De Silva Wijeyeratne and Secretary, Department of Social Services (Social services second review)

De Silva Wijeyeratne and Secretary, Department of Social Services (Social services second review) [2018] AATA 2443 (24 July 2018)
Division:GENERAL DIVISION
File Number(s): 2017/4253
Re:Mrs Shyama De Silva Wijeyeratne
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms Anna Burke, Member
Date:24 July 2018
Place:Melbourne

The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Ms Anna Burke, Member
Catchwords
SOCIAL SECURITY – disability support pension –– whether qualified – bilateral knee and mental health conditions - whether impairment attracts rating of 20 points or more under Impairment Tables – whether program of support had been undertaken.
Legislation
Administrative Appeals Tribunal Act 1975
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Act 1991
Secondary Materials
Guide to Social Security Law
REASONS FOR DECISION
Ms Anna Burke, Member
24 July 2018
INTRODUCTION

Mrs Shyama De Silva Wijeyeratne (the Applicant) is seeking a second-tier review of the decision made by the Secretary, Department of Social Services (the Respondent) to refuse to grant the Applicant the Disability Support Pension (DSP) pursuant to section 94(1) of the Social Security Act 1991 (the Act).
On 5 January 2017 Centrelink found that Mrs De Silva Wijeyeratne was not entitled to the DSP as she did not meet the requirements of the Act. Centrelink is the service provider for the Department of Human Services (the Department).
On 15 February 2017 this decision was affirmed by an Authorised Review Officer (ARO). The Applicant sought a review of this decision in the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), which affirmed the Department’s decision on 16 June 2017.
This application to the General Division of the Administrative Appeals Tribunal (AAT2) was heard on 2 February and 9 May 2018. Mrs De Silva Wijeyeratne was represented by Mr Ranjith Jayasuriya. Mr Pietro Nacion of Sparke Helmore appeared for the Respondent. The Tribunal was assisted by Sinhalese interpreters Mr Jude Mudalige and Mr Stephen Kudaligama.
THE ISSUES IN CONTENTION
The issues in contention are whether Mrs De Silva Wijeyeratne:
(a)has a physical, intellectual or psychiatric impairment;
(b)has a diagnosed condition which has been fully diagnosed, treated and stabilised and is likely to continue for at least two years;
(c)has a fully diagnosed, treated and stabilised condition which attracts at least 20 points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(d)has a continuing inability to work.
BACKGROUND
Mrs De Silva Wijeyeratne, who is now 58 years of age, was born in Sri Lanka. She married at age 17 and migrated to Australia in 1990. She currently lives in her own home with her husband. They have an adult son who is married, and a grandchild. Mrs De Silva Wijeyeratne worked for a metal company, Greer Industries Pty Ltd, from 1991 until December 2003 as a dye setter involved in the manufacture of tools. She had set daily targets and had to operate a machine by pressing the pedals with her foot. This work involved her standing on her feet all day and it was described as a heavy job for men and an extremely strenuous one for a woman of her stature. She ceased work in 2003 because of her injuries and was in receipt of WorkCover payments until a court settlement in 2008 granted her a Serious Injury Certificate, having determined serious injury had resulted in a permanent impairment.
On 24 November 2016 Mrs De Silva Wijeyeratne made an application for DSP, citing her medical conditions as bilateral knee cruciate ligament repair, chronic lower back pain, depression, osteoarthritis, fatty liver, fibrocystic breast disease, Gastro-oesophageal reflux, hypercholesterolemia, benign paroxysmal positional vertigo, irritable bowel syndrome, left ovarian cyst, saphenous vein incompetence, asthma, bursitis, fibromyalgia syndrome, renal cyst, right rotator cuff tendinitis, chronic neuropathic pain syndrome, bilateral plantar fasciitis and bilateral sprained ankle.
On 4 January 2017 Centrelink had a job capacity assessment (JCA) conducted on Mrs De Silva Wijeyeratne. The JCA reported the following in respect of the Applicant’s medical conditions:
·     lower limb deficiencies – confirmed as bilateral knee condition - considered fully diagnosed, treated and stabilised, but no medical evidence to indicate any functional impacts of the knees and therefore a zero rating was applied;
·     musculoskeletal disorder – indicated by bilateral sprained ankle and plantar fasciitis - assessed as permanent and fully diagnosed, treated and stabilised, but is currently well-managed and has no impact on function;
·     chronic pain - not considered fully diagnosed, treated or stabilised, as there had been no formal diagnosis to date and there were further planned investigations and treatment which may improve symptoms;
·     liver disorder – medical evidence indicates fatty liver but no symptoms were reported. The condition is considered fully diagnosed, treated and stabilised, but has no impact on her function;
·     diabetes non-insulin-dependent - assessed as permanent, fully diagnosed, treated and stabilised, but the condition is well-managed and has no impact on function;
·     depression – not considered fully diagnosed, treated or stabilised as there was no current medical evidence from a psychiatrist or clinical psychologist to confirm diagnosis or functional impacts;
·     asthma - considered permanent and fully diagnosed, treated and stabilised, but is well-managed and has no impact on function; and
·     spinal disorder - considered fully diagnosed but not considered fully treated or stabilised as reasonable treatment to date had not been accessed by the Applicant, and there was no current medical evidence to verify treatments and current functional impacts.
