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

Fielding and Secretary, Department of Social Services (Social services second review) [2020] AATA 2521 (29 July 2020)
Division:GENERAL DIVISION
File Number:2019/4617
Re:Tania Fielding
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:29 July 2020
Place:Perth

The decision of the Authorised Review Officer dated 1 March 2019, as affirmed by the AAT1 on 12 July 2019, is affirmed.
.........[sgd]..............................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – whether fully diagnosed, treated and stabilised – whether the Applicant had an impairment rating of 20 points or more – Impairment Table 1 – rheumatoid arthritis, Barmah Forest virus, fibromyalgia, Raynaud’s syndrome, spinal disorder – some overlap in functional impact of conditions – Reviewable Decision affirmed

LEGISLATION
Social Security (Administration) Act 1999 (Cth) – s 179(2)(a), Sch 2 cl 4(1)
Social Security Act 1991
(Cth) – ss 23(1), 26, 26(1) 94(1), 94(1)(a), 94(1)(c),
94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(5)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), 10(5), 10(6) 11, Table 1, Table 2, Table 3
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
29 July 2020
OVERVIEW

The Applicant is a 48-year-old woman who is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal).
She initially lodged a claim for a disability support pension (DSP) on 9 August 2018 based on the conditions of rheumatoid arthritis, Barmah Forest virus, fibromyalgia, Raynaud’s syndrome and a spinal disorder (T26/190–222; ST2). However, her claim was rejected by Centrelink on 30 October 2018 (T29/237–238) on the basis that she was not eligible. This was because the decision-maker found that her conditions did not attract an impairment rating of 20 points or more under the Impairment Tables (Original Decision).
The Applicant asked for an internal departmental review of the Original Decision on

15 November 2018 (T33/250). However, on 1 March 2019, an Authorised Review Officer (ARO) of Centrelink wrote to the Applicant to advise her that after reviewing the Original Decision, the ARO had found that it was correct. This meant that the Applicant’s review was unsuccessful (T33/245) (ARO Decision).
On 22 March 2019, the Applicant applied for a review of the ARO Decision in the AAT1 (T36/254–257). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 12 July 2019 (T2/3–11).
The ARO Decision of 1 March 2019, as affirmed by the AAT1 decision of 12 July 2019, is the Reviewable Decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth) (Administration Act)).
On 1 August 2019, the Applicant lodged an application seeking review of the Reviewable Decision in the AAT2 (T1/1–2).
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment during the Qualification Period;
(b)if so, whether each impairment was fully diagnosed, treated and stabilised during the Qualification Period and attracted a rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables); and
(c)whether the Applicant had “a continuing inability to work”.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 14 May 2020 and resumed on 5 June 2020 so that the Applicant could call her general practitioner, Dr Devine, to give evidence. The parties appeared by telephone, as did Dr Devine, in accordance with the Tribunal’s policy not to conduct in-person hearings as a temporary protective measure due to the COVID-19 pandemic. The Tribunal thanks the parties for their cooperation in appearing by telephone.
The Applicant was self-represented. Ms Forsyth of Mills Oakley Lawyers appeared for the Respondent. Oral submissions were made by both parties. The Applicant and Dr Devine gave oral evidence to the Tribunal and were cross-examined.
The following documentary material was before the Tribunal and was admitted into evidence at the hearing:
(a)single page handwritten statement from the Applicant dated 14 February 2020 filed with her application for review (Exhibit A1);
(b)results of CT cervical spine scan performed on 14 March 2020 (Exhibit A2);
(c)section 37 documents (T-documents) numbered T1 to T42, comprising 305 pages (Exhibit R1);
(d)supplementary s 37 documents (Supplementary T-documents) numbered ST1 to ST6, comprising 35 pages (Exhibit R2); and
(e)Secretary’s Statement of Issues, Facts and Contentions dated 24 January 2020 (Exhibit R3).
LEGISLATION
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1)A person is qualified for disability support pension 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 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
(Original emphasis.)
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
…
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(Notes omitted.)
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, which states:
(4)… 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.
(Notes omitted.)
Sections 6(5) and (6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)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.
Fully stabilised
(6)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 10(5) and (6) of the Impairment Tables provide for “[m]ultiple conditions causing a common impairment”:
(5)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.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
Section 11 of the Impairment Tables states:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
“Table 1 – Functions requiring Physical Exertion and Stamina” in the Impairment Tables is the table that is most relevant to the Applicant’s claim for a DSP and is discussed in more detail below under the heading “Impairment rating”.
Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years…
(Original emphasis.)
Section 94(3B) of the Act provides that “[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.” (Original emphasis.)
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Section 94(5) of the Act continues to define “work” as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 9 August 2018. Consequently, the relevant qualification period is

