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

Debs and Secretary, Department of Social Services (Social services second review) [2021] AATA 42 (25 January 2021)
Division:GENERAL DIVISION
File Number(s): 2020/2092
Re:Ms Dolores Debs
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Ms A E Burke AO, Member
Date: 25 January 2021
Place:Melbourne

The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies sections 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
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Ms A E Burke AO, Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO, Member
25 January 2021
INTRODUCTION

Ms Debs (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 a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).
Ms Debs lodged a claim for DSP on 23 October 2018. On 19 February 2019, Centrelink rejected Ms Debs’ claim for DSP, as she did not have an impairment rating of 20 points. On 13 February 2020, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Ms Debs sought review of the decision by the ARO at the Social Services and Child Support Division of this Tribunal (Tier 1), which affirmed the decision on 24 March 2020. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 13 November 2020. Ms Debs was self-represented and Ms Cailin Farrell, Solicitor at Sparke Helmore, appeared for the Respondent. The Applicant gave evidence under affirmation.
THE ISSUES IN CONTENTION
The issue in contention is whether Ms Debs was qualified for a DSP from the date of her claim, 23 October 2018 to a date 13 weeks thereafter, that being to 22 January 2019 (the qualifying period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Ms Debs had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which result in impairments attracting 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)a continuing inability to work.
BACKGROUND
Ms Debs is currently 63 years of age, she arrived in Australia from Malta at the age of 5, completed year 8 education and has a functional level of literacy and numeracy. After leaving school, she undertook factory work, she met and married her husband 40 years ago and they had five children. Ms Debs currently lives with her adult son and daughter, who both work full time. Her daughter is a nurse and provides her mother with day-to-day care. Ms Debs’ husband is serving a life sentence for murder in New South Wales, and one of her sons died in 2003 (aged 19) from diabetes complications.
In 2014, Ms Debs underwent gastric bypass surgery which resulted in serious complications, leaving her unable to return to her former employment as a meat manager at Coles, and relying on income from an income protection policy until 2017. Ms Debs had worked for Coles for 17 years. Her employment was terminated in 2017, when Coles determined that there was no reasonable prospect of Ms Debs resuming her pre-injury/illness duties in the near future.
On 23 October 2018, Ms Debs made an application for DSP, citing her medical conditions as lifting capabilities of 2 kg, right sided weakness, balance issues, osteoporosis, brain aneurism, ulnar nerve damage in her right hand and hepatis (immune disorder).
On 15 January 2019, a face to face job capacity assessment (JCA) was undertaken by Centrelink. The JCA assessed Ms Debs’ impairments as attracting 5 points under table 2 for her shoulder and upper arm disorder and nil points for her other conditions as they were not considered fully treated and stabilised. The JCA determined Ms Debs had a baseline work capacity of 8-14 hours a week due to the frequency of her symptoms which impact her concentration, endurance, and ability to sustain physical activities - such as sitting, standing, bending and lifting. The JCA reported that, with disability specific intervention, it was likely Ms Debs could build her work capacity to 15-22 hours per week.
On 2 July 2019, a further face to face JCA was undertaken by Centrelink in respect of Ms Debs’ appeal against the rejection of her DSP claim. The JCA assessed Ms Debs as attracting 10 impairment points comprising 5 points under table 2 for her right shoulder osteoarthritis, 5 points under table 3 for her left knee osteoarthritis and nil points for her liver disorder, as there was no objective evidence as to the degree of her impairment, for an accurate rating to be applied to the tables. The JCA determined Ms Debs had a baseline work capacity of 8-14 hours a week and with intervention, a work capacity of 15-22 hours per week.
On 13 February 2020, on internal review, a departmental Authorised Review Officer (ARO) affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of 10 points, stating the following:
I have found your conditions of Left Knee Osteoarthritis; a Shoulder and Upper Arm Disorder and Autoimmune Hepatitis are permanent and can be assigned ratings under the Impairment Tables.
In view of the information you provided, the assessors considered your Left Knee Osteoarthritis condition to be permanent and found it had mild functional impact on Lower Limb Function and assigned 5 points under Impairment Table 2.
In view of the information you provided, the assessors considered your Shoulder and Upper Arm Disorder permanent and found it had mild functional impact on Upper Limb Function and assigned 5 points under Impairment Table 2.
In view of the information you provided, the assessors also considered your condition of Autoimmune Hepatitis to be permanent and found on the available evidence it had minimal functional impact on Digestive and Reproductive Function and therefore you were assigned 0 points under Impairment Table 10.
I have considered how many points should be assigned under Table 10 for this condition and find a rating of 0 points is appropriate. This rating is applied when there is a minimal functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition. That is, the person is not usually interrupted at work or other activity by symptoms or personal care needs associated with a digestive or reproductive system condition.
Osteoporosis
The medical evidence confirms a diagnosis of Osteopenia with an onset indicated to be in November 2016. However, as there is insufficient medical evidence detailing treatment, stability and functional impacts of the condition, the condition is not considered fully treated and stabilised during the ‘relevant period’. As such, I am unable to consider an impairment rating.
Depression
The medical evidence refers to the presence of Depression. With regard to a psychological disorder, Table 5 of the Impairment Tables Determination 2011 states, in order for an impairment rating to be assigned to a mental health condition, the condition must be fully diagnosed by a psychiatrist or clinical psychologist. As there is no evidence to support a diagnosis of Depression by either a psychiatrist or clinical psychologist, I have found this condition cannot be accepted as being fully diagnosed within the meaning of social security law. There is also insufficient medical evidence to confirm optimal treatment has been undertaken for the treatment of this type of condition. As such, I am unable to consider an impairment rating.
On 24 March 2020, the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) affirmed the decision of the ARO to reject Ms Debs’ DSP claim. The AAT Tier 1 awarded Ms Debs an impairment rating of 20 points across three tables, finding that her condition was not considered severe and as she had not undertaken a program of support, she was not eligible for the DSP. The Member stated:
The authorised review officer has accepted the conditions of left knee osteoarthritis, shoulder and upper arm disorder (which is presumably the injury to the right shoulder), and autoimmune hepatitis as being permanent conditions, and this is consistent with the assessment by the tribunal. The fracture to the left finger and the cataracts, which have been diagnosed and treated, have stabilised without any ongoing functional impairment. There was an incidental finding of a cerebral vascular abnormality which is asymptomatic. The condition is managed with ongoing surveillance. The view of the tribunal is that the past injury to the right hand is a permanent condition, but it could be argued that there is no recent corroborating medical evidence to confirm the current level of functional impairment specifically related to this condition. A condition of depression has been described but the information available does not allow the tribunal to consider whether this condition was fully diagnosed, treated and stabilised at the time of application. The later correspondence from Dr Hogan, psychiatrist, which is dated 15 March 2020, describes the extraordinary difficulties Mrs Debs has faced in her life. Dr Hogan diagnoses chronic major depressive disorder and recommends that further treatment be undertaken.