Mrs De Silva Wijeyeratne was assessed as having a baseline work capacity of 8-14 hours per week and 15-22 hours per week in 2 years with intervention.
On 5 January 2017 Centrelink wrote to Mrs De Silva Wijeyeratne to inform her that her application for DSP had been refused because she did not have an impairment rating of 20 points or more under the Impairment Tables.
On 15 February 2017, upon internal review, a departmental ARO affirmed the earlier JCA report, finding that Mrs De Silva Wijeyeratne’s total impairment rating was nil for all of her conditions. This was because her medical conditions had either not been fully treated or stabilised and there was insufficient evidence in relation to the functional impact of her conditions to make an assessment; or her conditions were well-managed and had no functional impact. The ARO also found that Mrs De Silva Wijeyeratne had a continuing ability to work and had not met the program of support requirement under s 94(2)(aa), because she had not actively participated in a program of support for a period of 18 months during the last 36 months.
On 16 June 2017 AAT1 affirmed the decision of the ARO to reject Mrs De Silva Wijeyeratne’s DSP claim and found:
·she was suffering from long-standing bilateral knee pain which was causing some difficulty walking to local facilities, walking around a supermarket without a rest, and climbing stairs. She can mobilise effectively but needs to use a walking stick, and therefore the condition was having a mild functional impact on her activities using lower limbs. A rating of five points were assigned under Table 3 - lower limb function (table 3);
·conditions of diabetes, fatty liver, asthma and bilateral plantar fasciitis were not considered fully diagnosed, treated and stabilised so nil points could be awarded;
·her psychological condition could not be considered fully diagnosed, stabilised or treated at the time of the claim, as there was no evidence from a psychiatrist or clinical psychologist in relation to her psychological condition, and therefore nil points were awarded;
·her spinal disorder was considered fully diagnosed but not treated and stabilised for the purposes of eligibility for the DSP, and therefore an impairment rating could not be assigned; and
·it was not necessary to make a finding in respect of undertaking a program of support as Mrs De Silva Wijeyeratne was not found to have enough points under the Impairment Tables.
On 17 July 2017 Mrs De Silva Wijeyeratne sought a review of the AAT1 decision by this division of the Tribunal, as:
I did not have an interpreter at the previous AAT hearing last month. My representative was not allowed to translate what I meant not allowed to prompt what I meant or what happened at the Centrelink review meeting that lasted only for less than 10 minutes, and who was not a medical person yet decided on my medical impairments. I am severely disabled and incapacitated and suicidal as I am left with no means of support. I have a serious injury which translates to more than 33% whole person impairment as decided by courts previously and settled a common law claim for work-related injury that ruined my life.
In accordance with Schedule 2, Section 4(1) of the Social Security (Administration) Act 1999 (the Administration Act), Mrs De Silva Wijeyeratne’s qualification for DSP is to be determined from the date of her claim to a date 13 weeks thereafter, that being 23 February 2017 (the qualifying period).
Relevant Legislation and Issues
Section 94(1) of the Act provides that a person is qualified for a DSP if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
Section 6(3)(a) of Impairment Tables states that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
For a condition to be a severe impairment the Act at 94(3B) provides:
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.
Example 1: A person's impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Section 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(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.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”.
Section 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Section 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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; or
(ii)     there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 6(7) of the Impairment Tables provides that for the purposes of section 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.
The determinative issue in this review is whether at the time of her application, Mrs De Silva Wijeyeratne suffered an impairment of 20 points or more under the Impairment Tables and if so, whether she had a continuing inability to work.
Section 5(2) provides that the Impairment Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms, and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of impairment, and not to assess conditions.
Section 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment “must be assessed on the basis of what a person can, or could do, not on the basis of what a person chooses to do or what others can do for the person”.
Section 6(8) of the Impairment Tables further provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned.” In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment rating from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents), and additional medical reports provided by Mrs De Silva Wijeyeratne, as well as her oral evidence at the hearing.
DOES MRS DE SILVA WIJEYERATNE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for the DSP, in the first instance, a person must suffer from an impairment.
