Franklin and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2162
•9 July 2020
Franklin and Secretary, Department of Social Services (Social services second review) [2020] AATA 2162 (9 July 2020)
Division:GENERAL DIVISION
File Number(s): 2019/5187
Re:Karen Louise Franklin
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member D K Grigg
Date:9 July 2020
Place:Brisbane
The Tribunal affirms the decision under review.
......................[SGD]................................
Member D K Grigg
Catchwords
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – whether severe impairment - whether continuing inability to work - decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
9 July 2020
INTRODUCTION & CLAIM HISTORY
On 11 June 2018 Ms Karen Franklin lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·Chronic thoracic back pain from a motor vehicle accident 9 years ago;
·Familial Adenomatous Polyposis – ileorectal anastomosis surgery 2014;
·Chronic gastrointestinal issue since surgery;
·New pain in sacroiliac joint being investigated and causing severe pain, burning and numb sensations in hip/leg/foot;
·Thoracic outlet syndrome – pain in arms/hands being investigated.
[1]Exhibit 1, T Documents, T8, pages 68-99, Ms Franklin’s Claim for DSP dated 20 May 2018 and received by Centrelink on 11 June 2018.
In July 2018 the Department of Human Services (“Centrelink”) referred Ms Franklin to an occupational therapist for a DSP medical assessment. The assessor recommended that Ms Franklin be referred for a Job Capacity Assessment (“JCA”).[2]
[2] Exhibit 1, T Documents, T12, pages 108-109, DSP Medical Assessment Recommendation.
On 3 August 2018 Ms Franklin had a JCA conducted face-to-face with a registered occupational therapist. The JCA reported that Ms Franklin’s:[3]
[3] Exhibit 1, T Documents, T13, pages 110 – 120, JCA report dated 24 August 2018.
(a)chronic back pain was permanent and warranted a 10 point impairment rating because:
(i)she was able to sit and drive a car for 30 minutes;
(ii)she was unable to bend forward to pick up a light object placed at knee height;
(iii)she was observed to be able to sit for 45 minutes during JCA;
(iv)Ms Franklin reported she cannot lift, bend or carry objects as this exacerbates pain symptoms;
(b)depression was not fully diagnosed, treated or stabilised;
(c)symptoms following her colectomy were not fully diagnosed, treated or stabilised;
(d)jaw tumour was not fully diagnosed, treated or stabilised;
(e)sacroiliac joint (“SIJ”) pain was not fully diagnosed, treated or stabilised;
(f)thoracic outlet syndrome was not fully diagnosed, treated or stabilised; and
(g)thrush condition developed following surgery was not fully diagnosed, treated or stabilised.
Following the JCA, Centrelink rejected Ms Franklin’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[4]
[4] Exhibit 1, T Documents, T14, pages 121 – 122, Rejection of claim for DSP dated 24 August 2018.
On 17 November 2018 Ms Franklin sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”).[5]
[5] Exhibit 1, T Documents, T15, pages 123 – 124, Request for a review dated 17 November 2018.
Ms Franklin provided the following additional medical evidence in support of her DSP claim:
(a)a report from Dr Matthew Remedios, Consultant Gastroenterologist and Interventional Endoscopist dated 31 August 2018. Dr Remedios reported that:[6]
(i)Ms Franklin had colonic surgery on 24 April 2014;
(ii)Ms Franklin has had numerous scans in order to monitor her situation;
(iii)Ms Franklin is being treated with medications;
(iv)Ms Franklin has significant pain issues;
(v)A gastroscopy and flexi-sigmoidoscopy were planned; and
(b)a Centrelink Medical Certificate by Dr Mark Craig, General Practitioner, dated 30 August 2018 which confirms that Ms Franklin was diagnosed with Familial Adenomatous Polyposis (“FAP”) in December 2013 and Thoracic Outlet Syndrome in June 2018;[7] and
(c)a Centrelink Medical Certificate of Dr Craig dated 21 March 2019 which states that Ms Franklin was diagnosed with Bilateral SIJ Incompetence in January 2018.[8]
[6] Exhibit 1, T Documents, T16, page 134, Report of Dr Remedios dated 31 August 2018.
[7]Exhibit 1, T Documents, T16, page 133, Centrelink Medical Certificate by Dr Mark Craig dated 30 August 2018.
[8]Exhibit 1, T Documents, T16, page 153, Centrelink Medical Certificate by Dr Mark Craig dated 21 March 2019.
In February 2019 Centrelink referred Ms Franklin for another DSP medical assessment. The assessment was conducted by an exercise physiologist who recommended that, based on further medical evidence provided by Ms Franklin, Ms Franklin be referred for a further JCA.[9]
[9] Exhibit 1, T Documents, T17, pages 135 – 136, DSP Medical Assessment Recommendation.
On 18 March 2019 Ms Franklin had a JCA conducted face-to-face with a registered occupational therapist. The JCA reported that Ms Franklin’s:[10]
[10] Exhibit 1, T Documents, T18, pages 137 – 150, JCA report dated 24 August 2018.