The tribunal finds the condition of autoimmune hepatitis to be a condition which has been fully diagnosed, treated and stabilised. Treatment requires ongoing immuno suppressants, and as a consequence of the condition and the required treatment for the condition Mrs Debs experiences constant tiredness and frequent fatigue. She has difficulty in undertaking day-to-day household activities and is unable to undertake more arduous tasks such as changing the sheets on the bed, and when undertaking tasks, she has to proceed slowly and take frequent rests. An impairment rating of 10 points has been assigned under Table 1-Functions requiring Physical Exertion and Stamina.
The osteoarthritis affecting the right shoulder and the left knee are also conditions which are permanent, and which have been fully diagnosed, treated and stabilised. The past injury to the right hand is also assessed as being permanent. An impairment rating of 5 points under Table 2- Upper Limb Function has been assigned on the basis that there is mild impairment, and Mrs Debs has difficulty in lifting heavier objects, in reaching up or out and in handling very small objects. An impairment rating of 5 points has also been assigned under Table 3-Lower Limb Function as there is at least mild impairment of lower limb function specifically related to the osteoarthritis in the left knee and Mrs Debs is unable to stand for periods longer than 10 minutes, she is unable to climb stairs, and is reliant when walking on the use of a walking stick to maintain balance.
Although Mrs Debs's application has satisfied paragraph 94(1)(a), and (b) of the Act, the application has not satisfied paragraph 94(1)(c) and Mrs Debs has not fully satisfied the qualification requirements for eligibility for disability support pension.
Mrs Debs has a combined impairment rating of 20 points. As an impairment rating of 20 points or greater has been established, Mrs Debs's application satisfies paragraph 94(1)(b) of the Act.
On 7 April 2020, Ms Debs sought a review of the Tier 1 decision, by this division of the Tribunal (Tier 2), as she disagreed with the decision, stating:
I believe the decision is wrong as I meet the eligibility criteria of 20 points the decision was based on Centrelink meetings that are compulsory for me to attend with At Work Australia. If I don’t attend them, I will not receive any benefits at all, which will disadvantage me as I will have no income.
I feel the reason I have not received the disability pension is because I am currently receiving unemployment benefits and due to this I am forced to meet their eligibility requirements as Centrelink has stopped and refused to accept my doctor’s certificates that I was handing in to Centrelink which meant I didn’t have to look for work, now that they refuse to accept these I was put into At Work Australia. I have been with them since October 2019 and my consultant .. is unable to find me work because of my disabilities.
She is happy to be contacted on .. anytime to explain the difficulties in finding me work.
I request this decision be reviewed and let myself not to be disadvantaged by Centrelink’s unemployment eligibility criteria.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for 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;
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 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 “there must be corroborating evidence of the person’s impairment”.
Paragraph 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.
Paragraph 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.
For the purposes of paragraph 6(7) of the Impairment Tables, 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 issue to be determined in this review is whether, during the qualifying period, Ms Debs suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and if so, whether she had a continuing inability to work.
The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment and not to assess conditions.[1]
[1] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 s 5(2).
Paragraph 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.
Paragraph 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 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.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) sets out a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment.
The POS determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4)       This subsection is satisfied in relation to a person and a program of    support if:
(a)       the program of support was terminated before the end of the             relevant period; and
(b)       the program of support was terminated because the person   was unable, solely because of his or her impairment, to   improve his or her capacity to prepare for, find or maintain   work through continued participation in the program.
(5)      This subsection is satisfied in relation to a person and a program of          support if:
(a)       At the end of the relevant period, the person is participating   in the program of support; and
(b)       The person is prevented, solely because of his or her    impairment, from improving his or her capacity to prepare for,                    find or maintain work through continued participation in the               program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under s 37 of the Administrative Appeals Tribunal Act 1975, referred to as the “T documents”, additional medical reports and letter of termination from her former employer were lodged by Ms Debs.
DOES MS DEBS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT?
Section 94(1)(a) of the Act provides that to qualify for DSP, in the first instance, a person must suffer from an impairment.
The Respondent accepts that Ms Debs is suffering from autoimmune hepatitis, right shoulder condition, ulnar nerve neuropathy, osteoarthritis of the left knee, depression, osteoporosis, metacarpal fracture and cataracts. The Tribunal finds that Ms Debs was living with these impairments during the qualifying period and therefore 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 impairment rate is 20 points or more under the Impairment Tables.
DOES MS DEBS HAVE MEDICAL CONDITIONS THAT RESULT IN IMPAIRMENTS THAT CAN BE RATED 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES?
Critical illness myopathy and ongoing persisting weakness
On 31 December 2014, a Nursing Discharge summary sheet from Knox Private hospital documents Ms Debs’ complicated admission for a laparoscopic Roux-en-Y Gastric bypass surgery performed on 3 November 2014, which resulted in her being sedated and incubated in the ICU, where fevers and sepsis persisted. This resulted in Ms Debs having to undergo multi theatre investigations.
On 19 February 2015, Mr Dean Spilias, Surgeon, reviewed Ms Debs following her laparoscopic Roux-en-Y Gastric bypass, which was complicated by a leak at the entero-enterostomy. He opines:
I reviewed Dorothy today following her laparoscopy roux-en-Y gastric bypass which was complicated by a leak at the entero-enterostomy.
To summarise her course for your records, on the 3rd November she had a laparoscopic roux-en-Y gastric bypass which appeared Initially to have proceeded well, with intact leak test and Inspection of the anastomoses. Day one post operatively Dorothy appeared well but had an isolated tachycardia. In the absence of abdominal signs or signs of sepsis, attention was given to the thromboembolic prophylaxis, observation of the drain tubes and monitoring of haemoglobin and septic markers and a CT with oral contrast was performed. The CT demonstrated no leak but a decision was made to proceed with a re-look. This did in fact demonstrate a leak, not from the upper anastomosis but from the small bowel anastomosis. A laparotomy and washout was performed, the small bowel anastomosis was resected and refashioned and Dorothy appeared to be making a good recovery from this. Six days following this she became unwell and returned to theatre for laparotomy and washout, no leak was demonstrated and the abdominal cavity and the wounds were washed out with a provisional diagnosis of residual wound and intra-abdominal sepsis. She continued to have re-looks and washouts on a second or third daily basis and a peg tube was placed into the remnant stomach for decompression purposes and to allow future enteral feeding.
Dorothy required hemofiltration and inferior vena cava filter for deep vein thrombosis and on examination some right arm weakness was apparent, this has partly improved but a neurology opinion was sought in hospital.