The parties accept that Mrs De Silva Wijeyeratne is suffering from bilateral knee pain, lower back pain, psychological conditions, diabetes, fatty liver, asthma, bilateral plaintiff fasciitis and chronic pain conditions. Accordingly, the Tribunal finds that Mrs De Silva Wijeyeratne is suffering from these conditions and meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairments rate 20 points or more under the Impairment Tables.
DOES MRS DE SILVA WIJEYERATNE HAVE MEDICAL CONDITIONS THAT CAN BE RATED AT 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Mrs De Silva Wijeyeratne wrote to Centrelink on 22 March 2017, 4 April 2017, 16 October 2017 and 18 January 2018 outlining the extensive nature of her disability and citing numerous medical reports from various experts, both in association with her WorkCover claim and private consultation. Whilst there is no reason to question the veracity of this information, it cannot be relied upon in making this decision unless the medical reports cited were also provided.
Bilateral knee pain, lower back pain, bilateral plantar fasciitis, chronic pain
Dr Chris Haw, orthopaedic surgeon, in a medico-legal report of 27 March 2006 concluded:
This patient has had a good result from knee replacement surgery for advanced medial compartment arthritis in the left knee but is experiencing ongoing problems from the lower back and requires a further facet joint injection. She relates these problems to the nature of the work she was involved in which certainly was very heavy for a lady for her build and stature.
Dr Symon McCallum, pain physician and specialist anaesthetist, in a medical report of 12 May 2017 noted:
She is a 57-year-old lady who in 1991 was doing a heavy job as a machine operator and dye setter. She did lots of standing. In 1991 she had bilateral knee pain. This got worse on the left side in 1998 and she had surgery. She tells me she has got chronic lower back pain….
She walks with a stick and has a decreased tolerance to about 500m due to the left knee pain. Sitting can increase the back pain up to 30 minutes. It is very painful. She finds it very difficult to stand in the kitchen.
She had cramps at night and these can be very sharp. Her veins can hurt. She’s also got plantar fasciitis.
She is constipated. She has got a pain around the back of her knee. Her right knee can feel weak and sometimes her left can.
…
She has had two operations to the right knee and 5 to the left
She had varicose vein surgery, hysterectomy, breast surgery and ovarian surgery.
…
On examination, she has got crepitations in her knee. She finds it difficult to mobilise. She was wearing knee braces bilaterally. She has got pain to palpitation mainly anteriorly around the knee and with palpitation to the patella.
…
She has got poor level of function. She is going to be deconditioned.
She has got chronic bilateral knee pain. I believe this will be due to the degenerative changes and possibly some of it will be postsurgical in origin. She has probably undergone central sensitisation.
Dr Aarathi Vaska, pain and rehabilitation physician, in a medical report of 31 August 2017 noted:
Shyama has a past medical history of chronic lower back pain which started in 2000 and got worse in 2008. Depression occurred also in this year. …She had an abdominal hysterectomy in 2008. In 2008, she had bilateral cruciate ligament repairs with significant problems with her knees. At that time, the left knee was worse than the right and she had five operations on the left knee and one on the right.
…
Over the last year, her right knee has deteriorated to the point where she is walking independently with a single point stick for only 5 to 10 minutes. She is wearing knee braces on the right and left knees. She has had no falls in the last 12 months. She requires assistance with lower limb dressing from her husband and shares the domestic tasks with her husband. Her husband takes her shopping but she could only walk for five minutes at a time.
Sleep function is disturbed with preserved initiation but waking several times in the night with pain in her back and her knees.
…
She has multiple sites of pain. The main problem at present is right greater than left knee pain. There is a severe aching pain of the knee at 5/10. It is worse on walking later in the day and at night. She has been using a single point stick since 2002. Initially, the left knee was painful but she has continued to use a single point stick in the right hand, which is also leading to the right shoulder problem as well as hand numbness. The pain can be up to 8/10 and there are significant amounts of stiffness and swelling in the right knee and left knee at times and she uses a brace. Otherwise she does not feel confident. She does not describe any mechanical locking or giving way but has had cruciate ligament surgery five years ago. The right knee pain is significantly affecting the rest of her gait pattern. Her significant pain from her lower back and stiffness as well as constant pain over the lower back into the bottom and the hips is 5/10. There are somatic pain features that are currently sharp at times. She uses heat packs and Panadol osteo. The right shoulder pain started in 2015 and is exacerbated by putting weight through her right hand onto the single point stick. There is widespread pain also. She has descriptions of burning pain all over, headaches but at present the right knee pain is the main issue.
On examination, Shyama has moderate to severe osteoarthritis of the right knee. The knee is starting to go into varus deformity. She is wearing a brace. The left knee also has some degree of osteoarthritis. On the right the quadriceps is significantly wasted and the right hip abductors are wasted. There is significant pain over the patella and over the joint line in the right greater than the left knee.