(a)chronic back pain was permanent and warranted a 10 point impairment rating because:
(i)she was able to sit and drive a car for 30 minutes;
(ii)she was unable to bend forward to pick up a light object placed at knee height;
(iii)she was observed to sit for 45 minutes during the JCA;
(iv)Ms Franklin reported she cannot lift, bend or carry objects as this exacerbates pain symptoms;
(b)depression was not fully diagnosed, treated or stabilised;
(c)FAP was fully diagnosed, treated and stabilised but due to limited evidence an Impairment Rating could be assigned;
(d)jaw tumour was fully diagnosed, treated or stabilised but due to limited evidence an Impairment Rating could not be assigned;
(e)SIJ pain was fully diagnosed but not fully treated or stabilised;
(f)thoracic outlet syndrome was fully diagnosed but not fully treated or stabilised; and
(g)thrush condition developed following surgery was not fully diagnosed, treated or stabilised.
[11] Exhibit 1, T Documents, T22, pages 158 – 164, Decision of ARO dated 29 April 2019.
The subsequent review by the ARO was unsuccessful on the grounds that
Ms Franklin did not have an impairment rating of 20 points or more.[11]Ms Franklin lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 14 June 2019.[12] The SSCSD rejected Ms Franklin’s claim and affirmed the ARO’s decision on 5 August 2019.[13]
[12]Exhibit 1, T Documents, T23, pages 165 – 170, AAT Application for Review of Decision (Social Services & Child Support Division) dated 14 June 2019.
[13]Exhibit 1, T Documents, T2, pages 5 – 11, SSCSD’s Decision and Reasons for Decision dated 5 August 2019.
Ms Franklin has sought a review of the SSCSD’s decision by this Tribunal.[14]
[14] Exhibit 1, T Documents, T1, pages 1 – 4, Application for Review of Decision dated 22 August 2019.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”): –
(a)Ms Franklin must have a physical, intellectual or psychiatric impairment;
(b)Ms Franklin’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[15] and
(c)Ms Franklin has a continuing inability to work.
[15] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Franklin meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 11 June 2018), unless
Ms Franklin becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[16] Therefore, in order to qualify for DSPMs Franklin must have met the Section 94 Requirements between 11 June 2018 and 10 September 2018 (“Qualification Period”).[16]See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Franklin’s impairments after the Qualification Period can be considered if it ‘casts light on’ the functional impact of the impairments as at the Qualification Period.[17]
[17]See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]–[29].
DID MS FRANKLIN HAVE PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
What is an Impairment?
The Determination defines ‘Impairment’ to mean ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’ and ‘condition’ as ‘a medical condition’.[18]
[18] Determination, s 3.
Ms Franklin’s medical conditions
Familial adenomatous polyposis (FAP)
Ms Franklin was diagnosed with FAP in December 2013.[19]
[19]Exhibit 1, T Documents, T16, page 133, Centrelink Medical Certificate by Dr Mark Craig dated 30 August 2018.
Ms Franklin had colonic surgery on 24 April 2014.[20]
[20] Exhibit 1, T Documents, T 13, page 113, JCA Report dated 24 August 2018.
In November 2014 Dr Keogh reported that Ms Franklin was undergoing extensive intensive therapy in a rehabilitation program.[21]
[21] Exhibit 1, T Documents, T6, page 65, Medical certificate of Dr Keogh dated 27 November 2014.
In June 2018 Ms Franklin told Centrelink that:[22]
(a)she had a total colectomy with ileo-rectal anastomosis surgery in April 2014;
(b)she suffers from chronic nausea and gastrointestinal issues;
(c)she is treated with various medications and has frequent gastroscopies and ultrasounds to monitor/prevent further polyp growths; and
(d)she has severe nausea often leading to fainting/collapsing episodes and frequent bowel motions which has caused anxiety.
[22] Exhibit 1, T Documents, T11, page 105 – 107, Ms Franklin’s Submissions dated 11 June 2018.
In August 2018 Dr Matthew Remedios, Consultant Gastroenterologist and Interventional Endoscopist reported that:[23]
(a)Ms Franklin had colonic surgery on 24 April 2014;
(b)Ms Franklin has had numerous scans in order to monitor her situation;
(c)Ms Franklin is being treated with medications;
(d)Ms Franklin has significant pain issues;
(e)A gastroscopy and flexi-sigmoidoscopy were planned; and
[23] Exhibit 1, T Documents, T16, page 134, Report of Dr Remedios dated 31 August 2018.
In June 2019 Dr Craig reported that as a result of Ms Franklin’s total colectomy:[24]
(a)she experiences stomach and bowel issues including regular impact on her continence;
(b)she has had regular episodes of bladder urgency/incontinence due to the increased medications she takes to relieve pain; and
(c)Ms Franklin meets the criteria for a mild functional impact.
[24] Exhibit 1, T Documents, T23, page 171, Report of Dr Craig dated 13 June 2019.
Jaw
In June 2018 Ms Franklin told Centrelink that:[25]
(a)She has a desmoid tumour in jawline;
(b)The tumour is causing fatigue, difficulty in talking/articulating clearly and ear ache.