On review today she is walking and living with her sister although she has some residual right upper limp weakness. Her weight today was 84 kg and I understand that there has been Improvement in her blood lipid profile and glucose profile. I understand she has had a nerve conduction study locally, however the results of this are not available yet.
Dorothy is on Vitamin D and a multi vitamin supplement. She is now on a normal diet and has had no reflux, so when I see her again in one month I will review whether she has any further need for a proton pump Inhibitor; this was continued post operatively to prevent stress ulcers, rather than to treat reflux, which should resolve with a gastric bypass.
On 10 July 2017, Dr Anthony Karantonis, general practitioner of Dandenong City medical clinic, provided a work capacity review to Ms Debs’ then employer Coles Springvale in which he opined:
Mrs Debs has an extensive and complex medical history that essentially has evolved post complications of gastric surgery for weight reduction. Severe life threatening complications results in an extensive intensive care stay of months with many times her not being expected to survive. Subsequent to many complications she has been left with neurological deficits and has also recently developed Autoimmune Hepatitis. This is unrelated to her surgery but involves her immune systems attacking her liver and she has needed to go onto significant immunosuppressive therapy under the liver specialist unit at Monash MC.
…….
Unfortunately her complications post treatment have been serious and life threatening and have resulted in ongoing disability, neurological sequelae and weakness.
The Autoimmune Hepatitis has also added another level of complexity to her treatment in that she also now needs ongoing likely lifelong immunosuppression to control this immune disease.
Her overall current condition is expected to remain approximately the same into the future.
Although there may be small gains, in my opinion these are unlikely to be of any significant nature.
On 10 June 2020, Dr Karantonis, prepared a medical report for this appeal. In the report, Dr Karantonis, advises Ms Debs has been a patient at the clinic for over 20 years and outlines Ms Debs’ extensive and complex medical history:
A summary of all her medical conditions and medications has been included below.
Current active problems:
Date     Condition -- Comment
2008    Arthroscopy of knee (Right)
2008    Knee Osteoarthritis
2014    Post op sepsis peritonitis open wound
2011    Fibula fracture
2013    ?OSAS
2013    COPD (Chronic Obstructive Pulmonary Disease)
2013    Glucose intolerance
2013    Hypercholesterolaemia
2013    Hypertension - Borderline
2014    Critical illness myopathy
2014    Depression
2014    Gastric bypass
2014    IVC filter inserted
2014    Laparotomy laparostomy
2014    Laparotomy small bowel resection wound debridement
2014    Tracheostomy
2014    Weakness (Right)
2014    laparostomy washout wound debridement
2014    wound washout debridement laparostomy washout partial closure
2014    wound washout theatre change dressing
2015    DVT
2016    Autoimmune Hepatitis
2016    Dysphagia esopahgeal Dsymotility
2016    Gastric ulcer
2016    Intraocular lens implant (Left)
2016    Knee Osteoarthritis (left)
2016    Metacarpal fracture (Left)
2016    Osteopaenia
2016    Ulnar nerve palsy (Right)
2018    Rotator Cuff Repåir
2018    Subacromial decompression (Right)
2018    Vitamin D deficiency
2019    Gastric anastomosis ulceration/inflamamtion gastroscopy
2019    Subdeltoid bursitis (Left)
2020    Osteoporosis - corticosteroid induced 2020 Trochanteric Bursitis (Right)
Past medical history:
Date     Condition -- Comment
1995    HYSTERECTOMY
2016    IVC filter removed
The details of significant medical conditions have been listed above.
The predominantly significant medical conditions present at the qualifying period, and listed below, are expected to be ongoing for more than two years.
7.        Dysphagia associated with oesophageal dysmotility; Condition diagnosed by gastrointestinal /Liver unit at Monash medical centre with ongoing difficulties in swallowing food. This is not related to her Roux En Y surgical procedure but an oesophageal motility disorder of its own accord. This also unlikely to change longer term and is possibly. Manageable with medication but not curable.
This condition is expected to remain constant over the next two years
Mrs Debs has been fully complaint with all recommended medical treatments. Each of her above medical conditions need ongoing treatment to assist in maintaining her health and quality of life.
The statement as to whether each condition is expected to change has been included within each subsection above to assist in clarification.
Other than a walking stick to assist with balance, no aids or assistive technology has been recommended.
Dr Karantonis report of 10 June 2020 described Ms Debs’ Critical illness myopathy and ongoing persisting weakness, advising:
This occurred post her six weeks in intensive care post gastric bypass surgery, there has been improvement but there are residual right sided weakness symptoms, no overt cerebral stroke has been elicited and the medical team has attributed her ongoing weakness due to critical illness myopathy. The degree of final recovery is unknown. Other than exercise to assist with muscle recovery there is no other active intervention to the best of my knowledge. This condition is expected to remain constant over the next two years.
Rout En Y gastric bypass surgery November 2014, for weight loss surgery complications post anastomotic leak, post peritoneal leak and ongoing difficulties with multiple. Surgeries washouts and intensive care admission for six weeks followed by ongoing hospitalisation and rehabilitation. This condition is expected to remain constant over the next two years.
Ms Debs advised the hearing that she had undergone gastric bypass surgery in 2014, which went horrible wrong leaving her with multiple complex health issues. Thus, she advised she has been left reliant on her daughter to provide her with daily care and unable to return to the job she loved. She advised the hearing:
When I came out of the coma, I had to learn how to walk, I was doing physio
I had income protection – I was earning $4000 a month – I had no need to go to Centrelink for help – I had a job to go- my argument is that I didn’t need to go Centrelink because I protected myself a long time ago with income protection
I wanted to go back to my job- my income protection finished at 60 – I did want to go back to work but I can’t go back as a manger – I can’t work for long periods of time – I am willing to go part time, I said this to my employer - they went back and forth with HR and came back and I said that was a high risk and that I am an accident waiting to happen and then they said they can’t help me
Ms Debs advised the hearing that she:
·cannot shower by herself, describing that she gets up each morning at 6:00 am before her daughter leaves for work so her daughter can help her shower; her daughter has placed a chair in the shower for her as she cannot stand for long and her balance is not great; her daughter has to wash her hair as she cannot;
·can’t do heavy housework such as vacuuming and mopping;
·can do the washing but does it by sitting in front of her front loader;
·can’t take the clothes out of the machine or hang them on the clothesline;
·can do dishes and load the dishwasher from a seated position;
·cannot prepare meals, her daughter does all the chopping of vegetables and preparation of the food, she just puts things in pots slowly;
·can water her garden, as she has a seat outside which she sits in to water the garden, but she can do nothing else around the garden;
·has difficulty dressing herself, her daughter must help her put on her bra, she can do buttons up but she avoids this and buys clothes without buttons;
·can’t utilise public transport, steps on the bus are too high and she fears she will fall;
·can’t lift or carry objects;
·can’t reach her arms up and down;
·can’t open a jar or drink bottle;
·can’t utilise a computer keyboard;
·has difficulty texting on her mobile phone;
·can utilise a pen, but it has taken her many years to achieve this after the complications of her surgery in 2014;
·can drive short distant and walk from her car into shopping centre, but parks as close as possible and only buys a few things, in and out of the shops in a short time but must always utilise her walking stick;
·does not do large shops, advising her daughter undertakes the large shop for the house;