9 August 2018 to 8 November 2018 (the Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a Disability Support Pension. There is little authority in the Court concerning the operation of these important provisions.

It is to be noted at the outset that, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at 7 [27]–[28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
Impairment rating
The “Introduction to Table 1” in the Impairment Tables states:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
A mild functional impact, which would attract five points, is defined by Table 1 of the Impairment Tables as follows:
There is a mild functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
(Original emphasis.)

A “moderate” functional impairment, which would attract 10 points, is defined by Table 1 of the Impairment Tables as:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)     is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)     has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)     use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)     perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
(Original emphasis.)
Whereas, a “severe” functional impact under Table 1 of the Impairment Tables, which would attract 20 points, is defined as follows:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)     walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)     walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)     use public transport without assistance; or
(iv)    perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
(Original emphasis.)
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from impairments during the Qualification Period?
The Respondent accepted that the Applicant suffered from impairments during the Qualification Period due to her medical conditions of rheumatoid arthritis, Barmah Forest virus, fibromyalgia and Raynaud’s syndrome, thus satisfying s 94(1)(a) of the Act (Exhibit R3, para [31]). The Tribunal agrees that the medical evidence before the Tribunal (contained in Exhibits R1 and R2), as well as the evidence of Dr Devine, supports a finding that the Applicant suffered from impairments during the Qualification Period.
Were the Applicant’s impairments permanent?
Before the Tribunal can assign an impairment rating for each condition, the Tribunal must consider whether, on the medical evidence, the Applicant’s medical conditions were permanent. That is, whether the conditions were fully diagnosed, treated and stabilised at the time of the Qualification Period.
In a letter written approximately two months before the start of the Qualification Period, dated 14 June 2018, Dr Devine stated her opinion that the Applicant’s following conditions were permanent (T25/187):
I can confirm that Tania has been diagnosed with Rheumatoid arthritis, Barmah Forest infection, Fibromyalgia and Raynaud’s. The conditions are permanent
Tania has been seen by specialists including rheumatologists and pain specialists.
She suffers from associated chronic symptoms which are permanent.
There are no new treatments planned currently.
The Respondent accepts that the Applicant’s rheumatoid arthritis condition, Barmah Forest virus and Raynaud’s syndrome were fully diagnosed, treated and stabilised at the Qualification Period (Exhibit R3, paras [32], [35], [37]). The Tribunal agrees that the medical evidence supports a finding that these conditions were permanent at that time.
However, the Respondent contended that
at the time of the Qualification Period the Applicant’s condition of fibromyalgia was fully diagnosed but not fully treated and stabilised (Exhibit R3, para [40]). In support of this submission, the Respondent referred to several medical and other reports. These included a Job Capacity Assessment Report dated

30 October 2018 (the JCA Report) which recorded that the Applicant had just commenced hydrotherapy for this condition and was waiting to see a rheumatologist through the public system (T28/228).
Other evidence indicates that the Applicant was still trialling medications towards the end of the Qualification Period. For example, a report by the Applicant’s rheumatologist dated

4 November 2018 noted a flare up of her fibromyalgia symptoms due to a sudden cessation in medications (T30/239). This suggests that the Applicant was still undergoing treatment and that her condition had not been stabilised. A report several days later, dated

