are adequately rated under the function-specific tables.[67]
[67] RSFIC, para 5.51.
I accept the submission that a rating for pain associated with the Applicant’s spinal condition should be referred to Table 4 (spinal condition) rather than Table 1. In any event, the evidence falls short of suggesting a severe impairment under Table 1.
The medical evidence does not support a finding of severe functional impairment for Table 1 (Functions requiring Physical Exertion and Stamina), or Table 7 (Brain Function).[68]
[68] T62 at 273.
On the basis of the medical evidence, the Applicant is not entitled to an impairment rating of 20 points under a single Impairment Table, although there is little doubt that overall she has a rating of at least 20 points, taking account of her spinal and upper limb conditions alone.
Regrettably, the only thing missing in her 2018 application for DSP is the completion of the requisite number of Program of Support hours.
For these reasons, the decision of the AAT1 made on 6 May 2020 is affirmed.
CONCLUSION
The decision under review, being the decision of the AAT1 dated 6 May 2020, is affirmed.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member
....................................[sgd]....................................
Associate
Dated: 18 June 2021
Date(s) of hearing: 19 March 2021 Applicant: Self-Represented Solicitors for the Respondent: Dr Stephen Thompson, Services Australia
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Statutory Interpretation
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