[25] Exhibit 1, T Documents, T11, page 105 – 107, Ms Franklin’s submissions dated 11 June 2018.
Chronic Back Pain
In August 2014 Dr Keogh reported that Ms Franklin was suffering from chronic back pain which was being treated with analgesics, and physiotherapy.[26]
[26] Exhibit 1, T Documents, T5, page 63, Medical certificate of Dr Keogh dated 28 August 2014.
In November 2014 Dr Keogh reported that Ms Franklin was suffering from chronic thoracic back pain which was likely to show considerable improvement within two years.[27]
[27] Exhibit 1, T Documents, T6, page 65, Medical certificate of Dr Keogh dated 27 November 2014.
In February 2018 Dr Keogh reported that Ms Franklin:[28]
(a)was still suffering from chronic back pain which was unresponsive to therapies; and
(b)could not lift or bend.
[28] Exhibit 1, T Documents, T7, page 67, Medical certificate of Dr Keogh dated 8 February 2018.
In May 2018 Dr Keogh reported that Ms Franklin:[29]
(a)was still suffering from acute and chronic back pain which was unresponsive to therapies;
(b)had pain on movement as well as rest;
(c)was being treated with analgesia and had been referred to a pain management specialist; and
(d)could not lift or bend.
[29] Exhibit 1, T Documents, T9, page 101, Medical certificate of Dr Keogh dated 21 May 2018.
In June 2018 Ms Franklin told Centrelink that:[30]
(a)there was no specified cause of pain despite x-rays, CT scans and MRIs;
(b)she had undertaken 2 pain management programs;
(c)she had tried physiotherapy, chiropractic treatments and two nerve blocks without success;
(d)she had been having treatment for her back pain since a motor vehicle accident in 2009;
(e)her back pain is treated with medication, including oxycontin;
(f)she had been referred to a pain specialist in May 2018; and
(g)she was in severe pain.
[30]Exhibit 1, T Documents, T11, page 105 – 107, Ms Franklin’s Submissions received by Centrelink on 14 June 2018.
Sacroiliac Joint Pain
In February 2018 Dr Keogh reported that Ms Franklin had developed recent bilateral neuropathic leg pain.[31]
[31] Exhibit 1, T Documents, T7, page 67, Medical certificate of Dr Keogh dated 8 February 2018.
In June 2018 Ms Franklin told Centrelink that she:[32]
(a)has had CT scans, MRI’s and SPECT imaging to investigate her SIJ pain;
(b)has undertaken physiotherapy treatment; and
(c)has severe pain, numbness, tingling which has affected her ability to drive.
[32]Exhibit 1, T Documents, T11, page 105 – 107, Ms Franklin’s Submissions received by Centrelink on 14 June 2018.
In March 2019 Dr Craig reported that Ms Franklin:[33]
(a)was diagnosed with Bilateral SIJ Incompetence in January 2018 and it was expected to last for more than 24 months;[34] and
(b)was being treated with PRP (i.e., platelet-rich plasma injections) and that exercise therapy was planned.
[33]Exhibit 1, T Documents, T16, page 153, Centrelink Medical Certificate by Dr Mark Craig dated 21 March 2019.
[34]Exhibit 1, T Documents, T16, page 153, Centrelink Medical Certificate by Dr Mark Craig dated 21 March 2019.
In July 2019 Dr Craig reported that Ms Franklin’s SIJ pain precludes her from sitting for more than 5 minutes at a time.[35]
[35] Exhibit 1, T Documents, T25, page 212, Report of Dr Craig dated 25 July 2019.
On 26 November 2019 Dr Mardi Vory, General Practitioner, reported that:[36]
[Ms Franklin’s] pain is immediate on sitting in her lower lumbar and sacral spine and sacroiliac joints and thighs. She must continuously move to reduce the pain. She is unable to remain seated and still at all
[36]Exhibit 1, Supplementary T Documents, ST1, page 2, Pro-forma report completed by Dr Mardi Vory (GP) on 26 November 2019.
Thoracic Outlet Syndrome
In May 2018 Dr Mark Ray, Vascular and Endovascular Surgeon, reported that:[37]
(a)an ultrasound thoracic outlet study was positive for thoracic outlet syndrome; and
(b)he has talked to Ms Franklin about the benefits of a rib resection but he suggested that they manage things conservatively for now.
[37] Exhibit 1, T Documents, T21, page 155, Report of Dr Ray dated 24 May 2018.
In June 2018 Ms Franklin told Centrelink that she:[38]
(a)has suspected thoracic outlet syndrome which is being investigated;
(b)is due to see a specialist;
(c)has restricted use of her arm and severe pain and loss of muscle strength; and
(d)is unable to lift bags or hold anything heavy.
[38] Exhibit 1, T Documents, T11, page 105 – 107, Ms Franklins submissions dated 11 June 2018.
In August 2018 Dr Craig reported that Ms Franklin was diagnosed with Thoracic Outlet Syndrome in June 2018 and that it is expected to continue for more than 24 months.[39]
[39]Exhibit 1, Supplementary T Documents, ST7, page 191, Centrelink Medical Certificate by Dr Mark Craig dated 30 August 2018.
