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

Collins and Secretary, Department of Social Services (Social services second review) [2017] AATA 1147 (26 July 2017)
Division:GENERAL DIVISION
File Number: 2016/5078
Re:Michelle Collins
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg

Date:26 July 2017
Place:Brisbane

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

CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
26 July 2017
INTRODUCTION AND CLAIMS HISTORY

Ms Collins was a recipient of the Disability Support Pension (“DSP”) between 20 May 2011[1] and 4 May 2016 for a left shoulder impairment. However, on 4 May 2016, after a medical review, Ms Collins’ DSP was cancelled by the Department of Human Services (Centrelink).[2]
[1] Exhibit 1, T documents, T 31, page 152, Centrelink records.
[2] Exhibit 1, T Documents, T 22, page 112, Letter from Centrelink to Ms Collins dated 4 May 2016.
Ms Collins sought a review of Centrelink’s decision to cancel her DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Collins’ medical conditions did not attract 20 points or more under the Impairment Tables and that she did not have a continuing inability to work.[3]
[3] Exhibit 1, T Documents, T25, pages 126 – 130, Decision of ARO dated 25 May 2016.
On 24 June 2016, Ms Collins lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[4] The SSCSD rejected Ms Collins’ claim and affirmed the ARO’s decision on 16 August 2016.[5]
[4] Exhibit 1, T Documents, T 32, page 166, Centrelink records.
[5] Exhibit 1, T Documents, T2, pages 7 – 15, SSCSD’s Decision and Reasons for Decision dated 16 August 2016.
Ms Collins has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1- 6, Ms Collins’ Application for Review dated 22 September 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Collins must have a physical, intellectual or psychiatric impairment;
(b)Ms Collins’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Ms Collins must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[8]
[8] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Ms Collins must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 4 May 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Collins’ impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[9]
DID MS COLLINS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
MS COLLINS’ MEDICAL CONDITIONS
Upper Limb Conditions
[10] Determination, s 3.
Left Shoulder
In 2006 Ms Collins was diagnosed with rotator cuff syndrome as a result of a workplace incident.[11] In 2007 Dr Phillip Duke, Orthopaedic Surgeon, examined Ms Collins because she was still experiencing pain in her left shoulder and reported that:
(a)Ms Collins had had an injury to the neck and cervicobrachial region;
(b)Ms Collins did not really have a shoulder problem; and
(c)the injections into her shoulder had not assisted and neither had the acromioplasty operation.
[11] Exhibit 1, T documents, T4, page 45, report of Dr GJ Bookless dated 16 November 2006.
Dr Duke recommended that Ms Collins seek physiotherapy and pain management advice.[12]
[12] Exhibit 1, T documents, T5, pages 46 – 47, report of Dr Duke dated 16 March 2007.
Ms Collins was then referred to a specialist pain management consultant, Dr Alan Howell, who reported that a CT scan of Ms Collins neck showed minimal degenerative changes and that after performing diagnostic facet joint injections into the neck there was no pain relief. Dr Howell agreed with Dr Duke that the pain is probably not coming from her shoulder and thought that she had some kind of spinal cord windup or central excitation. Dr Howell prescribed Lyrica and Amitriptyline and said that they should now start looking at pain management programs.[13]
[13] Exhibit 1, T documents, T6, page 48, report of Dr Howell dated 8 October 2007.
An x-ray and ultrasound of Ms Collins left shoulder was performed in July 2008 and found a full thickness tear of the anterior supraspinatus tendon.[14] An arthrogram was then performed using local anaesthetic and found that changes of the acromioclavicular joint (“AC joint”) suggested degenerative change or inflammation but no significant rotator cuff lesion was detected.[15]
[14] Exhibit 1, T documents, T7, page 49, x-ray and ultrasound scan report dated 24 July 2008.
[15] Exhibit 1, T documents, T8, page 50, Arthur Gramm report dated 29 July 2008.
Dr Andrew Whittle, Orthopaedic Surgeon, reported in 2008 that he had performed an ultrasound-guided steroid injection to her AC joint but that it had produced no short-term or long-term benefit and that this argued very strongly against any surgical treatment.[16]
[16] Exhibit 1, T documents, T 10, page 52, report of Dr Whittle dated 7 August 2008.