8 November 2018, from the Applicant’s pain management consultant confirmed that the Applicant attended the hospital for a review on 8 November 2018. He also noted a “recent introduction” of a drug had not helped, and that an increase of another drug “might be helping” (T31/241). This report also recommended the Applicant trial a TENS machine (T31/242).
Additionally, in an earlier report by a registrar in pain management and a consultant in pain management from Fiona Stanley Hospital dated 27 April 2018, it was suggested that the Applicant participate in a “pain understanding managing programme” (PUMP programme) three days a week for five weeks which would give her “one to one interaction with the Allied Team with regards to a tailor made exercise programme and psychological strategies” (T21/179). The Tribunal finds that this medical evidence indicates that treatment options to stabilise the Applicant’s fibromyalgia condition were still being explored at the end of the Qualification Period and that the condition was not fully stabilised.
The Respondent also contended that at the Qualification Period, the Applicant’s spinal function condition was not fully diagnosed, treated and stabilised (Exhibit R3, para [45]). The Tribunal agrees that the Applicant’s spinal function condition was not fully diagnosed, treated and stabilised at that time based on the following evidence. In November 2018 imaging was requested by the Applicant’s rheumatologist. The results were stated in a report dated 4 November 2018 which recommended, amongst other things, a further MRI of the Applicant’s lumbar spine and “SI joints” (T30/239). The Tribunal notes that a further report dated 18 November 2018 recorded the results of the MRI (T32/243). This evidence shows that at the end of the Qualification Period (8 November 2018), the Applicant’s spinal condition was still being investigated. This was also confirmed by Dr Devine who agreed that as at November 2018 the Applicant’s lower back condition was still being investigated (transcript/46).
Consequently, the Tribunal can only consider whether to assign an impairment rating with respect to the Applicant’s conditions of rheumatoid arthritis, Barmah Forest virus and Raynaud’s syndrome.
Did the Applicant have an impairment rating of at least 20 points under the Impairment Tables?
In adopting a function-based approach, as required by s 5(2)(b) of the Impairment Tables, and before considering the medical evidence relating to each specific condition, the Tribunal will first consider the evidence given by the Applicant regarding the functional impact of her conditions during the Qualification Period.
As required by the Impairment Tables, the Applicant’s evidence must then be corroborated by medical evidence. The Tribunal will consider this evidence starting with the evidence given at the hearing by Dr Devine. The Tribunal will also refer to the JCA Report written during the Qualification Period on 30 October 2018 which notes the functional activities that the Applicant could undertake at that time.
The Tribunal will then consider the documentary medical evidence relating to the specific conditions that have been fully diagnosed, treated and stabilised, namely the Applicant’s rheumatoid arthritis, Barmah Forest virus and Raynaud’s syndrome. This evidence is extensive and was summarised in detail by the Respondent in Exhibit R4, paras [32]–[47]. The Tribunal will discuss the medical evidence relevant to the functional impact of these conditions. Sometimes the evidence of functional impact refers to several conditions together.
The Applicant’s evidence of the functional impact of her conditions
During the Qualification Period, the Applicant’s evidence was that she could drive her son to school, being approximately a 10-minute drive in an automatic car because she could no longer drive a manual car. She stated in the winter months she had difficulty getting out of bed and so her mother would assist with taking her son to school. If the Applicant did not have to carry much, she could do small amounts of grocery shopping (transcript/12). She agreed she could drive to the shop to get a small amount of groceries and then go home again (transcript/14). The Applicant’s evidence was that she did not use public transport but would not have been able to walk to the bus stop which was approximately three streets away from her home (transcript/15).
The Applicant gave evidence that she had difficulty making her bed, and a friend would sometimes help her. She could vacuum but described being in pain for days afterwards. The Applicant described not being able to do dishes but could undertake straightforward cooking. For example, she could not peel potatoes, so would have to bake them. She could make sandwiches but described being in a lot of pain and having to run her hands under warm water to help her circulation (transcript/13). The Applicant described not being able to pick up heavy plates and stated that she only had plastic plates because they were easier for her to pick up (transcript/15).