·lives a very boring life, most days she gets up early so she can shower before her daughter goes to work, makes herself tea and toast and goes back to bed as it is the most comfortable place for her, she might sleep or watch TV, has a sandwich for lunch, might talk on the phone with family or friends, gets up to talk to her children when they get home from work, helps with dinner and goes back to bed;
·has been undertaking a computer course as recommended by her disability employment service, but she is struggling with completing the tasks, she sits up in bed surrounded by her pillows so she can support herself and she does not do a 2 hour session in one go she takes many hours to complete each task, as she gets tired and sore trying to complete the work;
·can’t sit or stand for long periods;
·utilises a walking stick to get around;
·would dearly love to return to work and had hoped to return to her job at Coles, which she loved, but her physical condition makes it impossible for her to work in any role;
The Tribunal noted that it is difficult to allocate an impairment rating in particularly complex matters such as Ms Debs’ as she has numerous medical issues resulting in multiple conditions, which can be associated with symptoms causing overlapping functional impairment and in this complex situation resultant from surgical complications. The Tribunal also noted that this was not assisted by the conflicting interpretations of the medical evidence by the various assessors.
The Tribunal noted that Dr Karantonis had not identified Ms Debs’ condition of Critical illness myopathy and ongoing persisting weakness until he submitted his report of 10 June 2020 for the proceedings before the Tribunal. The Tribunal considered this diagnosis best reflected the amalgam off conditions which had resulted from Ms Debs’ post-surgical complications.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs’ condition of Critical illness myopathy and ongoing persisting weakness was fully diagnosed, treated and stabilised during the qualifying period, relying upon the discharge report of the Northern hospital, Mr Spilias post-operative review and Dr Karantonis’ numerous reports.
The Tribunal considered that the functional impact of this condition was best assessed under both table 1 and table 2 of the Impairment Tables as the condition impacts both her right-sided weakness and exertion, as the condition presents in the same manner as a stroke.
Right shoulder condition
The records of Monash Health from 2015 revealed that Ms Debs has undergone rehabilitation at Monash Health for right sided weakness following surgery.
On 7 November 2018, 5 February 2019, 1 May 2019 and 29 July 2019, Dr Irene Lepustin, general practitioner, provided a medical certificate for Ms Debs in which she diagnosed chronic permanent severe right shoulder osteoarthritis presenting with symptoms of severe pain and swelling in her right shoulder. Dr Lepustin recorded Ms Debs’ treatment as she had been under the care of an orthopaedic surgeon and her treatment included medication, pain management, physiotherapy and an exercise regime.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Right shoulder rotator cuff repair and ongoing pain, advising:
Right shoulder rotator cuff repair and ongoing pain. Subacromial decompression and repair performed by Mr Jacobsen in 2018. Ongoing pain and limitation in range of movement continue. This condition is expected to remain constant over the next two years with possible decline in function and capacity.
Ms Debs advised that she woke from the coma after her bypass surgery to discover she had lost the use of her right side, particularly her hand and arm. After a great deal of rehab which involved learning to do everything again, she had regained some use of her right hand and arm but some weakness in her right side remained and she was unable to lift her arm above shoulder height.
The Respondent accepts that Ms Debs had a right shoulder condition which was fully diagnosed, treated and fully stabilised during the qualification period. The Respondent was satisfied that there was corroborating evidence, Ms Debs had undergone reasonable treatment for the condition, including surgery and review with an orthopaedic surgeon, and that any ongoing symptoms were to be managed conservatively with exercises and pain medication, which was unlikely to result in any significant functional improvement.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs’ right shoulder condition was fully diagnosed, treated and stabilised during the qualifying period, relying upon the report of Monash Health and Dr Karantonis’ numerous reports.
The Tribunal considered that the functional impact of this condition was best assessed under Table 2 Upper Limb Function of The Impairment Tables.
Ulnar nerve neuropathy
On 13 October 2015, Doug Anderson of Monash Imaging reported on an MRI scan of Ms Debs’ right elbow, he records his impression as: Mild ulna thickening with adjacent likely chronic pressure changes affecting the posteromedial soft tissues.
On 28 April 2016, Dr Victor Gordon, Consultant Neurologist, provided an updated report on his neurological care of Ms Debs:
Mrs Debs has been under my neurological care since 27 March 2015….. This is a lady who in 2014 had gastric bypass bariatric surgery complicated by sepsis and a prolonged period of unconsciousness in intensive care. She woke from that to find that she had right-sided weakness in both the upper and lower limb. As time goes by however it is becoming clear that the worst of her weakness is in the right upper limb particularly over the 4^th and 5^th digits. She also reports troublesome painful allodynia of the 4^th and 5^th digits.
EMG study performed on the 24^th July 2015 is reported to show findings of a severe right ulnar neuropathy with evidence of active denervation, distal to the branch to the flexor carpi ulnaris muscle.
I last saw her on 27 August 2015, at which time she continued to be aware of sensory and motor dysfunction in a right-hand. Her function was gradually however improving. She was able to sign her name whereas before she could not. However there was still substantial weakness in her right-hand precluding her from lifting anything too heavy.
MRI scan of the right elbow does show mild thickening of the ulnar nerve on the right with likely chronic pressure changes affecting the posterior medial soft tissue. An ultrasound of the nerve was uninformative.
From the neurological point of view when last I saw her she still had substantial deficit of right ulnar nerve function. I think she still was not going to be able to lift more than 1.5 kg, particularly with that hand.
The prognosis of the ulnar neuropathy at this stage unfortunately remains unclear. I think it moderately likely that it will continue to improve with time. My best guess is that she is about 50 to 75% likely to be able to return to useful work with that hand but the time course is unpredictable. It is likely that she will have some degree of permanent restriction. The EMG findings showed that there has been denervation of the muscle.
Dr Lepustin’s medical certificates for Ms Debs dated 7 November 2018, 5 February 2019, 1 May 2019 and 29 July 2019 diagnosed permanent nerve damage in right arm and hand/ post-operative complication presenting with symptoms of weakness, partial loss of sensation and movement in right hand and right arm. Dr Lepustin recorded Ms Debs’ treatment, as she had been under care of a neurologist and her treatment included medication, pain management, physiotherapy and an exercise regime.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Right Ulnar nerve neuropathy, advising:
Right Ulnar nerve neuropathy, this was discovered post ICU discharge, no clear cause has been noted but has been presumed to have occurred during this time. This has been monitored by neurologist Dr V Gordon. Prior to her surgery there is no documentation or reported Right Ulnar nerve pathology. Although recovery has partially occurred over the intervening period there are persisting right sided ulnar nerve distribution clinical symptoms and weakness. This is associated with right hand weakness and reduced function. This condition is expected to remain constant over the next two years
The Respondent accepts that Ms Debs’ nerve ulnar neuropathy was fully diagnosed, treated and fully stabilised during the qualification period. The Respondent was satisfied that there was corroborating evidence Ms Debs had undergone reasonable treatment for the condition and there was no evidence of any planned or continuing treatment other than “routine” reviews.