A further ultrasound and x-ray of the left shoulder was performed in March 2011 which again showed no rotator cuff injury but possible mild osteoarthritis of the AC joint.[17]
[17] Exhibit 1, T documents, T 14, page 73, ultrasound and x-ray report dated 21 March 2011.
In 2013 Ms Collins had shoulder arthroscopy surgery.[18]
[18] Exhibit 1, T documents, T 17, page 88, operation record dated 22 March 2013.
At Centrelink’s request a medical review of Ms Collins was conducted in March 2016. Dr Yapa, Ms Collins’ General Practitioner, reported that Ms Collins was still suffering from osteoarthritis in the left shoulder and that current treatment included Tramel medication and heat packs. In the past Dr Yapa reported that Ms Collins had had physiotherapy, acupuncture, steroid injections and acromioplasty.[19]
[19] Exhibit 1, T Documents, T 20, pages 97-99, Medical review report of Dr Yapa dated 21 March 2016.
In December 2016 Dr Yapa reported that Ms Collins has a long history of left shoulder pain and is currently on Lyrica and Edronax pain control.[20]
[20] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 2 December 2016.
Left Elbow
In 2013 Ms Collins had elbow arthroscopy surgery and a large bony loose body was removed and the ulnar nerve was released.[21]
[21] Exhibit 1, T documents, T 17, page 88, operation record dated 22 March 2013.
Left Wrist
An MRI of Ms Collins’ left wrist performed on 10 February 2016 found increased fluid in the distal radioulnar joint and a possible small degenerative tear of the triangular fibrocartilage.[22] As a result of the MRI Dr Whittle suggested a trial of an ultrasound-guided steroid injection.[23]
[22] Exhibit 1, T documents, T 18, page 89, MRI report dated 10 February 2016.
[23] Exhibit 1, two documents, T 19, page 90, report of Dr Whittle dated 16 March 2016.
Dr Yapa reported on 30 November 2016 that Ms Collins would be unlikely to return to work in the near future due to her ongoing left wrist pain.[24]
[24] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 30 November 2016.
In December 2016 Dr Yapa reported that Ms Collins was still suffering from left wrist pain.[25]
[25] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 2 December 2016.
Right Shoulder
In June 2011 Dr Yapa reported that Ms Collins was having intermittent right shoulder pain due to bursitis from overuse. There is no other medical reference to the right shoulder until November 2016 when Ms Collins had an ultrasound. The ultrasound of her right shoulder found calcific tendinopathy of the supraspinatus tendon with a subacromial subdeltoid bursitis. Dr Sally Sojan, Radiologist, said this condition would be amenable to ultrasound-guided local anaesthetic steroid injection to attempt symptomatic relief.[26]
[26] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment C, report of Dr
Sojan dated 23 November 2016.
Dr Yapa reported that on 30 November 2016 Ms Collins reported right shoulder pain and that she would be unlikely to return to work in the near future.[27]
[27] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 30 November 2016.
In December 2016 Dr Yapa reported that Ms Collins:
(a)developed right shoulder pain two weeks ago (that is in the middle of November 2016) and that she has had a steroid injection without any improvement; and
(b)is currently on Lyrica and Edronax pain control.[28]
[28] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 2 December 2016.
A medication list shows that since at least June 2015 Ms Collins had been prescribed various neuropathic pain and anti-inflammatory medications.[29]
[29] Exhibit 1, T documents, T 29, pages 141-142, medication list.
Mental Health Condition
In April 2016 Ms Collins was referred to Mr Alan Bartlett, Psychologist, for treatment of her depression and anxiety. Mr Bartlett says that Ms Collins’ results on the Kessler Psychological Distress Scale (K10) suggests she is likely to have a severe psychological disorder and that it is most likely associated with the chronic pain in her forearm/wrist and family stressors including the health of her elderly grandmother. Mr Bartlett reports that he had seen Ms Collins on six occasions between April 2016 and August 2016 and that she had responded well although progress had been slow. In Mr Bartlett’s opinion Ms Collins would struggle to return to employment at least in the short term.[30]
[30] Exhibit 1, T documents, T 28, page 140, report of Mr Bartlett dated to August 2016.
A medication list shows that in June 2016 Ms Collins had been prescribed with depression medication.[31]
[31] Exhibit 1, T documents, T 29, pages 141-142, medication list.