In March 2019 Dr Craig reported that Ms Franklin:[40]
(a)had left AC joint instability which was causing left shoulder pain; and
(b)was being treated with PRP and that exercise therapy was planned.
[40]Exhibit 1, T Documents, T16, page 153, Centrelink Medical Certificate by Dr Mark Craig dated 21 March 2019.
Depression/Anxiety
In November 2014 Dr Keogh reported that Ms Franklin was suffering from temporary anxiety and depression which was causing a depressed and anxious mood, decreased motivation and tiredness.[41]
[41] Exhibit 1, T Documents, T6, page 63, Medical certificate of Dr Keogh dated 27 November 2014.
In May 2018 Dr Keogh reported that Ms Franklin:[42]
(a)had major depressive disorder;
(b)was suffering from depressed mood, anhedonia and poor concentration; and
(c)was being treated with anti-depressants and had been referred to a psychiatrist.
[42] Exhibit 1, T Documents, T9, page 101, Medical certificate of Dr Keogh dated 21 May 2018.
Conclusion on Impairments
The Secretary accepts that Ms Franklin suffers from impairment for the purposes of section 94(1)(a) at the Qualification Period.[43]
[43]Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 31 January 2020, page 3 para [16].
In light of the above medical evidence the Tribunal finds that during the Qualification Period, Ms Franklin suffered from FAP Impairment, Jaw Tumour Impairment, Chronic Back Pain Impairment, Sacroiliac Joint Pain Impairment, Thoracic Outlet Syndrome Impairment and a Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the shoulder pain, the evidence available indicates that it was diagnosed during the Qualification Period and that investigations may be ongoing. As a result, the Tribunal is unable to assign an Impairment Rating for these conditions.
DO MS FRANKLIN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[44] They are function based[45] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[46]
[44] Determination, ss 4(2) and 5(2)(a).
[45] Determination, ss 5(2)(b) and (c).
[46] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[47]
(a)Ms Franklin’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.
[47] Determination, see s 6(3).
Ms Franklin’s condition/s can only be ‘permanent’ for the purposes of the Determination if the following conditions are satisfied:[48]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[48] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[49] the following must be considered:[50]
(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.
[49] For the purposes of ss 6(4)(a) and (b) of the Determination.
[50] Determination, see s 6(5).
A condition is fully stabilised[51] if:[52]
(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.
[51] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[52] Determination, see s 6(6).
For the purposes of the definition of fully stabilised, reasonable treatment is treatment that:[53]
(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.
[53] Determination, s 6(7).
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, Ms Franklin’s medical history, in relation to the conditions causing the Impairments, must be considered.[54]
[54] Determination, see s 6(2).
IS MS FRANKLIN’S FAP IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence indicates that Ms Franklin’s FAP Impairment was permanent and that an Impairment Rating can be assigned. This is not disputed by the Secretary.[55]
[55] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, pages 10 – 11, paragraph [60]
Using the Impairment Tables
The level of impact of Ms Franklin’s Impairment has to be assessed against the descriptors[56] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed ‘Points’ corresponding to a descriptor).[57]
[56] Determination, see ss 3 and 5(3).
[57] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[58]
[58] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[59]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[59] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[60]
(a)symptoms reported by Ms Franklin in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Franklin’s local community.
[60] Determination, see s 8.
Which Tables are appropriate are determined by:[61]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[61] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[62]
[62] Determination, see s 10(3).
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.[63]
[63] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[64]
[64] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[65]
[65] Determination, see s 11(5).
The medical evidence supports a finding that Ms Franklin’s Chronic Constipation Impairment is permanent and an Impairment Rating can be assigned. This is accepted by the Secretary.[66]
[66]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 September 2017, para [84].
Relevant Impairment Table and Impairment Rating
The relevant tables are Table 10 of the Determination, which deals with digestive and reproductive function, and Table 13 which deals with continence function.
Rating under Table 10
The Introduction to Table 10 provides that:
·Table 10 is to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.
·Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.
·Reproductive system conditions may include gynaecological diseases (e.g. severe and intractable endometriosis, ovarian cancer) and conditions of the male reproductive system (e.g. testicular cancer).
·Table 13 (Continence Function) is to be used for a person who requires continence and ostomy care (that is, a person with an ileostomy or colostomy).
·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 (such as a gastroenterologist, a gynaecologist, an urologist or an oncologist) confirming diagnosis of a digestive or reproductive system condition;
oresults of investigations (such as X-Rays or other imagery, endoscopy or colonoscopy).
·Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.
·Personal care needs associated with digestive conditions include, but are not limited to, the need to take medications when symptoms occur, care of special feeding equipment (e.g. Percutaneous Endoscopic Gastrostomy (PEG) button or special feeding tube), special diets or feeding solutions, strategies to relieve pain, additional toileting and personal hygiene needs.
·Symptoms associated with reproductive system conditions include, but are not limited to, pain, fatigue, menorrhagia or dysmenorrhea.
·Personal care needs associated with reproductive system conditions include, but are not limited to, strategies to relieve pain or more frequent menstrual care.