The Applicant described being able to use steps with a railing to access her above ground spa. However, she would not use it unless there was someone there to help her out (transcript/14).
The Applicant was asked about her work during the Qualification Period because her employee payment summary showed that she was working at a hotel for between five and 18 hours per week during that time. The Applicant stated that she was working as a duty manager and that, “I allocated everybody else to carry and do - and perform all the work that I needed done” (transcript/15). When asked if she was serving customers or doing any computer work, the Applicant stated (transcript/16):
No, I wasn’t doing much at all, I’d just allocate everybody else. Everybody was actually carrying me. The boss I’d worked for for 12 years, who was happy to have me on the light duties and allocate the work to the younger colleagues instead of me doing it all.
The Applicant described hurting her back in approximately June 2018, “and then everything went downhill”. The following exchange is relevant (transcript/17):
APPLICANT:              Every day is different because of all the different diseases I have, and when we hit winter it gets worse. I have the rheumatoid arthritis which is throughout my whole back, my neck, my shoulders, my back. I don’t wear any clothes that has hoodies on them or anything like that. I minimise all my clothes because of my diseases, and I get the pins and needles in my hands, feet, so if I - if I - by - by about June I’m more or less good for nothing, if you want to put it in those terms.
MS FORSYTH:          Is that because of the cold or because you had another fall, or what happened in June - - -?
APPLICANT:              No, because of the cold, because of the weather. The weather - the weather cripples me. The weather cripples me and that’s where I find it the most hardest to do anything at all, even to get out of bed in the morning, to have my tablets, I have to get up, have my tablets and go back until they’ve kicked in, before I can actually - I can’t really move at all; I can’t move - - -
MS FORSYTH:          I just wanted to point out to you, Ms Fielding, that there’s nowhere in the medical evidence where it says that your pain only comes with the - I mean it’s understandable colder months, but there’s nothing in there to say you don’t do anything at all in the colder months. Is there any evidence from your GP or a friend or - anything in the medical - you do have evidence?
APPLICANT:              No, I probably don’t. It’s not something that I thought about because I’m in pain all year round. It’s just - it’s twice as bad in winter, with the rain - I carry buckets of water around with me, hot water, to get my circulation to go - go in my hands. I only sleep a minimum of an hour a night because I have to get up with pins and needles in my feet and my arms and, you know, run them under warm water to get the circulation going. Winter is a lot worse than the other times of years, but I’m not saying the other time of year is much fun either, but winter does cripple me.
MS FORSYTH:          But do you accept though that the medical evidence that’s currently before the tribunal seems to suggest that you were okay to mow your lawn, you could drive and do shopping on your own, you were okay with - - -?
APPLICANT:              In April I would’ve still been doing that, in April. Yes, I agree that in April I would’ve probably been still doing that; not by June.
The Applicant’s evidence was that she had swollen joints in her fingers due to having rheumatoid arthritis, as well as in her wrists, shoulders, elbows and back. She stated that she was able to turn the pages of the Tribunal documents during the hearing because she had taken medication, including pain medication that morning (transcript/21). She described having difficulty holding a mobile telephone without using earphones (transcript/21).
The Applicant described relying on painkillers to undertake daily tasks and needing frequent rest breaks (transcript/22). She stated, “I spend 90 per cent of my time just lying, lying around, because it just hurts too much” (transcript/26). The Applicant described having difficulty bending over, and that she needed to sit instead of bending (transcript/23). She was able to shower independently but used a chair. She did not use a hairdryer because it was too heavy for her (transcript/22–23). The Applicant further stated (transcript/23):
MS FORSYTH:          Okay, so just to clarify, what was your writing like during that 13-week period and what was the situation with showering during that 13-week period?