Dr Sreelatha Shyam, General Practitioner, in a medical certificate dated 18 August 2017 stated that Mrs De Silva Wijeyeratne has been his patient since 2000 and noted:
Chronic pain for both knees, previous knee injuries and arthroscopy onset 1995 and the condition is permanent.
Symptoms are described as pain on both knees and swelling of knees, walking with assistance of a one point stick, limited mobility, unable to bend both knees, unable to go stairs.
The prognosis of the symptoms are permanent, multiple surgeries and pain management clinic, pain physician, physiotherapy and psychologist.
Assessing her ability for assistance back into the workforce or study, she would be impacted by her chronic pain, limited mobility, mobility with one point stick, risk of falls, depressed mood due to chronic pain and unable to tolerate many medicines.
Dr Eduardo Aranda, chronic disease management practitioner, recorded in his progress notes dated 16 October 2017:
Mrs De Silva is unable to walk around the shopping centre or supermarket without assistance, she always needs to go [with] husband and niece. She is also unable to use public transport because of her pain on her lower limbs. I believe she could not move independently around a workplace training facility, even if she uses it.
At examination she was using walking stick and it was very difficult for her to go to the couch to be examined, there were tenderness almost everywhere in both knees with poor power with resisted flexion and extension. Knee reflexed were reduced/absent.
Assessment is severe functional impairment of lower limbs with secondary depression/anxiety.
Dr Aranda further noted in a letter dated 30 April 2018:
She has a constellation of work-related medical conditions.
The main conditions are:
·fibromyalgia syndrome
·chronic lower back pain due to disk herniation coming from 1995
·generalised osteoarthritis
·bilateral knee repair of cruciate ligaments (the left knee has had 4 and in the right knee she has had 1) causing bilateral knee osteoarthritis
·right rotator cuff tendinitis
·bilateral chronic venous insufficiency
·bilateral plaintiff fasciitis
As a result of all the above conditions, she has developed bilateral chronic neuropathic lower limb pain syndrome.
In my opinion, even if she was to have a total knee replacement, it will not guarantee full recovery because of her several co-morbidities and the functional impairment of her lower limbs is extreme, a person is unable to mobilise independently and she will be at unable to stand prolonged sitting and standing periods.
The Respondent accepted that Mrs De Silva Wijeyeratne’s bilateral knee pain and spinal disorder were fully diagnosed, treated and stabilised given the extensive medical history in respect to her back and knee pain. However, the Respondent contended that there was insufficient corroborating medical evidence of Mrs De Silva Wijeyeratne’s functional impairment during the qualifying period to assign a rating in respect of her bilateral knee and back osteoarthritis. The Respondent argued that the level of functional impairment reported by the Applicant at the JCA during the qualifying period supports at most a five-point rating under table 3 and Table 4 - spinal function (table 4).
The Respondent contended that Mrs De Silva Wijeyeratne’s chronic pain disorder was not diagnosed until after the qualifying period and therefore could not be considered fully treated and stabilised. Alternatively, the Respondent contended that any functional impact from this condition should be assessed under table 3, and therefore in accordance with the sections 10(5) and (6) of the Impairment Tables cannot be counted because it would mean assessing the same impairment twice.
The Respondent contended that there was no corroborating medical evidence that Mrs De Silva Wijeyeratne’s plantar fasciitis was causing any functional impairment during the qualifying period.
Mrs De Silva Wijeyeratne contended at the hearing that at the time of the DSP application:
·     she couldn’t walk around the shopping centre or supermarket without assistance. She and her husband do the shopping, she has been using a walking aid for many years – either a walking stick or arm crutches;
·     she could walk for 30 minutes but it was a struggle and she was in pain. This has gotten worse because of cramps and her varicose veins;
·     she has difficulty using stairs. She has to take them one at a time and utilise the rail:
·     she needed assistance to stand up from a sitting position, needed to lean on a table or her stick, and she can’t stand for any length of time as she gets cramps in her calves;
·     she could not perform any overhead activities;
·     she was not utilising public transport during the qualifying period; and
·     she has had several falls and is now fearful of falling in public, so is rarely walks outside of her home.
Mrs De Silva Wijeyeratne also indicated that she could self-manage her care but relied upon her niece, who was living with her during the qualifying period. Nowadays she relies upon her husband, who is no longer working, to assist with household activities and chores. She can’t stand for long periods of time as she gets cramps in her legs, and she has had several falls. While she can shower herself she needs assistance from her husband to put on her shoes and compression stockings. Coming to the Tribunal for this hearing she had been unable to put on the compression stockings as the time involved is too great, and her daughter-in-law had driven her into the hearing. She relied upon others to assist her in getting to numerous appointments and indeed her doctor now made house calls as she was unable to attend their rooms. She spends most of her days at home, has minimal social contact outside the family, and her relationship with her husband has been strained by her situation. This has led him to transfer the title of their home into her son’s name, and this is causing additional stress as she is fearful that she could be removed from her own home.