In December 2016 Dr Yapa reported that Ms Collins was seeing a psychologist because she was feeling low since her grandmother passed away in October 2016.[32]
[32] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment D, report of Dr
Yapa dated 2 December 2016.
Asthma
Dr Yapa reported in the 2016 medical review for Centrelink that Ms Collins was suffering from asthma and reported that it was generally well managed and had minimal or limited impact on Ms Collins’ ability to function.[33]
[33] Exhibit 1, T Documents, T 20, page 103, Medical review report of Dr Yapa dated 21 March 2016.
In relation to Ms Collins asthma the JCA noted that the condition is well managed and not considered to cause a work-related impairment.[34]
[34] Exhibit 1, T Documents, T21, page 108, Job Capacity Assessment dated 29 April 2016.
Trigeminal neuralgia
In 2015 Ms Collins presented to hospital with Trigeminal Neuralgia on the right-hand side of her face. Ms Collins presented to the Toowoomba Hospital again with right-sided facial pain and headaches on 10 January 2017. A report from the Toowoomba Hospital dated 10 January 2017 notes that:[35]
(a)Ms Collins had an MRI of her head which was reported as normal;
(b)Ms Collins had been taking cabamazepine and pregabalin for the pain; and
(c)they had provided her with a prescription for oxycodone.
[35] Exhibit 4, Toowoomba Hospital Emergency Department report dated 10 January 2017.
At the hearing Ms Collins said that this was a condition that tends to come and go and that it was not present around the time her DSP was cancelled. There is no other medical evidence available concerning this condition and it was accepted by Ms Collins that this condition was not relevant to this application. Ms Collins said that investigations in relation to the condition and how it should be treated are ongoing.
Conclusion on Impairment
The Secretary accepts that Ms Collins suffers from upper limb impairments (wrist, elbow and shoulder) for the purposes of section 94(1)(a) at the Qualification Date.[36]
[36] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 3 March 2017, para [29].
In light of the above evidence I conclude that at the Qualification Date Ms Collins suffered from Upper Limb Impairments (left side) for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
While I acknowledge that Ms Collins also suffers from asthma, there is no evidence to establish that this condition affects her functional capacity or caused impairment at the Qualification Date.
I acknowledge that Ms Collins’ now also suffers from right shoulder pain, however, this current condition was not diagnosed until 6 months after the Qualification Date and therefore cannot be considered in relation to this DSP claim.
I will discuss Ms Collins’ depression condition further below.
DOES MS COLLINS’ IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[37] They are function based[38] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[39]
[37] Determination, s 4(2) and 5(2)(a).
[38] Determination, s 5(2)(b) and (c).
[39] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[40]
(a)Ms Collins’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[40] Determination, see s 6(3).
Ms Collins’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[41]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[41] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[42] the following must be considered:[43]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[42] For the purposes of ss 6(4)(a) and (b) of the Determination.
[43] Determination, see s 6(5).
A condition is fully stabilised[44] if:[45]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[46]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[44] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[45] Determination, see s 6(6).
[46] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables I must first consider Ms Collins’ medical history, in relation to the condition causing the Impairments.[47]
UPPER LIMB IMPAIRMENTS
[47] Determination, see s 6(2).
Is Ms Collins’ Left Shoulder Impairment permanent and likely to persist for at least 2 years?
There was some diagnostic divergence by Ms Collins’ treating medical practitioners concerning the basis for the severe pain that Ms Collins says that she was in, in relation to her left shoulder. In 2006 the diagnosis was rotator cuff syndrome. However, an ultrasound in 2008 indicated that there was no rotator cuff injury and rather a possible mild osteoarthritis. Despite facet joint injections, acromioplasty and arthroscopy the only diagnosis remaining from the medical evidence seems to be mild osteoarthritis.
On 20 April 2016 a JCA was conducted face-to-face with Ms Collins by a Registered Nurse and Rehabilitation Counsellor. The JCA assessors’ report states that Ms Collins’ osteoarthritis of the left shoulder is fully diagnosed, fully treated and fully stabilised.[48]
[48] Exhibit 1, T Documents, T21, page 106 , Job Capacity Assessment dated 29 April 2016.