APPLICANT:              I have always had a chair and 90 per cent of the time I don’t wash my hair. And I don’t wear any clothes that have to be buttoned up. I don’t wear anything heavy. I wear probably two T-shirts that are that loose, are that fine. I don’t wear anything with hoodies. I don’t wear any jewellery. I do everything that is lightweight because it hurts my body. I have plastic cups. I don’t know how to explain it any more. Plastic cups, plastic plates, very light clothing. I don’t wear jeans. I don’t wear anything that’s tight or hard to put on, anything with buttons. All my jumpers that were all these, you know, Billabong, Roxy, whatever with ordinary hoodies and all that, they’ve all gone. I can’t no longer wear anything like that. Everything is too heavy on my shoulders. Washing my hair is hard enough let alone – you know, half the time I have to get the (indistinct). I’ll sit on the chair and my daughter will shave my legs for me. I can’t bend over to do all my nails or anything like that. It’s - - -
MS FORSYTH:          So, just to clarify, are you talking about now or are you talking about in 2018?---
APPLICANT:              Yes, 2018, I think it was much the same.
Dr Devine’s evidence regarding the functional impact of the Applicant’s conditions
Dr Devine was able to give some general evidence about the functional impact of the Applicant’s conditions. Dr Devine confirmed that the Applicant had functional issues relating to her conditions (Transcript/40-41):
DR DEVINE:              I’d say from then until now, so including those dates that you’re mentioning, Tania did have functional issues related to those conditions.
SENIOR MEMBER:    And what sort of functional issues?
DR DEVINE:              She suffers from a lot of pain, she suffers from lots of fatigue, lots of joint pain, severe pain and paraesthesia and issues with temperature sensitivity in her hands and feet, which is a real issue for her. She has lots of issues with pain and long-term (indistinct) anxiety as well for her.
SENIOR MEMBER:    You referred to paraesthesia?
DR DEVINE:              Yes.
SENIOR MEMBER:    Can you explain to me what that is?
DR DEVINE:              So she has a lot of altered sensation in her hands and feet, which is mainly related to the Raynaud’s.
Dr Devine stated that the Applicant has had difficulty doing her own housework, such as cleaning and vacuuming, and was aware that the Applicant’s mother often assists the Applicant with these tasks. She also thought the Applicant had difficulty carrying heavy objects. With respect to mobility, Dr Devine believed that: “[d]riving is fine; catching public transport, I can’t see an issue with that, depending on how far it is to get to the bus stop” (transcript/41). When asked by the Senior Member about the Applicant’s ability to walk around a shopping centre or climb stairs, Dr Devine stated (transcript/41):
It’s not something I’ve directly asked Tania whether she can do or not, but definitely walking for periods of time with her feet symptoms she would be affected with that. And then if she had a flare-up of her joint pain she would be affected walking, yes.
She had not, however, documented whether the Applicant would have any difficulties picking up items or doing up buttons, zippers or shoelaces, but stated, “having Raynaud’s in the fingers, if she had active symptoms at the time, those kind of things would be affected” (transcript/43). Dr Devine was not certain about the Applicant’s ability to put plates away or put clothes away after they had dried as she had not discussed that with the Applicant (transcript/43). When asked if the Applicant carried a handbag to her medical appointments, Dr Devine recalled her attending just with her phone and keys which she carries in her hands (transcript/43).
JCA Report dated 30 October 2018
The JCA Report, prepared following an assessment of the Applicant by videoconference on 16 October 2018, relevantly records the functional impacts of the Applicant’s conditions. Regarding her rheumatoid arthritis and its impact on her upper limb function, the JCA Report stated (T28/230-1):
Does not meet the majority of descriptors for mild functional impact on activities using hands or arms. Client is able to carry up to 5 kg load e.g. a bag of spuds using both hands, pick up light bulky objects, doing up her buttons, some difficulty handling small objects and above shoulder reaching. Client reported that she is able to do her household chores with pacing.
Also, with respect to the Applicant’s rheumatoid arthritis, the JCA Report states (T28/231):
There is a mild functional impact on activities requiring physical exertion or stamina. Client reported that she is able to walk for up to 30 minutes, complete light household items such as sweeping but needs assistance with vacuuming, and some assistance in changing sheets, however does her own lawn mowing… Client has been experiencing joint pains due to Rheumatoid arthritis and Barmah virus and Raynaud’s disease which also contribute to her reduced endurance and limitation due to chronic pain.