The Respondent contented that Ms Debs’ right shoulder condition and ulnar nerve neuropathy resulted in a functional impairment when performing activities requiring the use of her hands or arms and submitted the appropriate table to assess any resulting impairment was Table 2 – Upper Limb Function.
The Respondent noted that pursuant to the introduction of Table 2, self-reported symptoms alone are insufficient to support a functional impairment rating, and there must be corroborating evidence of any self-reported impairment. A mild impairment rating under Table 2 requires that Ms Debs had difficulty with most of the following:
(a)picking up heavier objects;
(b)handling very small objects;
(c)doing up buttons;
(d)reaching up or out to pick up objects.
The Respondent argued that the appropriate impairment rating under Table 2 is 5 points -as the evidence corroborates Ms Debs had difficulty picking up heavier objects, reaching up or out to pick up objects and handling very small objects. The Respondent contended that there was insufficient corroborating evidence to support a higher rating under Table 2, as the evidence indicated that Ms Debs was able to do up buttons, hold and use a pen and pick up a 1 litre carton full of liquid.
The Respondent noted that in accordance with Rule 10(5) of the Impairment Tables, where two or more conditions cause a common or combined impairment, a single rating should be assigned, in relation to that common or combined impairment, under a single Table. Accordingly, they contended that only one rating should be assigned under this Table for any functional impairment caused by these conditions.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs’ Ulnar nerve neuropathy was fully diagnosed, treated and stabilised during the qualifying period, relying upon the report of a consultant neurologist and Dr Karantonis numerous reports.
The Tribunal considered that the functional impact of this condition was best assessed under Table 2 Upper Limb Function of The Impairment Tables.
Osteoarthritis of left knee
On 29 March 2019, Mr Anthony Jacobson, orthopaedic surgeon, provided the following advice in respect of Ms Debs’ left knee condition, advising:
In my capacity as an orthopaedic surgeon I have seen Dorothy Debs regarding her left knee. Dorothy has a degenerative left knee condition which is currently being managed non-operatively. Image has shown a combination of pathologies (osteoarthritis and a degenerative meniscus tear) that will not clearly benefit her arthroscopic surgery and therefore current treatment is a combination of management and activity modification.
She experiences background knee pain that restricts deep bending and prolonged walking or standing. Currently her pain is manageable but aggravated by moderate to heavy activities. Being able to work seated and take rest breaks are advisable.
Dr Lepustin, medical certificates for Ms Debs dated 7 November 2018, 5 February 2019,
1 May 2019 and 29 July 2019 diagnosed severe left knee osteoarthritis presenting with symptoms of severe pain and swelling, resulting in Ms Debs’ inability to walk without assistance and an impaired gait. Dr Lepustin recorded Ms Debs’ treatment as she had been under care of an orthopaedic surgeon and her treatment included medication, pain management, physiotherapy and an exercise regime.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Osteoarthritis of the left knee, advising:
This has been treated conservatively, an orthopaedic review by Mr A. Jacobsen has been to delay any intervention as long as possible primarily due to her complex medical history and failing this to proceed to surgery possibly a knee replacement. At present Mrs Debs is trying to be as active as possible to maintain function but is limited due to pain. This condition is expected to become worse over the next two years.
Ms Debs advised the JCA on 30 January 2019 that:
she experiences intermittent pain and swelling. Often, if sedentary she experiences stiffness and her knee "locks up". She reported that because of intermittent pain and swelling she has difficulty with mobility and balance, as such relies on a single point stick to get around. She reported a maximum tolerance of 15 min walking when completing a grocery shop.
The Respondent accepts that Ms Debs suffered from osteoarthritis which was fully diagnosed, treated and fully stabilised during the qualification period. The Respondent contended that the appropriate Impairment Table to assess any resulting impairment from this condition was Table 3 – Lower Limb Function and the appropriate impairment rating under this Table was 5 points. The Respondent relied on the following evidence in support of this contention:
(a)A medical certificate dated 7 November 2018 which recorded that Ms Debs had severe pain and swelling of the left knee which impacted on her ability to walk without assistance and noted that she had an impaired gait;
(b)the JCA of 18 February 2019 recorded Ms Debs had intermittent pain and swelling, difficulty with mobility and balance, and relied on a single point stick to get around. That Ms Debs had indicated that her maximum tolerance when walking around a supermarket was 15 minutes; and
(c)a report of Mr Anthony Jacobson, orthopaedic surgeon, dated 29 March 2019 which reported that Ms Debs’ knee pain restricted deep bending and prolonged walking or standing.
The Respondent argued Ms Debs could not be assigned a severe impairment rating under Table 3 as there was no evidence to corroborate a finding that she required assistance from a person to walk around a shopping centre, walk from the carpark into the shopping centre or to stand from a sitting position. The Respondent noted that such a finding would also conflict with Ms Debs’ own evidence that she was able to independently walk from the carpark to the supermarket and around the store with her walking stick—as recorded by the JCA on 13 August 2019. As such, they argued the evidence provided does not support a rating of 20 points.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs’ Osteoarthritis of the left knee was fully diagnosed, treated and stabilised during the qualifying period, relying upon the report of an orthopaedic surgeon and Dr Karantonis’ numerous reports.
The Tribunal considered that the functional impact of this condition was best assessed under Table 3 Lower Limb Function of The Impairment Tables.
Osteoporosis
On 21 January 2020, Dr Philip Wong, Endocrinologist, provided a review of Ms Debs’ bone turnover markers and bone dentistry, observing that:
As you would be aware, she has several risk factors for increased bone loss. This includes her autoimmune hepatitis, previous gastric Roux-en-Y surgery and likely premature menopause. She is also on budesonide 6 mg daily which is equivalent 20 mg prednisolone.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Osteoporosis advising:
Osteoporosis steroid induced, osteopaenia, this condition is partly due to her ageing, severe medial illness and ICU admission with her immobility and the ongoing need for steroid suppressive therapy which is associated with loss of bone density. It is associated with fractures as have occurred and ongoing risk of further such fractures occurring. Treatment has been aimed at stabilising this condition but will be limited in improving bone density due to ongoing steroid needs for her autoimmune hepatitis. This condition is expected to remain constant over the next two years.
Ms Debs said she is constantly breaking bones and has recently qualified for treatment of this condition by way of injection as her condition is rapidly deteriorating.
The Respondent accepts that Ms Debs suffered from osteoporosis, which was fully diagnosed at the qualification period, based on the opinion of Dr Karantonis however, they contended the osteoporosis was not fully treated or fully stabilised as at the qualification period.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs’ osteoporosis was fully diagnosed, treated and stabilised during the qualifying period, relying upon the report of an endocrinologist and Dr Karantonis’ numerous reports. The Tribunal considers that this is a chronic illness, which will fluctuate over time, requiring continuous monitoring, alteration of Ms Debs’ medication to stabilise her bone density but this would not lead to functional improvement
The Tribunal considered that the functional impact of this condition was best assessed under Table 2 And 3 of the Impairment Tables.
Autoimmune hepatitis
On 3 March 2016, Ms Debs’ blood sample screened by Monash Pathology detected Hepatitis A IgG Ab.
On 22 March 2019, Associate Professor Gregory Moore advised that Ms Debs has autoimmune hepatitis proven on biopsy in 2015 and that she would require lifelong immunosuppressants and that the condition will persist indefinitely.
On 17 February 2020, Dr Karantonis’ reported that Ms Debs suffers from autoimmune hepatitis for which she required significant immunosuppressants that make her feel weak, nauseated, fatigued and at risk of infection.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Autoimmune hepatitis, advising:
Autoimmune hepatitis, severe autoimmune hepatitis treated by Liver unit at Monash medical centre needing steroid suppressive therapy and immunosuppressants. This is very likely to be a lifelong medical therapy requirement. This condition is expected to remain constant over the next two years
Ms Debs advised the hearing that she had her operation in 2014 and in 2015, she was diagnosed with autoimmune hepatitis following a biopsy and that she will require medication and annual reviews for this condition for life. Ms Debs advised at the hearing that this condition, particularly the side effect of her mediation, leaves her constantly fatigued and nauseated.
The Respondent accepts that Ms Debs’ autoimmune hepatitis was fully diagnosed, treated and fully stabilised during the qualification period as confirmed by biopsy in 2015. Further, the Respondent noted that Associate Professor Gregory Moore and Dr Karantonis each confirmed a diagnosis of immune hepatitis and relied upon medical evidence which indicated Ms Debs had undertaken all treatments for this condition.
The Respondent contended that the Tribunal could not be satisfied that Ms Debs satisfied the requirements for severe impairment under Table 1 as there is no evidence that she was unable to perform light day to day household activities due to her symptoms of fatigue resulting solely from her autoimmune hepatitis. Specifically, the Respondent argued that Ms Debs’ own evidence was that she was able to perform light day to day household activities such as laundry and light gardening.
The Respondent also contended that there was insufficient evidence for the Tribunal to find that Ms Debs was unable to mobilise around a shopping centre, from a carpark to a shopping centre, or use public transport without assistance from a person due to her immune hepatitis. Further, in accordance with Rule 6(1) of the Impairment Tables, the impairment of a person must be assessed on the basis of what the person can do, not on the basis of what the person chooses to do or what others do for the person. Accordingly, even though there was a reference to Ms Debs having some assistance from her family, there was insufficient evidence regarding the nature and extent of that assistance and in what context it is provided.
The Respondent argued that even if the Tribunal was satisfied that Ms Debs required assistance to perform daily activities (which is not conceded), that the evidence does not support a conclusion that Ms Debs would have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours due to this condition. The Respondent relied on the report of Mr Anthony Jacobson, orthopaedic surgeon, dated 29 March 2019 which reported that in relation to work, being able to work seated and take rest breaks were “advisable” for Ms Debs. Further, the Respondent noted that Ms Debs was undertaking a computer course, and the sessions last two hours, and during this time, she had to take breaks due to her eyes getting sore. Accordingly, they contended that the evidence indicates Ms Debs would be able to complete work-related tasks for a continuous shift of three hours and her autoimmune hepatitis does not impact her ability to do so.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Debs autoimmune hepatitis was fully diagnosed, treated and stabilised during the qualifying period, relying upon confirmed pathology and reports of treating specialist doctors.
The Tribunal considered that the functional impact of this condition was best assessed under Table 1- Functions Requiring Physical Exertion and Stamina of The Impairment Tables.
Depression
On 15 March 2020, Dr Geoffrey Hogan, Consultant Psychologist, reviewed Ms Debs for a psychiatric assessment and advised her general practitioner of the following:
She has chronic major depressive disorder, for which a trial of therapeutic doses of antidepressants would be appropriate.
Dr Karantonis’ report of 10 June 2020 described Ms Debs’ Depression, advising:
Mrs Debs has had a Depressive illness due to her ongoing significant health issues, the death of her son and Incarceration of her husband. Psychiatric advice from