The medical evidence supports a finding that Ms Collins has had all recommended treatment and that there is nothing further to be done other than continued pain management. I find that as at the Qualification Date the medical evidence above supports a finding that Ms Collins’ left shoulder impairment of mild osteoarthritis is permanent and likely to persist for at least two years.
The Secretary concedes that Ms Collins’ Left Shoulder Impairment was fully diagnosed, fully treated and fully stabilised at the Qualification Date.[49]
[49] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 3 March 2017, para 30.
Is Ms Collins’ Left Elbow Impairment permanent and likely to persist for at least 2 years?
In June 2016 Dr Benjamin Hope, Orthopaedic Surgeon reported that despite the surgery on Ms Collins’ elbow in 2013, a nerve conduction study showed only very mild abnormality of the ulnar nerve at the elbow which is not in keeping with the severity of her described symptoms.[50]
[50] Exhibit 1, T documents, T 27, page 139, report of Dr Hope dated 10 June 2016.
Again, this indicates that there is some doubt, at least by Dr Hope, of the exact reason for the pain described by Ms Collins regarding her left elbow impairment. There is consistent medical evidence of very mild abnormality of the ulnar nerve. The Secretary submits therefore that the left elbow condition has been fully diagnosed.
The medical evidence supports a finding that Ms Collins has had all recommended treatment and that there is nothing further to be done other than continued pain management. I find that as at the Qualification Date the medical evidence above supports a finding that Ms Collins’ left elbow impairment of a very mild abnormality of the ulnar nerve is permanent and likely to persist for at least two years.
Is Ms Collins’ Left Wrist Impairment permanent and likely to persist for at least 2 years?
A small degenerative tear was discovered in Ms Collins’ left wrist in February 2016. I note that in April 2016 the JCA considered Ms Collins’ wrist impairment temporary.[51]
[51] Exhibit 1, T Documents, T21, page 107, Job Capacity Assessment dated 29 April 2016.
However, as with the left shoulder impairment the medical practitioners seem to be unsure as to the cause of the pain Ms Collins describes.
In June 2016 Ms Collins was reviewed by Mr Lachlan Shaddock, Occupational Therapist at Toowoomba Hand Therapy. Mr Shaddock reports that during the consultation Ms Collins reported:
(a)minor wrist pain at rest;
(b)significant pain of her wrist when pushed beyond her comfortable active range; and
(c)an abnormal sensation throughout the entirety of the left arm distal to the shoulder.
Mr Shaddock provided Ms Collins with wrist exercises and a brace and encouraged her to attempt light functional use and made plans for further review in two weeks. However Ms Collins never attended that consultation and Mr Shaddock reported that there was no ongoing treatment scheduled.[52]
[52] Exhibit 2, Secretary's statement of facts issues and contentions dated 3 March 2017, attachment A, report of Mr
Shaddock dated 6 September 2016.
In June 2016 Ms Collins was also reviewed by Dr Benjamin Hope, Orthopaedic Surgeon who reported that the MRI scan of her wrist showed thinning and a possible small central tear but that the symptoms described by Ms Collins are well in excess of the objective pathology.[53]
[53] Exhibit 1, T documents, T 27, page 139, report of Dr Hope dated 10 June 2016.
This indicates that there is some doubt again, at least by Dr Hope, of the exact reason for the pain symptoms described by Ms Collins regarding her left wrist impairment. However there is consistent medical evidence of a small central tear.
Dr Hope reported that:
(a)surgery is unlikely to offer any assistance with her severe disabling symptoms and suggested that she try a hand therapy vaulted splint for her wrist; and
(b)it is unlikely the condition will improve in the longer term because she describes very little change over the last few years except perhaps that of a gradual deterioration.[54]
[54] Exhibit 1, T documents, T 27, page 139, report of Dr Hope dated 10 June 2016.
The Secretary submits therefore that the tear in the wrist has been fully diagnosed and that even though Ms Collins may not have undertaken all reasonable treatment for the condition as at the Qualification Date, the medical evidence would support a finding that significant functional improvement to a level enabling Ms Collins to undertake work the next two years is not expected to result, even with reasonable treatment (see section 6(6) of the determination) and therefore the condition can be considered fully stabilised.[55]
[55] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 3 March 2017, para 32.