In assessing the functional impact of these conditions, the Tribunal considered whether a severe level of impairment could be found under table 3.
There is a severe functional impact on activities using lower limbs.
(1)       The person:
(a)       is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b)       requires assistance to use public transport.
(2)       This impairment rating level includes a person who requires assistance to:
(a)       move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b)       move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
Mrs De Silva Wijeyeratne’s representative told the Tribunal:
The doctor is a person who has sort of assessed her impairment, and she has been seen by over 20 to 25 doctors, medical specialists, orthopaedic surgeons, psychiatrists. Right from the start she is seen by all the competent doctors and we expect Centrelink authorities to take those into account and make their own judgement and as what I say she is not a competent person or sufficiently educated to do that the judgement herself. But she relied on the doctors and Commonwealth to sort of assessor conditions, and if you see the amount of tablet that she’s taking it is – I has not seen a person taking so many different types of tablets……
I have rarely seen a person with so many difficulties and disabilities and to say that she had 0% impairment is beyond me. How can - she has been assessed as seriously injured under the WorkCover act, though this is not WorkCover and she was awarded a common-law payment some years back because she was seriously - it was accepted she was seriously injured. If you’re seriously injured 10 years back, your honour, she’s not going to be without an injury now.
If she had depression then and if the doctors now says that she has depression it is a continuing condition. It is not something that came up after 10 week period or 13 week period after lodging a claim. She’s been having that - she had to have six knee operations. Now her knees are going to replace. I do not know, I cannot understand how she can work when both knees she needs to go for knee replacement next and she has conditions depression, orthopaedic conditions. She is so disabled and she’s I said that at the last meeting she is suicidal and if someone says that she is not psychologically impaired it is not correct. So as far as I know she’s very seriously injured and has more than 20% impairments points. That’s what the doctor said in January 18 just last month. [sic]
The Respondent contended at the hearing that Mrs De Silva Wijeyeratne’s bilateral knee condition could no longer be considered fully treated and stabilised, as she had a fall in early 2017 which had resulted in deterioration, leading to a specialist opinion that she now required a right knee replacement. She had not obtained an orthopaedic surgeon’s opinion until 2017, outside the qualifying period. The Respondent contended that even if the knee and spinal conditions were considered permanent, corroborating material does not support impairment under tables 3 or 4 during the qualifying period. The best evidence was that taken by the JCA, which indicated that Mrs De Silva Wijeyeratne could stand and sit for up to 30 minutes, sometimes walk for up to an hour if feeling well, and had been travelling for up to an hour on public transport to see her doctor in North Melbourne.
There does appear to be some degree of inconsistency in the Respondent’s argument. The Respondent requires Mrs De Silva Wijeyeratne to produce corroborating medical evidence for her functional impairment. However, the Respondent is happy to rely upon the interpretation of the information provided to the JCA reviewer by a registered psychologist, with a later documentary review by an exercise physiologist quantifying the functional impact. Further, the Respondent relies upon a recent fall to exclude her existing bilateral knee condition and associated spinal complaint, arguing that current functional impairment cannot be assessed as future surgery may be required, ignoring the existing impairment. The reports of Dr Shyam and Dr Aranda provided to the hearing were outside the qualifying period, however both doctors have been treating Mrs De Silva Wijeyeratne for many years. Both have opined that her condition is deteriorating, and is and was at the time of qualification having a significant impact upon her mobility, utilisation of stairs, utilisation of public transport and self-care. Therefore, this evidence has been taken as medical corroboration of her functional impairment. There was no evidence before the Tribunal that would indicate any medical intervention would return Mrs De Silva Wijeyeratne to her pre-injury capacity, rather any additional medical intervention was to provide pain relief.
The evidence before the Tribunal would indicate that Mrs De Silva Wijeyeratne has a moderate functional impact on activities using the lower limbs. A severe functional impact was not able to be sustained on the evidence, as Mrs De Silva Wijeyeratne was still able to stand from a sitting position without assistance, as observed during the hearing. Therefore, 10 points are assigned under table 3.
Additionally, an assessment of Mrs De Silva Wijeyeratne’s lower back pain and chronic pain was reviewed under table 4. It was noted that she was unable to do any activities overhead and was not able to sit or drive in a car for at least 30 minutes. Therefore, 10 points are assigned under table 4.