Dr G. Hogan has been that antidepressant medication is warranted for treatment of her Depression but there have been significant medical concerns at the introduction of further medications due to her initially severe autoimmune hepatitis. At present this option is undergoing review.
Ms Debs told the Tribunal she had been suffering from depression for many years and the whole process of applying for the DSP, which Centrelink recommended she do, was adding greatly to her deteriorating mental state, and she is unable to take anti-depressants because of her liver condition.
The Respondent contends that Ms Debs’ depression cannot be considered fully diagnosed as there is no evidence of a diagnosis of the condition by a clinical psychologist or psychiatrist (as required by the Introduction to Table 5) as at the qualification period.
Further, the Respondent contented that even if the Tribunal found Ms Debs’ depression was fully diagnosed, they argued the condition had not been fully treated or stabilised in the qualification period, as Dr Hogan reported that Ms Debs had never engaged in any treatment for her depression and he had recommended a “trial of therapeutic doses of antidepressants”.
The Respondent contended that as Ms Debs’ mental health condition had not been fully diagnosed, treated or stabilised, an impairment rating could not be assigned to this condition.
Having considered all the evidence before it, the Tribunal was not satisfied that Ms Debs’ mental health condition described as depression, was fully diagnosed, treated and stabilised at the date of qualification, noting her condition had not been diagnosed by an appropriately qualified medical practitioner until after the qualification period. The Tribunal did note Dr Karantonis had made numerous refences to Ms Debs’ depression which the Tribunal finds to be a completely understandable diagnosis, particularly given Ms Debs’ complex medical history. However, this diagnosis cannot be relied upon, as Dr Karantonis, is not a clinical psychologist or psychiatrist.
Therefore, the Tribunal did not assign any points under Table 5 – Mental Health Function, for this condition.
CONSIDERATION
Given the complex nature of Ms Debs’ medical situation, the Tribunal assessed her conditions under the specific tables and not in accordance with her individual conditions. The Tribunal notes-- that in accordance with Rule 10(5) of the Impairment Tables, where two or more conditions cause a common or combined impairment, a single rating should be assigned, in relation to that common or combined impairment, under a single Table. Accordingly, only one rating should be assigned under the various Tables for any functional impairment caused by Ms Debs’ numerous conditions.
In reaching its conclusion about Ms Debs’ interrelated medical conditions, the Tribunal relied upon the opinion of Dr Karantonis who observed:
Mrs Debs has ongoing significant daily pain in her knees and shoulder, weakness in her Right hand, ( ulnar nerve specifically ) and generally more weakness in the R upper and lower limbs ( post ICU admission).There are limitation of movement in these affected joints and she continues to fatigues easily on exertion. The combination of the above listed conditions 1 to 9 , restrict her in her day to day activities of daily living to the extent where she calls upon her family to assist her daily. In my opinion without the daily support of her children she would not be able to manage home alone
In my opinion these conditions are not likely to improve.
Consideration Table 2 - Upper Limb Function
The Tribunal finds that Ms Debs’ right shoulder condition and Ulnar nerve neuropathy was having a mild impact on her functionality during the qualifying period as she self-reported and as corroborated by her treating medical practitioners. Ms Debs had right hand weakness and reduced functioning resulting in difficulties with lifting heavy objects, reaching above her head, doing up buttons and shoelaces, and utilising a keyboard or a pen for any length of time. The Tribunal therefore assigned 5 points under Table 2 – Upper Limb Function for this condition.
Consideration Table 3 – Lower Limb Function
The Tribunal finds that Ms Debs’ condition of osteoarthritis of the left knees and osteoporosis was having a mild impact on her functionality during the qualifying period as she self-reported, and as corroborated by her treating medical practitioners. Ms Debs had symptoms of severe pain and swelling resulting in Ms Debs’ inability to walk without assistance and an impairment gait. Ms Debs reported difficulties with walking far outside the home or around a shopping centre, standing or sitting for prolonged periods of time, using stairs, performing household activities or undertaking any strenuous activity. The Tribunal therefore assigned 5 points under Table 3 - Lower Limb Function for this condition.
Consideration Table 1 – Functions requiring physical exertion and stamina
The Tribunal finds that Ms Debs’ condition of Critical illness myopathy, ongoing persisting weakness, and autoimmune hepatitis were having a severe impact on her functionality during the qualifying period as self-reported and as corroborated by her treating medical practitioners.
Dr Karantonis advised that Ms Debs was required to take significant immunosuppressants for the rest of her life which make her feel weak, nauseated, fatigued and places her at risk of infection. Additionally, Dr Karantonis advised that Ms Debs’ complications post treatment have been serious and life threatening, and have resulted in ongoing disability, neurological sequelae and weakness. Dr Karantonis also advised Ms Debs was only managing at home because she had the support of her children.
The Tribunal relied upon the report of Dr Karantonis, dated 10 July 2017 in which he observed:
Mrs Debs has an extensive and complex medical history that essentially has evolved post complications of gastric surgery for weight reduction. Severe life threatening complications results in an extensive intensive care stay of months with many times her not being expected to survive. Subsequent to many complications she has been left with neurological deficits and has also recently developed Autoimmune Hepatitis. This is unrelated to her surgery but involves her immune systems attacking her liver and she has needed to go onto significant immunosuppressive therapy under the liver specialist unit at Monash MC.
…….
Unfortunately her complications post treatment have been serious and life threatening and have resulted in ongoing disability, neurological sequelae and weakness.
The Autoimmune Hepatitis has also added another level of complexity to her treatment in that she also now needs ongoing likely lifelong immunosuppression to control this immune disease.
Her overall current condition is expected to remain approximately the same into the future.
Although there may be small gains, in my opinion these are unlikely to be of any significant nature.