The JCA Report stated the opinion that the Applicant had a work capacity of “8-14 hours per week due [to] ongoing pain, musculoskeletal symptoms and the impact of these conditions on functions such as task completion, endurance and episodic fluctuations” (T28/233). It was noted that the Applicant, “currently works as a bar manager 3 1/2 hours a week (up to 6 hours a week)” and further that, “[t]his work as per pain specialist report, is heavy in nature, and not in line with client’s capabilities given medical conditions listed” (T28/234).
Rheumatoid arthritis
The Tribunal will now examine relevant medical evidence of the functional impact of the Applicant’s rheumatoid arthritis condition that is approximate to the Qualification Period.
A letter from a pain management registrar and pain management consultant from Fiona Stanley Hospital dated 27 April 2018 (T21/176–180) notes some of the functional impacts of the Applicant’s conditions. The letter notes the pain from the Applicant’s rheumatoid arthritis, but also notes her other conditions of Barmah Forest virus and Raynaud’s syndrome. The letter records the following:
[S]he has pain everywhere over her whole body. She describes the pain as burning, ache with no real radiations. Aggravating factors are movement, being on her feet and working. The pain is relieved to a certain extent by resting and medications. (T21/176.)
Currently, she works in a hotel as a duty manager… It is quite a physical job and therefore she is only able to do one shift per week and after which she “pays for it”. She reports that she has quite a supportive boss who has allowed her to continue in this role. (T21/177.)
In terms of function, she is independent with her personal care. For domestic duties, she does receive assistance from a friend sometimes with the vacuuming. For community activities, she does drive reasonable distances and go shopping on her own. Also, she mows her own lawn as she cannot afford to pay someone. (T21/177.)
A report from a physiotherapist dated 24 May 2018 (T24/186) recorded that the Applicant had been attending physiotherapy for the past year for the management of chronic pain, and primarily mechanical lumbar pain. The letter stated that, “activities involving forward bending and lifting aggravate the condition, leaving her unable to work for weeks after”.
The Tribunal will now consider the number of impairment points for this condition, following a brief summary of the relevant evidence.
On the Applicant’s evidence outlined above, she had some difficulty undertaking day to day household activities such as making her bed and vacuuming and had obtained assistance from her mother to undertake household tasks. She experienced pain and difficulty when preparing food (for example, she could not peel a potato, she experienced pain after making sandwiches and would use plastic plates and other light items in the kitchen because heavy items were difficult for her to carry). She also experienced exertion when washing her hair, would wear loose clothing and could not hold a hairdryer over her head. She could undertake light grocery shopping and could drive herself to the shops. As a duty manager, she was able to perform work related tasks of a sedentary nature in that she acted in a supervisory capacity and delegated her work tasks to colleagues.
The medical evidence of Dr Devine confirmed that the Applicant had difficulty doing her own housework, and carrying heavy objects, but also confirmed that she could carry her phone and keys. Dr Devine was also of the opinion that the Applicant could drive or catch public transport depending on how far away the bus stop was.
The JCA Report noted that the Applicant could walk for up to 30 minutes, complete light household tasks with pacing, do lawnmowing, but that she had some difficulty handling small objects and above shoulder reaching. This report also noted that the Applicant worked between three to six hours a week as a bar manager, however the Applicant’s employee payment summary showed that she was working at a hotel for between five and eighteen hours per week.
In summary, the Tribunal finds that the most applicable impairment rating under Table 1 was that there was a “moderate functional impact on activities requiring physical exertion or stamina”, which would attract 10 points under this Impairment Table. This is because, with specific reference to the activities described in Table 1, the Applicant experienced frequent symptoms of pain and fatigue when performing day to day activities around the home, was unable to walk far outside the home, but could drive to local shops in her car and walk around the supermarket to undertake a light grocery shop. She had difficulty performing some of her household activities but was able to perform sedentary tasks as a duty manager. The evidence is somewhat contradictory as to whether this job required a high level of physical exertion. The Applicant’s evidence was to the effect that it did not. However, the medical report of the pain management registrar and pain management consultant dated 27 April 2018 recorded that “it is quite a physical job and therefore she is only able to do one shift a week” (T21/177).
Barmah Forest virus
There does not appear to be any medical evidence before the Tribunal that separately notes the functional impact caused by this virus alone. The references to the functional impact of this virus in the medical documentation before the Tribunal are primarily contained in medical documentation relating to the Applicant’s rheumatoid arthritis condition, which has already been considered above.
Raynaud’s syndrome
A medical certificate from the Applicant’s general practitioner, Dr Devine, dated