Psychological condition
Ms Fiona Batchelor, consulting health psychologist, in a medico-legal report of 4 January 2011, which was provided in support of ongoing treatment for the Applicant, wrote:
Shayma [sic] advised me that she has had five operations in total – four on the left knee including a left knee reconstruction and one operation on her right knee. She had become depressed due to the difficulty coping with ongoing pain, having to cope with surgery, her anger at the perceived injustice regarding how she was treated at work, the impact on her health and the termination of her employment. She told me that she consulted a psychiatrist whom she had seen for six years. She had taken two overdoses when feeling particularly low in relation to perceived humiliation and loss of dignity she felt when visiting relatives in Sri Lanka and using a walking stick. She felt this aged her, demonstrated her husband had “lost out” and she would be perceived as a liability and a burden. Her case settled in July 2008 and she was granted a serious injury certificate but going through it all and having to “prove her case” impacted on her mood.
Shayma was referred to the Royal Melbourne Hospital pain management programme which she completed in December 2008. She found this helpful in showing her ways to move to maximise mobility, minimise pain and do some household tasks. Physio and Hydro had been ceased by the claims agent by then. At that time she was on multiple medications including Mobic - an anti-inflammatory drug, Panadeine and panadeine forte for pain, Antenex for blood pressure, Endep for pain and depression, Efexor for depression, Xanax for panic attacks, and Stilnox for sleep. She was experienced difficulty coping with side effects from the medication, had gained weight, was not functioning well, she could not come to terms of the changes to her life since her injuries and her mood was low….
Culturally she struggled with the loss of face and perceived humiliation when visiting relatives and felt a burden to a family.
Dr McCallum further wrote in his medical report of 12 May 2017:
Mental health history - she has a history of depression. She last saw her psychiatrist in 2009. She is currently seeing Fiona Batchelor.
Impression - Shyama has got major depression with panic anxieties and has been diagnosed with adjustment disorder with mixed anxiety and depression.
Psychologist Sharryn Lyndall-Smith reviewed Shayma with her husband and referred her to the CAT Team for a follow-up.
Dr McCallum also wrote that he thought she needed to see a psychiatrist.
In a screening report of 26 May 2017, Dr Vijay Danivas of the North West Area Mental Health Service noted:
Referred by psychologist from pain clinic through triage for elevation of mental health in the context of Shyama expressing suicidal ideation during the pain specialist consultation…history of multiple medical comorbidities.
…
Informs of having low mood, decreased interest in activities and decreased energy in the last almost 8 years which has increased over the last eight months. Associated with suicidal ideas but no clear plans. Denies of any suicidal plans of intent currently. Informs of husband, son and grandchild being protective factors. Informs that this is associated with memory disturbance and pain symptoms. However it appears more of difficulty to pay attention then problem with recall.
Informs of incidents around which the symptoms triggered and perpetuated. Has had a workplace injury in 2000 and has been seeking help from knee pain since then. Has underwent multiple surgeries for her the related problems and has been on physiotherapy since then. Reports of ongoing pain with knee injury and disability arising out of pain -inability to do household chores which involves walking around or standing and pain being one of the main reason for impaired sleep.
Feeling invalidated when people question about the severity and doesn’t acknowledge the disability with same. First such incident was during her visit to Sri Lanka in 2006, family questions severity, “for them I look like a drama, in other asked what happened to you at this age, look at me..”. Has been feeling rejected and invalidated by such responses by most people in extended family and friends and in system as well. Reports of being questioned by the caseworker at Centrelink about her inability to work and informs that “I feel like a burden…I don’t want to feel the same…” Expectation from the system is that she is supported, medication be given and surgeries done so that she could walk without pain or any such supports.
Dr Shyam further stated in the medical certificate of 18 August 2017 that Mrs De Silva Wijeyeratne is suffering from major depression, which he described as permanent and results in depressed mood, poor tolerance to pain, lack of energy, very sensitive. She was receiving psychiatric care and psychological counselling and has had a failure of many antidepressants because of the side-effects from the medication.
Dr Katherine McQuillan, psychiatrist, in a medical report of 10 August 2017 noted:
Shayma reports a persistently low mood over several years, first commencing in 1999. In the last 2 to 3 years this has worsened and is characterised by low mood, irritability, hopelessness and anhedonia. She does enjoy seeing her nine-month-old granddaughter but otherwise has very little social contact. She has frequent suicidal ideation but no longer intention, with family as a significant protective factor.
Sleep can be difficult to initiate and is fragment, primarily due to pain/position. Appetite is variable with overeating when she’s angry - this then destabilises her BSL control.
There has been previous suicidal intention (2006-2009) and several antidepressants have been trialled, including venlafaxine, duloxetine and escitalopram. Duloxetine ? dose had been taken for many years and was reasonably effective and tolerable.