The medical evidence supports a finding that Ms Collins’ has a possible degenerative tear in her left wrist.[56] Dr Hope has reported that this condition is unlikely to improve over the next few years and that Ms Collins remains “subjectively very disabled”. Dr Hope goes on to say that Ms Collins describes her symptoms are severe and disabling.
[56] Exhibit 1, T documents, T 18, page 189, MRI report dated 10 February 2016.
Given the report of Dr Hope I am prepared to find that Ms Collins left wrist impairment was permanent for the purposes of the Act.
Using the Impairment Tables
I have to assess the level of impact of Ms Collins’ Left Shoulder Impairment against the descriptors[57] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[58]
[57] Determination, see ss 3 and 5(3).
[58] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[59]
[59] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[60]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[60] Determination, see s 7.
I must not take into account the following information in applying the Tables:[61]
(a)symptoms reported by Ms Collins in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Collins’ local community.
[61] Determination, see s 8.
Which Tables are appropriate are determined by:[62]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[62] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[63]
[63] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[64]
[64] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[65]
[65] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[66]
[66] Determination, see s 11(5).
Evidence Identifying the Loss Of Function
The JCA conducted in April 2016 reported that Dr Yapa reported that the functional impact of the left dominant arm condition was that Ms Collins experiences trouble with daily activities such as washing, carrying, lifting, and that she is unable to drive for long periods and unable to do above shoulder activity.[67]
[67] Exhibit 1, T Documents, T21, page 106, Job Capacity Assessment report dated 29 April 2016.
The JCA reported in April 2016 that Ms Collins reported she:[68]
[68] Exhibit 1, T Documents, T21, page 106, 108, Job Capacity Assessment report dated 29 April 2016.
·is independent with self-care and is able to wash and brush her hair and attend dressing and grooming
·modifies how she completes tasks around the home
·is able to attend simple writing tasks such as filling out forms and is able to use a standard keyboard and cash register
·can unscrew a lid on a soft drink bottle although she occasionally has to use grip pads to assist
·experiences disrupted sleep patterns and uses medication therapy at night
·is able to carry her groceries and attend to her own washing and hanging out close
·has minimal manual dexterity limitations in her left arm and that she is generally able to attend tasks which require fine motor skill with minimal impairment
·has no difficulty turning the pages of a book
·does not require any adaptive devices
The JCA noted that Ms Collins has been able to sustain employment without disability support interventions for the past six years as a console operator and that in the last six months her working hours have increased.[69]
[69] Exhibit 1, T Documents, T21, page 106, Job Capacity Assessment report dated 29 April 2016.
On 14 April 2016 Ms Collins’ current functional capacity was assessed for the purpose of determining her work capabilities as a customer service attendant with Freedom Fuels (“Capacity Evaluation”).[70]
[70] Exhibit 1, T documents, T 23, pages 114 – 123, functional capacity evaluation dated 12 May 2016.
The Capacity Evaluation determined that Ms Collins demonstrated an ability to:
·lift up to 4 kg from bench to bench up to 3 times/hour
·lift up to 3.3 kg from floor to the bench up to 3 times/hour
·lifting up to 2.3 kg bench to her shoulder up to 3 times/hour
·carrying up to 3.25 kg over 10 m from bench to bench
·reach forward and reach overhead
·stoop
·stand, walk and squat
The conclusion of Michelle Cheang, the Rehabilitation Consultant/Occupational Therapist who conducted the Capacity Evaluation, was that Ms Collins was suitable for sedentary work and that Ms Collins should complete a pain management program to address her entrenched pain avoidant behaviour.[71]
[71] Exhibit 1, T documents, T 23, pages 114 – 123, functional capacity evaluation dated 12 May 2016.
At the hearing before me Ms Collins gave evidence that:
·she did not dispute the findings of the Capacity Evaluation and pointed out that in relation to all the tasks she was asked to perform during that evaluation she essentially used her right arm to perform most tasks and her left arm to balance or hold items in place;
·she has learnt to adapt to almost all tasks and predominantly relies on her right arm and hand to complete tasks because of the pain she experiences in her left arm and her restricted overhead movement;
·she can hang washing on the line by pulling down the washing line with her right hand so that she does not have to reach up with her left-hand. Ms Collins says she uses this technique for a variety of tasks and when she has to reach overhead;
·she cannot mop and sweep the floor because of the repetitive movement in shoulder;
·when she worked at Freedom Fuels she said she did the best that she could with the limitations that she has, however after the Capacity Evaluation, Freedom Fuels assessed her as not able to continue working as a console operator;
·she did not dispute the JCA report referred to in paragraph 76 above;
·her abilities and condition has worsened since May 2016 and she no longer is able to use a keyboard or write for any significant period of time.