23 January 2018 (T19/173) notes the symptoms of “[p]ain in hands and feet, extreme response to cold temperature” for the Applicant’s Raynaud’s syndrome. A medical report by a consultant in pain management at Fiona Stanley Hospital dated 8 November 2018 also recorded that the Applicant “experiences pain in her fingers” from this syndrome which

“is worse in the cold weather” and that “[s]he has pins and needles in her feet” (T31/241). A medical certificate from Dr Devine dated 21 March 2019 (T35/253) similarly records “[p]ain in hands and feet. Very painful in cold temperatures” as symptoms of the Applicant’s Raynaud’s syndrome. Dr Devine also provided confirmation of the Applicant’s medical conditions on 22 May 2019, when she noted “pain, change of colour of extremities” as further symptoms (T38/262). The JCA Report records that this condition causes her sleep interruption (T28/229).
The medical evidence in the preceding paragraph sets out the symptoms of the Applicant’s Raynaud’s syndrome, namely pain and sensitivity in her hands and feet. However, it does not detail the separate functional impact of these conditions in terms of how the condition impacts upon the Applicant’s activities. Thus, the Tribunal is not of the opinion that there is not enough evidence of the functional impact of the Applicant’s Raynaud’s syndrome to enable it to be separately assessed under “Table 2 – Upper Limb Function” and/or “Table 3 – Lower Limb Function”.
Additionally, pain and swelling in the Applicant’s hands which caused her functional difficulties, including difficulty with household tasks (such as bed making and vacuuming), difficulty carrying heavy plates, pain in her joints when making sandwiches and an inability to peel potatoes, has already been taken into account when assessing the Applicant’s rheumatoid arthritis. This would prevent the Tribunal from assigning a separate impairment rating under Table 2, for example, because ss 10(5) and (6) of the Impairment Tables effectively provide that where a common or combined impairment results from two or more conditions, it is inappropriate to assign a separate impairment rating for each condition as this would result in double counting.
Consequently, no separate impairment rating can be assigned for the Applicant’s Raynaud’s syndrome.
CONCLUSION
During the Qualification Period the Applicant was not eligible to receive a DSP. This is because, at the time of the Qualification Period, the Tribunal has found that her conditions only attracted 10 points under Table 1 of the Impairment Tables.
As the Applicant’s conditions did not attract 20 points under more than one Impairment Table, it is unnecessary to consider whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act.
The Tribunal understands that the Applicant will be disappointed, and possibly distressed, by this decision. However, the Applicant can make a new claim for DSP and can submit up to date medical evidence about the diagnoses and current functional impairments caused by her conditions.
Almost two years have passed since the Qualification Period. Since that time, the Applicant’s condition of fibromyalgia and her spinal disorder may now have been fully diagnosed, treated and stabilised, depending on the medical evidence. If so, they will be able to be assessed to ascertain whether an impairment rating can be assigned to them.
Additionally, it also appeared to the Tribunal at the time of the hearing that the Applicant’s conditions may have worsened between the Qualification Period and the date of the hearing. Depending on the medical evidence, they may now attract a higher rating under the Impairment Tables.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

........[sgd]................................................................
Associate
Dated: 29 July 2020

Dates of hearing: 14 May 2020 and 5 June 2020

Applicant: Self-represented

Counsel for the Respondent: Ms J Forsyth

Solicitors for the Respondent: Mills Oakley Lawyers

[2020] AATA 2521

29 July 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Natural Justice

Dates of hearing:	14 May 2020 and 5 June 2020
Applicant:	Self-represented
Counsel for the Respondent:	Ms J Forsyth
Solicitors for the Respondent:	Mills Oakley Lawyers