…
She has had regular psychological therapy over the years, in particular finding her treatment with Fiona Batchelor very helpful. Currently, it appears that this is no longer covered by her insurance claim and she cannot afford to see her regularly.
Prior to a pain condition, Shayma denied a history of mood disorder.
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Premorbidly, she described herself as happy, friendly, social and hard-working. She enjoyed engaging with others and facing challenges at work, although she did feel some victimisation…
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Following today’s assessment I believe that Shayma is suffering from a major depressive disorder. This has likely arisen in the context of chronic pain (and other health conditions).
The Respondent contended that there was insufficient evidence to conclude that Mrs De Silva Wijeyeratne’s mental health condition had been fully treated and stabilised during the qualifying period, and that it would appear that she had not had regular psychological therapy prior to the qualifying period. Similarly, she had not engaged with the psychiatrist for an extended period of time prior to the qualification period, and Dr Danivas had recommended assessment by a psychiatrist. The Respondent contended that Dr Aranda is clearly advocating for Mrs De Silva Wijeyeratne and therefore his opinion should be given little weight, particularly in circumstances where there is evidence of treatment.
At the hearing, Table 5 – Mental Health Function (table 5) was explored in respect of the impact of Mrs De Silva Wijeyeratne’s mental health conditions, with a focus on whether she has a possible severe impairment.
There is a severe functional impact on activities involving mental health function.
(1)       The person has severe difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)       social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)       interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)       concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)       behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)        work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

Mrs De Silva Wijeyeratne contended at the hearing that at the time of the DSP application:
·she needed assistance with self-care and had relied upon her husband, niece and friend to support her;
·she did not participate in many social activities and did not travel alone anywhere;
·she was having difficulty with interpersonal relationships, her relationship with her husband was strained, and she felt isolated from her community as she believed she was being judged for her disability;
·she found it difficult to concentrate and complete tasks;
·her decision-making was affected because she gets nervous and thinks she is being judged; and
·she believes she has no capacity to attend work or training activities, and had attempted to do volunteer work but had to cease this after a short period of time.
Mrs De Silva Wijeyeratne’s representative took exception to the contentions of the Respondent and argued that her major depressive disorder had been diagnosed by a psychiatrist in 2007, and that just because she didn’t have the report at the time of the hearing doesn’t mean she wasn’t suffering from the condition. Indeed, she had a major injury in 2009 and was obviously suffering from a bilateral knee condition, but the Respondent did not accept this either. The Applicant’s representative argued that there were many reports showing that her condition had been ongoing for 17 years, and that a layman at Centrelink had only looked at her for five minutes or so and had not considered all the medical evidence or assessed her serious suicidal condition. The representative argued that Mrs De Silva Wijeyeratne has many conditions and is taking a lot of medication, and that the stress and strain of this process was impacting greatly upon her mental health.
The Respondent contended that Ms Fiona Batchelor is not a clinical psychologist and therefore her evidence could not be considered as required under table 5. Additionally, there was no evidence that she had been seeking psychological counselling under Medicare, and it was the Respondent’s contention that Mrs De Silva Wijeyeratne only met the criteria for a mild functional impairment under table 5. The Respondent also stated that the evidence given at the hearing was that her self-care and daily living were more impacted by her knee condition than her depression, and that she was socially withdrawn as a result of cultural issues and not her mental health conditions.
The evidence before the Tribunal would indicate that Mrs De Silva Wijeyeratne has had extensive treatment for her major depressive disorder, having been diagnosed by a properly qualified medical practitioner in 2007. Evidence was also produced that she had been receiving support on and off over the years from Ms Batchelor, and whilst Ms Batchelor is not a clinical psychologist her support did indicate that the condition was fully treated and stabilised. Further, there was no evidence to suggest that any improvement in Mrs De Silva Wijeyeratne’s major depressive disorder and anxiety would be achieved from seeing a psychiatrist or clinical psychologist. The evidence before the Tribunal indicated a mild functional impact on activities involving mental health function and is assigned five points under table 5. Mrs De Silva Wijeyeratne was having difficulty with most things, but not to the degree outlined for a moderate or severe functional impairment.
Diabetes, fatty liver, and asthma
Dr McCallum noted in the report of 12 May 2017 Mrs De Silva Wijeyeratne’s past medical history of:
High cholesterol, fatty liver, gastro-oesophageal reflux disease, irritable bowel syndrome, benign positional vertigo, mild asthma, fibromyalgia and non-insulin-dependent diabetes.
Current medication was noted as aspirin, Colofac, Crestor, Diabex, lberogast and Lexapro. She stopped this two days ago, lignocaine spray, paracetamol and ibuprofen or Panadol osteo tds, Nexium, inhalers, Tradjenta, Voltaren gel.