To assign an impairment rating of 5 points the corroborative evidence would need to show that at least one of the following applies:[67]
(a)[Ms Franklin’s] attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b)[Ms Franklin] is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
[67] Determination, Table 10.
To assign an impairment rating of 10 points the corroborative evidence would need to show that at least two of the following applies:[68]
(a)[Ms Franklin’s] attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b)[Ms Franklin] is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c)[Ms Franklin] is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
[68] Determination, Table 10.
Rating under Table 13
The Introduction to Table 13 provides that:
·Table 13 is to be used where the person has a permanent condition resulting in functional impairment related to incontinence of the bladder or bowel.
·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, particularly in cases of moderate or severe incontinence, (e.g. urogynaecologist, gynaecologist, urologist, gastroenterologist) confirming diagnosis of conditions associated with incontinence (e.g. some gynaecological conditions, prostate enlargement or malignancy, gastrointestinal conditions, incontinence resulting from paraplegia, spina bifida, neurodegenerative conditions or severe intellectual disability);
oassessments and reports from practitioners specialising in the treatment and management of incontinence (e.g. urologists, urogynaecologists, continence nurse advisors, continence physiotherapists).
·To avoid doubt, for descriptors in this Table relating to a person’s symptoms affecting co-workers, a descriptor can apply even if the person does not work (that is, where the descriptor is likely to apply if the person did work).
To assign an impairment rating of 5 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:[69]
(a)[Ms Franklin] has minor leakage from the bowel (e.g. enough faecal matter to soil underwear but not outer clothes) more than once a week but not every day;
(b)[Ms Franklin] has urgency or occasional (at least monthly) loss of control of bowel.
[69] Determination, Table 13.
To assign an impairment rating of 10 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:[70]
(a)[Ms Franklin] has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear and stain outer clothes if a continence pad is not worn) in most weeks; and
(b)in respect of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days.
[70] Determination, Table 13.
To assign an impairment rating of 20 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:[71]
(a)[Ms Franklin’s] condition may affect the comfort or attention of co-workers; or
(b)[Ms Franklin] has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or
(c)[Ms Franklin] has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly.
[71] Determination, Table 13.
Ms Franklin submits that an appropriate Impairment Rating under Table 13 is 5 points.
The Secretary also submits that an appropriate Impairment Rating under Table 13 is 5 points and relies on the following evidence:[72]
(a)Ms Franklin’s report to the JCA that she still experienced incontinence issues weekly, and uses continence pads as needed;[73]
(b)Ms Franklin’s written submissions that she considered that a 5 point rating was appropriate;[74]
(c)Ms Franklin’s evidence before the SSCSD hearing that:[75]
(i)she experiences frequent loose bowl motions and urgency;
(ii)she has occasional episodes of incontinence, maybe about once per month, when she will not make it to a toilet in time;
(iii)she does not use incontinence pads.
[72]Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 31 January 2020, page 11, paragraph [61].
[73] Exhibit 1, T Documents, T17, page 141, JCA Report dated 8 April 2019.
[74]Exhibit 1, T Documents, T16, page 130, Disability Support Pension Review – Karen Franklin: Review of conditions by function.
[75] Exhibit 1, T Documents, T2, page 9, paragraph [29]
Following Ms Franklin’s colonic surgery, Dr Jocelyn Keogh, General Practitioner, reported in 2014 that Ms Franklin was suffering from abdominal pain, flatulence, nausea, diarrhoea and rectal bleeding. Ms Franklin was being treated with analgesics, bulking agents, anti-emetics and physiotherapy.[76]
[76]Exhibit 1, T Documents, T4, page 61, Medical certificate of Dr Keogh dated 21 July 2014; T5, page 63, Medical certificate of Dr Keogh dated 28 August 2014
The Tribunal also notes that in June 2019 Dr Craig reported that Ms Franklin met the criteria for a mild functional impact for her bowel/bladder issues because: [77]
As a result of her total colectomy in 2013, she continues to experience significant stomach and bowel issues including and regular impact on her continence. With the increased pain and consequent increase in medications (Gabapentin) for relief, she has experienced regular episodes of bladder urgency I incontinence.
(emphasis added)
[77] Exhibit 1, T Documents, T17, page 171, Letter from Dr Mark Craig dated 13 June 2019.
Although Dr Craig’s report is after the Qualification Period it does confirm that Ms Franklin has continued to have incontinence issues since 2013 which has resulted in a mild impairment.
Ms Franklin relied on Dr Vory’s opinion that Ms Franklin should also be assigned an impairment rating also under Table 10 which relates to digestive and reproductive function.[78] The Secretary disputes that Table 10 is appropriate.
[78] Exhibit 1, Supplementary T Documents, ST1, pages 2 – 3.
Ms Franklin submits Table 10 should apply as well as Table 13 because she has significant nausea resulting from the FAP Impairment. Ms Franklin submits that a 5 point rating under Table 10 is appropriate because the nausea has at times caused her to faint.
Dr Craig reported in July 2019 that Ms Franklin has stomach issues. This report was written 10 months after the Qualification Period. Although Dr Craig’s report is after the Qualification Period it does confirm that Ms Franklin has continued to have stomach issues since 2013.