Ms Debs reported she has difficulties with performing all aspects of daily living and is dependent on the care of her daughter to manage on a day to day basis. Ms Debs reported she has difficulty walking far outside the home, or around a shopping centre, that she cannot utilise public transport, stairs, or perform light household activities, undertake any strenuous activity and cannot manage any work related task, even of a sedentary or stationary nature.
The Tribunal also relied upon the advice of Ms Debs’ disability employment service provider and her former employer Coles, that she had no capacity for any form of work.
The Tribunal therefore assigned 20 points under Table 1 – Functions Requiring Physical Exertion and Stamina for this condition, finding Ms Debs had a severe functional impact on activities requiring physical exertion and stamina on the basis of her numerous medical conditions.
IMPAIRMENT RATING
The Tribunal finds that Ms Debs has an overall impairment rating of 30 points comprising 20 points under table 1, 5 points under table 2 and 5 points under table 3. Therefore, Ms Debs satisfies section 94(1)(b) of the Act.
DOES MS DEBS HAVE A CONTINUING INABILITY TO WORK?
To qualify for the DSP, Ms Debs must not only satisfy the requirement that she has impairments that can be assigned 20 points or more under the Impairment Tables, she must also demonstrate that he has a continuing inability to work. Ms Debs 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 her impairment is of itself sufficient to prevent her from improving her capacity to prepare for, find or maintain work through continued participation in the program. A person with a severe impairment is not required to satisfy the Secretary that they have actively participated in a program of support. A person’s impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.
The Tribunal strictly applies the program of support requirement, finding that no power exists to dispense it with the operation of section 94(2)(aa) of the Act. It is irrelevant whether an applicant was aware of the requirement.
The Respondent contended Ms Debs did not satisfy section 94(2)(aa) of the Act during the qualification period, as her Centrelink records indicated that she had completed 0 days in the POS period, and this was less than the required 18 months in accordance with requirements of paragraph 7(2) of the POS Determination. Further, the Respondent argued there was no evidence that Ms Debs had completed a POS that was less than 18 months (in accordance with paragraph 7(3)) or that her participation was terminated (in accordance with paragraph 7(4)).
The POS Determination requires that an applicant for DSP must actively participate in the program for 18 months within the three years prior to the date of claim. As the Tribunal has found that Ms Debs has a severe impairment that is assigned 20 points or more under a single Impairment Table, she is not required to have participated in a program of support and accordingly satisfies section 94(2)(aa) of the Act.
The Respondent contended that Ms Debs had a continuing ability to work with a work capacity of greater than 15 hours per week and relied on the JCA reports of 15 January 2019 and 2 July 2019, which found Ms Debs, with intervention, would be expected to have a baseline work capacity of 15 to 22 hours per week.
Dr Karantonis’ work capacity review of 10 July 2017 in which he opined:
Mrs Debs has an extensive and complex medical history that essentially has evolved
Her current medical restrictions are significant in the areas of lifting, carrying, reaching bending down etc . Although there is some limited work capacity in terms of duties and hours I do not believe that she would be able to reasonably and safely carry out all the inherent requirements of her position as Duty Manager.
In my opinion, taking into consideration her progress to date being some nearly three years since the original injury, I do not believe that she will ever be able to return unrestrictedly to her role as Duty manager.
I believe that the adjustments and restrictions needed in both duties and hours to make it suitable for Mrs Debs to be able to work would essentially present an unrealistic, unreasonable and unworkable position for the employer.
In my opinion although the condition is not work related, should she attempt to return to pre injury duties, there would be a likelihood of an injury occurring.
To the best of my knowledge there are no other duties that would be suitable. Unfortunately this is due to her significant and ongoing injuries.
On 13 November 2017, the Store Manager from Coles Springvale wrote to Ms Debs advising:
I write further to our meeting with you on 11/11/17
As discussed, Coles ('the Company') considers that there is no reasonable prospect of you resuming your pre-injury/illness duties in the near future. In addition, there are no other suitable positions available for you, and for us to provide the facilities necessary to enable you to carry out your pre-illness/injury duties would, in the Company's view, constitute an unjustifiable hardship.
You will appreciate that we are not able to hold your position open indefinitely. I therefore regret to inform you that the Company has decided to terminate your employment. Accordingly, your employment will cease on 15 December 2017 and you will be provided with the required notice payment in accordance with the Coles Supermarkets and BiLo Retail Agreement 2011.
I wish you the best for the future and hope that in time you make a complete recovery. I would also like to take this opportunity of thanking you on behalf for the Company for your loyal service.
The Respondent contented that Ms Debs’ termination letter from Coles did not indicate that she had a continuing inability to work as it only applied to her pre-injury duties and not other forms of employment open to her as identified by the JCA.
The JCA report of 15 January 2019 identified the following barriers and interventions required to return Ms Debs to the work force:
Barriers to be addressed
Barrier: No or limited formal education (E01)
Barrier: Physical limitations restricting type of work (V03)
Barrier: Chronic pain (H12)
Barrier: Endurance limitations (H07)
Interventions
Interventions that were identified for this client
Intervention:    Anxiety management (H61)
Intervention:    Disability management education/counselling (H59)
Intervention:    Functional capacity evaluation/assessment (H55)
Intervention:    Injury management (H57)
Intervention:    Pain management program (M55)
Intervention:    Post-secondary/adult course - vocational (E57)
Intervention:    Secondary rehabilitation (M54)
Intervention:    Vocational assessment/counselling (V52)
Intervention:    Vocational rehabilitation (V51)
Intervention:    Workplace assessment (V55)
The JCA report of 13 August 2019 identified that Ms Debs’ current medical condition reduced her capacity to engage in employment, stating:
Barriers to be addressed
Barrier: No or limited formal education (E01)
Barrier: Limited work goals (V04)
Barrier: Physical limitations restricting type of work (V03)
Barrier: Chronic pain (H12)
Barrier: Endurance limitations (H07)
Barrier: Episodic fluctuations (H04)
Barrier: Manual dexterity limitations (H10)
Barrier: Mobility restrictions (H11)
Barrier: Mood Disorder (MOD)
Barrier: Physical fitness (U06)
Rationale:
Due to the Client's current verified medical condition her capacity to engage in employment is compromised, therefore a partial work capacity of 0-7 hours per week is recommended for this Client, to support engagement in treatment, stabilisation of current symptoms and improvement in work capacity.
The Client has a recommended baseline work capacity of 8-14 hours per week, due to restrictions imposed by her permanent medical conditions. Work capacity is negatively impacted by persistent pain, mood instability, impaired concentration, fatigue and physical limitations which restrict the type of work she can complete. Client's capacity for moderate lifting, bending/squatting and ascending/descending stairs is moderately reduced and she is unable to complete prolonged standing and walking. Client will require shortened shifts which allow for frequent breaks and posture modification to effectively manage pain symptoms.
With referral to a Disability Employment Service - Employment Support Service (DES-ESS) provider to assist with identifying suitable work roles/environments, including part time roles, structured, routine work tasks, shorter shifts, and the ability to sit, stand and walk as required in addition to reduced stress, supportive and friendly environment, developing suitable duties plans (i.e. tasks assigned and rostered days), providing work experience programs to increase work skills and fitness, providing workplace assessments and making appropriate workplace modifications, and providing post placement support, it is anticipated that the Client's work capacity may increase to support 15-22 hours per week.
Interventions
Interventions that were identified for this client
Intervention:    Post-secondary/adult course - vocational (E57)
Intervention:    Vocational assessment/counselling (V52)
Intervention:    Vocational rehabilitation (V51)
Intervention:    Workplace assessment (V55)
Intervention:    Workplace modifications (V62)
Intervention:    Anxiety management (H61)
Intervention:    Disability management education/counselling (H59)
Intervention:    Functional capacity evaluation/assessment (H55)
Intervention:    Psychiatric services/treatment (P54)
Intervention:    Psychological/cognitive assessment/intervention (P55)
Intervention:    Pain management program (M55)
Intervention:    Secondary rehabilitation (M54)
On 29 June 2020, the Service Manager atWork Australia Monash/Peninsula advised the following:
Dolores Debs Job Seeker ID:…. started with atWork Australia in DES employment services program on the 29/10/2019.
I strongly feel due to Dolores Debs Medical condition; this DES programme is not the right one for her. I feel as her Service Manager and working closely with her over the last 6 months, she is simply unable to gain sustainable employment and does not have a capacity due to her Medical Condition and Barriers to work her benchmark 15 hours.
Dolores is sometimes unable to physically attend her fortnightly appointments due to her Medical Condition, but she does meet her mutual obligations with me by strong communication.
Dolores did comply with all obligations of the DES programme including his Job Search requirements, but due to her Medical Conditions, most of the reverse marketing to employers we did for Dolores was not successful.
The Tribunal finds that Ms Debs satisfies section 94(2) of the Act as she has a continuing inability to work. In reaching this conclusion, the Tribunal relies upon the findings of the JCA report, who are considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity dated 15 January 2019 and 13 August 2019 quoted above. The assessor identified serious functional impacts of Ms Debs’ medical conditions, which they identified as presenting complex barriers and restrictions on her ability to work, listed many impediments to her finding work and several measures required to place her in any form of employment. Additionally, the Tribunal relied upon the advice of Ms Debs’ disability employment service provider who identified Ms Debs did not have a capacity to undertake work of 15 hours per week due to her medical condition.
The Tribunal also relied upon the report of Dr Karantonis dated 10 June 2020 which concluded Ms Debs has no capacity for work, stating “I do not believe that there is any current useful work capacity and I do not expect this to change”.
Given all these factors, the Tribunal is therefore satisfied that Ms Debs has a continuing inability to work for the purposes of section 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Ms Debs was qualified to receive the DSP as her impairments attracted 30 impairment points under the Impairment Tables, and as such she was not required to undertake a POS as her impairment was considered to be severe. Additionally, she satisfies section 94(1)(c) of the Act in that she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Act.

I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member

...........[sgd]............................
Associate
Dated: 25 January 2021

Date of hearing:

13 November 2020

Applicant:

By Telephone

Advocate for the Respondent:

Ms Cailin Farrell

Solicitors for the Respondent: Sparke Helmore

[2021] AATA 42

25 January 2021

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	13 November 2020
Applicant:	By Telephone
Advocate for the Respondent:	Ms Cailin Farrell
Solicitors for the Respondent:	Sparke Helmore