The question therefore is what relevant Table should be considered and what, if any, Impairment Rating should be assigned.
RELEVANT IMPAIRMENT TABLE AND IMPAIRMENT RATING
In light of the evidence I consider that Table 2 of the Determination, which deals with Upper Limb Function, is the relevant Table.
The introduction to Table 2 provides that:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submits that an appropriate Impairment Rating is 5 points.[72]
[72] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 3 March 2017, para 37.
Ms Collins submits that her Upper Limb Impairment warrants a higher impairment rating.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities requiring physical exertion or stamina.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities using hands or arms.
(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.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities using hands or arms.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities using hands or arms.
(1)The person has difficulty with most of the following:
(a)picking up a one litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of two hands together (eg. a cardboard box);
(c)       holding and using a pen or pencil;
(d)       doing up buttons or tieing shoelaces;
(e)      using a standard computer keyboard;
(f)       unscrewing a lid on a soft drink bottle
The evidence demonstrates that Ms Collins can:
(a)manage most daily activities requiring the use of the hands and arms;
(b)pick up heavier objects;
(c)generally attend tasks which require fine motor skill with minimal impairment; and
(d)reach out to pick up objects.
However, the evidence also suggests that all of those activities are done with some difficulty due to her needing to rely on her right arm to complete those tasks. The Capacity Evaluation assessed Ms Collins ability to reach forward and to reach overhead and she was observed stabilising her left hand against the work surface with the right hand performing the majority of active movements. Ms Collins was also noted to have complained of pain to her wrist whilst performing the reaching forward and reaching overhead activities.
Based on Ms Collins evidence and the corroborating evidence of the JCA and Capacity Evaluation I find that an Impairment Rating of five points is appropriate for Ms Collins’ Upper Limb Impairment under Table 2.
Ms Collins’ Chronic Pain
In association with Ms Collins’ Upper Limb Impairment, she has persistently complained of pain and her current treatment for this Impairment is pain management.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that 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).
I have already found that the condition causing the chronic pain, the Upper Limb Impairment, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to that condition. I do not consider that the evidence justifies any increase in that Impairment Rating.
DEPRESSION
In April 2016 Mr Bartlett, Psychologist, reported that the Kessler Psychological Distress Scale suggested Ms Collins is likely to have a severe psychological disorder which is most likely associated with the chronic pain in her forearm and wrist and family stressors including the health of her elderly grandmother.[73]
[73] Exhibit 1, T documents, T 28, page 140, report of Mr Bartlett dated to August 2016.
In June 2016 Ms Collins was prescribed with depression medication.[74] At the hearing Ms Collins said that she was not currently taking any depression medication.
[74] Exhibit 1, T documents, T 29, pages 141-142, medication list.
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
Mr Bartlett is not a clinical psychologist[75] and there is no evidence of a diagnosis being made or confirmed by a psychiatrist or clinical psychologist as at the Qualification Date. Ms Collins confirmed at the hearing that she had not had a review by a psychiatrist and that her general practitioner had recommended that she see Mr Bartlett for treatment of depression and was not aware of the clinical psychologist requirement in Table 5. However, Table 5 of the Determination is clear that there must be evidence from a clinical psychologist without which no impairment rating can be assigned.
[75] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 3 March 2017, Attachment E, health
practitioner details of Mr Allan Robert Bartlett.

As a result I find that Ms Collins’ mental health condition was not fully diagnosed as required by the Act. Therefore, no Impairment Rating can be assigned for this condition.
WERE MS COLLINS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
I have found that the Impairment Rating for Ms Collins’ Upper Limb Impairment was 5 points.
DID MS COLLINS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Collins’ Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Ms Collins had a “continuing inability to work” (as defined in section 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Ms Collins’ claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result she does not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[Sgd]............................................
Associate
Dated: 26 July 2017

Date of hearing: 12 July 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1147

26 July 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	12 July 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services