Little weight can be given to Dr Vory’s opinion because she was not Ms Franklin’s medical practitioner during the Qualification Period. At the hearing Dr Vory confirmed that her opinion was based solely on the information provided by Ms Franklin because at that time she did not have Dr Craig’s clinical notes at the time of preparing her report. Dr Vory also acknowledge that she was not in a position to comment on Ms Franklin’s condition at the time she lodged her claim. Dr Vory’s evidence would be relevant to any subsequent DSP application.
The Tribunal does not doubt that Ms Franklin suffered from digestive issues and nausea during the Qualification Period as a result of the FAP Impairment. Dr Keogh made reference to this in her 2014 report.
In the circumstances the Tribunal accepts that Ms Franklin has nausea and that it was causing her to suffer a mild impairment.
Considering the evidence that is relevant to the Qualification Period, the Tribunal finds that an appropriate impairment rating for Ms Franklin’s FAP Impairment is 5 points under Table 10 and 5 points under Table 13.
IS MS FRANKLIN’S CHRONIC BACK PAIN IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
It is not in dispute that the medical evidence confirms that Ms Franklin’s chronic back pain was fully diagnosed, treated and stabilised and that an Impairment Rating can be assigned.[79]
[79]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 31 January 2020, page 7, paragraph [42].
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with spinal function is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·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 purpose 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 spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a 5 point rating the corroborating evidence would be to show that
Ms Franklin has some difficulty in:[80]
(a)activities overhead height (e.g. activities requiring the person to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
[80] Determination, Table 4.
To obtain a 10 point rating the corroborating evidence would need to show that
Ms Franklin:[81]
(1) is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) [she] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) [she] has difficulty moving [her] head to look in all directions (e.g. turning [her] head to look over [her] shoulder); or
(c) [she] is unable to bend forward to pick up a light object placed at knee height; or
(d) [she] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
[81] Determination, Table 4.
To obtain a 20 point rating the corroborating evidence would need to show that
Ms Franklin:[82]
(1) …is unable to:
(a)perform any overhead activities; or
(b)turn [her] head, or bend [her] neck, without moving [her] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
[82] Determination, Table 4.
The Secretary submitted that the evidence indicates that Ms Franklin’s Chronic Back Pain Impairment is having a moderate impact on her ability to function and that therefore a 10 point Impairment Rating under Table 4 is appropriate.[83] The Secretary relies on the following in support of its contention:
(a)During the first JCA Ms Franklin was observed to be able to sit for 45 minutes and to mobilise without any difficulty;[84]
(b)There was no reference to Ms Franklin being unable to lift or bend in medical certificate dated 8 February 2018;[85]
(c)Ms Franklin was able to sit in a car for up to 30 minutes;
(d)Ms Franklin was unable to bend forward to pick up a light object placed at knee height.
[83]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 31 January 2020, pages 7–8, paragraph [44].
[84] Exhibit 1, T Documents, T13, page 116, JCA Report dated 24 August 2018.
[85]Exhibit 1, T Documents, T7, page 67, Centrelink Medical Certificate dated 8 February 2018; Exhibit 1, T Documents, T13, page 116, JCA Report dated 24 August 2018.
In submissions lodged by Ms Franklin she also considered that a 10 point rating under Table 4 was appropriate.[86] Ms Franklin submitted:[87]
…My back is the primary condition for which I am applying. The chronic back pain referred to was consistent from the date of my application and is the basis of what treating doctors have reported on. The back pain has been an issue following a motor vehicle accident 10 years prior and has increased over the previous years, declining to a stage where coming off work and then considering the disability pension was the only viable option.
Job capacity assessment: The assessor indicates there were minimal signs of pain displayed. At no point was I given a clear indication what the purpose of the interview was, other than to gain further information about my medical conditions. The assessor did not conduct any tests or activities which would give an indication of my abilities, particularly suited to work options I could do. Considering that I have attended job capacity assessments as requested by my employer and had significant restrictions imposed, this conflicts with the Centrelink assessor. Furthermore it does not take into account the fact attributes such as: I was on narcotic medication (Oxcontin); I do not like to put people out or embarrass myself in situations like this; in attending pain management classes, we were told that things like wriggling, sighing, moving, etc, are all signs of attention seeking; standing, wriggling, pacing or the likes would not necessarily alleviate the pain and the meeting was necessary to attend; and as a Registered Nurse, I am used to being stoic. Hence I am conscious of not displaying this. It also fails to note issues such as the pain being visible to those who know me despite not saying anything, such as looking pale, faint and gaunt. To an assessor, these signs would likely go unnoticed.
Medical Certificate 25/07/2019: Dr Mark Craig provided a medical certificate on this date stating I could not sit for 5 minutes. It seems it is the assumption of the Department that this certificate was relating to the current time and therefore did not relate to the qualifying period rather than factoring in that he was completing this as a request for further supporting documentation in regards to my DSP application and should therefore be considered in relation to the qualification period (11 June 2018-10 September 2018).