The Respondent contended that these conditions were either not causing any functional impact on Mrs De Silva Wijeyeratne during the qualifying period, or all were well-managed by medication and as such nil points should be awarded to these conditions.
Mrs De Silva Wijeyeratne and her representative argued that her numerous medical conditions were causing distress and were impacting her ability to function, as she was heavily reliant upon numerous medications and her life was constrained by all of her conditions.
The evidence before the Tribunal was primarily concerned with Mrs De Silva Wijeyeratne’s bilateral knee condition and depression, as these were having the greatest impact upon her functionality. Whilst it was evident that Mrs De Silva Wijeyeratne is suffering from numerous complex medical issues, the medical evidence presented and an assessment of the functional impact of these numerous other medical conditions indicated they were not impacting her functionality greatly. Therefore, nil points were awarded to these conditions.
DOES MRS DE SILVA WIJEYERATNE HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP Mrs De Silva Wijeyeratne must not only satisfy the requirement that she has an impairment with a rating of 20 points or more under the Impairment Tables, but she must also demonstrate that she has a continuing inability to work. Mrs De Silva Wijeyeratne would be considered to have a continuing inability to work if she has actively participated in a program of support within the meaning of section 94(3C) of the Act prior to her claim for DSP, and if her impairment is of itself sufficient to prevent her from doing any work independently of a program of support. The Tribunal must strictly enforce the program of support requirement, finding that no power exists to dispense with its operation. It is irrelevant whether an Applicant was aware of the requirement or not.
Mrs De Silva Wijeyeratne had not completed a program of support and therefore does not satisfy section 94(3C) of the Act.
Mrs De Silva Wijeyeratne in her letter of 18 January 2018 stated:
“I have participated in the employment programs since 2010 but after 18 months I was discarded or abandoned and even subsequent attempts to join employer programs did not get off the ground. The job plan dated 25 September 2017 did not get off the ground and yet Centrelink Review Officer on 4 January 2017 determined that there is no current medical evidence to indicate any functional impacts of the knees and as medical evidence is not available a zero rating was applied my GP Dr Aranda stated on the job plan that Shyama suffers from chronic neuropathic syndrome, mixed severe anxiety-depression and fibromyalgia syndrome and all my conditions have been fully investigated and I will not get better and also commented, “I believe strongly she should be on the disability support pension.”
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I was interviewed by job network provider appointed by Centrelink and the job provider noted my medical conditions and medical reports and medical certificates and it was my understanding that he too was not convinced that I have any capacity for work and I am waiting further information from him in this regard.
In the JCA of 4 January 2017 it was noted that referral to ESS was recommended but not actioned as client is not in receipt of any government benefits currently.
There seems to be no uniform preference in the decisions of the Tribunal on whether the conclusions in a JCA report or a medical report should be preferred for the purpose of assessing continuing inability to work. I do not think an absolute preference should be expressed for either report, rather, the preference should be made on a case by case basis, taking into account the usual matters relevant to assessing the probative value of a report. Such matters include the field of expertise and qualifications of the person who wrote the report (or who made assessments forming part of the report), the duration and frequency of the report, the writer’s relationship with the person who is the subject of the report, and the reliability and depth of the analysis within the report.
Whilst it does appear Mrs De Silva Wijeyeratne has attempted to comply with her program of support requirements, there was no evidence to suggest she had completed a program of support such that she meets the requirements of 94(3C) of the Act.
CONCLUSION
The Tribunal has awarded 10 points to Mrs De Silva Wijeyeratne under table 3, as she has significant but not severe issues with her knees. The Tribunal has also awarded 10 points under table 4, as she has significant but not severe issues with her lower back and chronic pain, which is incidental to her bilateral knee condition. Additionally, the Tribunal has awarded five points under table 5, as Mrs De Silva Wijeyeratne has experienced a mild functional impact from her mental health condition.
At the date of her application, Mrs De Silva Wijeyeratne was not qualified to receive the DSP. Her impairments attracted a total of 25 impairment points across three impairment tables, but she had not completed a program of support as required by the Act.
Mrs De Silva Wijeyeratne had also been assessed as having a continuing ability to work and she presented no contrary evidence to refute this finding.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Member Anna Burke

.........[sgd]............................................................
Associate
Dated: 24 July 2018

Date(s) of hearing: 2 February and 9 May 2018

Advocate for the Applicant: Mr Ranjith Jayasuriya

Advocate for the Respondent: Mr Pietro Nacion

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 2443

24 July 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	2 February and 9 May 2018
Advocate for the Applicant:	Mr Ranjith Jayasuriya
Advocate for the Respondent:	Mr Pietro Nacion
Solicitors for the Respondent:	Sparke Helmore Lawyers