Dr Mardi Vory: the supporting documentation indicates the view that the report completed by Dr Vory did not specify what dates this related to. Given the questions and information provided in the form, it would be reasonable to conclude the information in the report related to the qualification period. It should be noted that I was referred to this doctor by Dr Craig’s clinic after he was diagnosed with terminal cancer and unable to continue practicing. Any of the submitted documentation completed by Dr Vory relates to the period of 13 weeks from when my application was submitted as she was presented with all the documentation I had supplied to Centrelink; her medical opinion was formed on the basis of medical notes and information provided by Dr Craig’s clinic in conjunction with obtaining medical imaging and reports from other treating doctors.
Dr Mark Craig: it should be noted that Dr Craig passed away on 1 January 2020. He played an important role in trying to further diagnose and treat potential causes of pain but was of the opinion that my back pain was unlikely to improve significantly. Furthermore he was of the opinion that my pain met the criteria to qualify for the disability pension.
Impairment Table standards: After a discussion with Legal Aid where the criteria was further explained, it became apparent that I would meet the criteria for 20 points due to not being able to sit for more than 10 minutes without experiencing significant discomfort. As mentioned in point 2, I generally try to be stoic and I downplay issues to avoid attention or embarrassment. In considering the criteria relating to the spine, I now understand and believe the 20 points is warranted given the impact of my back pain. This is demonstrated in many ways; examples include: inability to drive far without experiencing severe pain and resulting in often allowing others to drive me as I am not safe; having to take time out during work shifts to try and do stretches and get relief due to the pain; unable to sit and having to pace during meetings and attendance at social functions; avoiding social activities to avoid exacerbating pain or feeling embarrassed. These are only a few examples that demonstrate my ability to sit for any great period of time. This then places extreme restrictions on work I can do when I cannot sit at a desk but equally suffer pain from standing.
[86]Exhibit 1, T16, page 128, Disability Support Pension review – Karen Franklin: Review of conditions by function.
[87] Exhibit 3, Written submissions of Ms Franklin dated 10 May 2020.
At the hearing Ms Franklin submitted that 20 points was an appropriate Impairment Rating under Table 4 taking both her back and SIJ into account. Ms Franklin said she originally submitted 10 points was appropriate because she did not understand how the Impairment Tables worked.
Although Dr Vory reported that Ms Franklin is unable to remain seated, she was not Ms Franklin’s medical practitioner during the Qualification Period (see paragraphs [14] and [33] above).
Dr Craig’s report is dated one year after the Qualification Period and refers to the impact the SIJ condition was having on her ability to sit.[88] Dr Craig did not refer to Ms Franklin’s back condition as having this impact.
[88] Exhibit 1, T Documents, T25, page 212, Letter from Dr Mark Craig dated 25 July 2019.
Ms Franklin acknowledged at the hearing that, during the Qualification Period, it took her 35-40 minutes by car to get to her general practitioner appointments. Her sister would drive her to those appointments. Ms Franklin’s sister, Elizabeth Franklin, also gave evidence at the hearing. Elizabeth Franklin told the Tribunal that her sister only spent that amount of time out of necessity to obtain medical treatment and that she suffered during those trips.
Based on the available evidence during the Qualification Period, and the fact that there is no corroborating evidence that Ms Franklin is unable to remain seated for at least 10 minutes, the Tribunal finds that an appropriate impairment rating for Ms Franklin’s Chronic Back Pain Impairment is 10 points under Table 4 and 0 points under Table 3.
IS MS FRANKLIN’S SACROILIAC JOINT PAIN IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary submits that Ms Franklin’s Sacroiliac joint pain impairment was not fully diagnosed, fully treated and fully stabilised during the qualification period because:[89]
(a)it was still under investigation;
(b)diagnosis was not made until after the Qualification Period; and
(c)there is limited corroborating evidence on the treatment Ms Franklin received prior to or during the Qualification Period.
[89]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 31 January 2020, page 9, paragraphs [51] – [52].
The Tribunal notes that Dr Craig reported that Ms Franklin’s SIJ condition was diagnosed in January 2018. Therefore the Tribunal finds that the condition was fully diagnosed prior to the Qualification Period. The evidence available indicates that Ms Franklin received PRP and remedial massage therapy treatment which commenced in June 2018, which is the beginning of the Qualification Period. Unfortunately, Dr Craig died earlier this year and was the only medical practitioner that could have informed the Tribunal about Ms Franklin’s SIJ Impairment during the Qualification Period.
Ms Symes, Remedial Massage Therapist, was called by Ms Franklin to give evidence at the hearing. Ms Symes told the Tribunal that:[90]
(a)Dr Craig referred Ms Franklin to her in June 2018 for massage therapy in relation to her SIJ;
(b)she was working at Dr Craig’s Back Doctor Clinic at the time Ms Franklin was referred to her;
(c)Ms Franklin presented to her with lower back pain especially in the SIJ area;
(d)the massage treatment was provided to help Ms Franklin manage her pain;
(e)she has never seen Ms Franklin not in pain;
(f)the massage therapy only assists to reduce Ms Franklin’s pain for a short period; and
(g)it was not known at the commencement of treatment to what extent the massage therapy would improve Ms Franklin’s condition.
[90] Transcript, 1 June 2020, pages 35–40.
In these circumstances the Tribunal finds that Ms Franklin’s SIJ Impairment cannot be considered permanent during the Qualification Period and as a result no Impairment Rating can be assigned.
Even if the SIJ Impairment was permanent, the Tribunal would still find that an Impairment Rating of 10 points under Table 4 was appropriate. The only medical evidence which corroborates Ms Franklin’s evidence that her SIJ caused her to be unable to sit for more than 5 minutes is Dr Craig’s letter of July 2019. This evidence is 10 months after the Qualification Period. There is no corroborating evidence that 20 points would be an appropriate Impairment Rating under Table 4.
IS MS FRANKLIN’S THORACIC OUTLET SYNDROME IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
It is not in dispute that the medical evidence confirms that Ms Franklin’s thoracic outlet syndrome impairment was fully diagnosed, treated and stabilised and that an Impairment Rating can be assigned.[91]
[91] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 9, paragraph [55].
Relevant Impairment Table and Impairment Rating
Table 2 of the Determination, which deals with Upper Limb Function is the relevant Table.
The Introduction to Table 2 of the Determination provides:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
For the purposes of this Table upper limbs extend from the shoulder to the fingers.
To assign an impairment rating of 5 points the corroborative evidence would need to show that most of the following, relevantly, apply:
1[Ms Franklin] …has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
To assign an impairment rating of 10 points the corroborative evidence would need to show that most of the following, relevantly, apply:
1[Ms Franklin] …. has difficulty with most of the following:
(a)picking up a litre carton fill of liquid;
(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons and tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid of a soft drink bottle.
The Secretary submitted that the evidence indicates that Ms Franklin’s Thoracic Outlet Syndrome Impairment is having a mild impact on her ability to function and that therefore a 5 point Impairment Rating is appropriate under Table 2.[92] The Secretary relied on the following evidence: –
[92] Transcript, 13 May 2020, page 5, lines 1–4.
(a)Dr Mark Ray details the following symptoms in relation to a possible diagnosis of thoracic outlet syndrome: ‘1. A cold burning feeling down the forearm and particularly in the middle of the wrist and extending into the hand. 2. The whole hand is affected, particularly the thumb’[93]
[93]Exhibit 1, T Documents, T21, page 156, Letter from Dr Mark Ray to Dr Leela Arthur dated 1 March 2018.
(b)Ms Franklin gave evidence at the SSCSD hearing that:[94]
·both hands are affected but the left more than the right;
·she is right hand dominant;
·she said she can hold a pen and write but sometimes ls unable to use a computer or her phone;
·she can pick up a one litre container of milk with her right hand but not a two litre container;
·she is able to do up buttons and shoelaces but with some difficulty;
·she frequently drops things;
·her grip strength is reduced;
·she is no longer able to do cross-stitch embroidery.
[94] Exhibit 1, T Documents, T2, page 10, paragraph [33].
Considering the evidence that is relevant to the Qualification Period, the Tribunal finds that an appropriate impairment rating for Ms Franklin’s Thoracic Outlet Syndrome Impairment is 5 points under Table 2.
IS MS FRANKLIN’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
There is no evidence of a diagnosis from a psychiatrist or psychologist before the Tribunal. Table 5 of the Determination requires:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist
As a result, no impairment rating can be assigned to Ms Franklin’s mental health impairment. Ms Franklin did not dispute this and told the Tribunal she was not aware of the specific requirements of Table 5 at the time she lodged her DSP claim.
ARE MS FRANKLIN’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).
The Tribunal has found that the total Impairment Rating for Ms Franklin’s ‘permanent’ impairments was 25 points, therefore Ms Franklin satisfies section 94(1)(b) of the Act.
DID MS FRANKLIN HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))
Ms Franklin’s permanent impairments attract an impairment rating of 25 points under the Impairment Tables in the Qualification Period and therefore, it is necessary to consider whether she had a ‘continuing inability to work’ (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(1)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.
Note: For work see subsection (5).
(2)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3C) A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
Because the Tribunal did not find that Ms Franklin’s Impairments have attracted 20 points under one single Impairment Table (i.e. it is a ‘severe impairment’ as defined in s 94(3B)), she is under an obligation to have completed a POS.
The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8 of the POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Ms Franklin must have actively participated in a POS for at least 18 months between June 2015 and June 2018. A POS is an obligatory legislative requirement.
Centrelink records confirm that Ms Franklin has not participated in a POS.[95]
[95] Exhibit 1, T Documents, T28, page 248, Program of Support Summary.
As a result, the Tribunal finds that during the Qualification Period Ms Franklin did not satisfy the requirements in section 94(2) of the Act and therefore, did not fulfil the requirement in section 94(1)(c) of the Act.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 119 (one hundred and nineteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.......................[SGD]..........................
Associate
Dated: 9 July 2020
Date(s) of hearing: 13 May 2020 and 2 June 2020 Date final submissions received: 25 May 2020 Applicant: In person Solicitors for the Respondent: Services Australia, C Murphy
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