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

[2017] AATA 1735

Gordon and Secretary, Department of Social Services (Social services second review) [2017] AATA 1735 (12 October 2017)

Division:GENERAL DIVISION

File Number:           2015/4598

Re:Mary Gordon

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Miss E A Shanahan, Member

Date:12 October 2017

Place:Melbourne

The Tribunal affirms the decision under review. In the period under review Mrs Gordon did not qualify for the disability support pension.

.......................[sgd].................................................

Miss E A Shanahan, Member

SOCIAL SECURITY – pensions benefits allowances – disability support pension claim – back work-related injury  – motor vehicle accident – diabetes mellitus – chronic pain syndrome – multiple operations – multiple complications – conditions not fully diagnosed, treated and stabilised – impairment rating of 15 points – decision affirmed

Legislation

Social Security Act 1991 (the Act)
Social Security (Administration) Act 1999 (the Administration Act)
Social Security (Tables for the Assessment of Work Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination)

Cases

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 8500

REASONS FOR DECISION

Miss E A Shanahan, Member

12 October 2017

1. This matter was remitted to the Administrative Appeals Tribunal, General Division, by Justice Mortimer of the Federal Court. By consent, the parties identified an error of law in the decision of this Tribunal dated 4 November 2016. Mortimer J accepted that there was an error of law made by the Tribunal on that occasion resulting from a misinterpretation of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables), in particular the criteria for an impairment rating of 20 points. This required only one of four descriptors to be satisfied to attract such a rating, not as stated in the decision all four of the descriptors.

2. The matter was reheard de novo on 22 August 2017. Mrs Gordon was represented by Mr Denny Meadows, assisted by Mr John Berrall, both of whom are volunteers with Social Security Rights Victoria. Ms Kellie Latta of Sparke Helmore appeared for the Secretary, Department of Social Services (the Secretary). Mrs Gordon was previously represented by Victoria Legal Aid, but this representation was withdrawn before the hearing.

3. The Tribunal was provided with the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T-Documents and Supplementary T‑documents). The Tribunal had access to reports from various hospitals regarding Mrs Gordon’s treatment outside the qualification period. Mrs Gordon gave evidence in person and her general practitioner, Dr James Sutherland, by telephone.

   BACKGROUND TO THE APPLICATION

4. Mrs Gordon has a lengthy and complicated medical history, commencing in 2003 when she suffered a work related injury to her lumbar spine and a motor vehicle accident (MVA) in 2007 leading to further physical injury. In 2015, as a result of an intra-articular local anaesthetic injection into the knee injured in the motor vehicle accident, she developed clostridium perfringens infection in her right thigh with tissue necrosis, requiring extensive treatment over a period of months. At the time of the MVA Mrs Gordon sustained cervical spinal injuries and an acute brain syndrome. She has since developed a chronic pain syndrome and subsequently exhibited symptoms of a psychiatric disorder.

5. While her WorkCover claim was settled in 2012, she continues to receive assistance from the Transport Accident Commission (TAC) in terms of household support and payment of medical costs. 

6. Mrs Gordon lodged her claim for disability support pension (DSP) on 28 January 2015. This was supported by a medical report from her general practitioner Dr Sutherland. In his report, Dr Sutherland listed the medical conditions from which Mrs Gordon suffered as being:

   ·diabetes;

   ·depression;

   ·chronic back pain;

   ·head injury;

   ·neck injury;

   ·shoulder;

   ·knee injuries secondary to a motor vehicle accident; and

   ·suicidal ideation.

7. A job capacity assessment (JCA) was performed on 9 April 2015, the assessors being an occupational therapist and a psychologist. They determined that Mrs Gordon’s lumbar spinal condition was fully diagnosed, treated, and stabilised, as was her left shoulder following three surgical interventions. The diabetes was not considered to cause any incapacity, the condition being well controlled and attracting no points on the impairment rating. Mrs Gordon’s psychiatric disorder, if present, was considered not fully diagnosed, treated, and stabilised, and it was noted that she had not been seen by either a psychiatrist or a clinical psychologist as required by the Act.

8. Prior to this JCA or immediately after, Mrs Gordon provided further medical reports in the form of an opinion from Mr Steven Leitl, an orthopaedic surgeon, and the report of an MRI examination of her spine. Mr Leitl saw Mrs Gordon in 2010 in relation to her physical injuries and made a diagnosis of a chronic pain syndrome resulting in depression. Her pain had required treatment with opioids, orally and in the patch form, spinal joint injections and Mr Leitl was concerned by Mrs Gordon’s high level of narcotic medication. He recommended a pain management program, following which all home help could be ceased. At the time of this consultation Mr Leitl regarded Mrs Gordon as having no present capacity for suitable employment. 

9. The MRI of Mrs Gordon’s spine, the results of which were provided by Mr Peter Mangos who had presumably ordered the investigation, revealed no abnormality at T12/L1, L2 or L3 but clumping of the lumbosacral nerve roots within the spinal canal below the L3 level was present. It also revealed some minor disc bulging at L4/5 and L5/S1 but there was no nerve root compression or displacement. This report was interpreted as showing arachnoiditis, an inflammation of the covering of the spinal cord and nerves below the end of the spinal cord at L1. It was suggested that this was possibly related to epidural injections of long acting local anaesthetic and steroids that had been undertaken in April 2010 (T11, page 95).

10. On 11 May 2015, an authorised review officer (ARO) affirmed the primary determination with respect to the 15 points impairment rating allotted and commented on the absence of any program of support having been undertaken by Mrs Gordon.

11. Mrs Gordon lodged an application for review with the Administrative Appeals Tribunal, Social Services and Child Support Division (AAT, 1^st Tier). On 4 September 2015 the AAT 1^st Tier affirmed the impairment rating of 15 points and as a result Mrs Gordon did not qualify for the DSP as she did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).

12. The subsequent application to the Administrative Appeals Tribunal, General Division and the decision of 4 November 2016, has already been referred to.

13. In 2015 Mrs Gordon underwent an intra-articular injection and aspiration of her right knee, injured years before in the MVA. This was intended to be both a diagnostic procedure and a therapeutic measure. Regrettably, this site became infected, and Mrs Gordon developed septicaemia and a pyogenic arthritis, leading to extensive gangrene of her right thigh. This necessitated hyperbaric oxygen treatment and subsequently extensive skin grafting of the right thigh and groin. These catastrophic events occurred after the legislatively defined qualification period.

14. In the intervening years Mrs Gordon has received considerable assistance from both the Work Cover authority and the TAC in the form of household aids and household help, such as gardening and cleaning. She did undertake a return to work program in the late 2000’s but only coped for two days before she attempted to return to aged care and in a further trial return to work in the area aged care as an assessor, she was unable to continue after two weeks.

15. Mrs Gordon has experienced some difficulties with control of her insulin dependent diabetes. As she was requiring injections of insulin four times a day, she was converted to an implanted insulin pump but for reasons that are not apparent, to either the Tribunal or on his evidence Dr Sutherland, this has been abandoned. Mrs Gordon has resumed giving herself injections and doing her own testing and it would appear that her diabetes is now relatively stable.

16. While Mrs Gordon has been assessed for an acute brain injury, said to have been sustained in the MVA, and the Secretary has expressed a willingness to accept a 5 point impairment rating under Table 7, the only supportive evidence for such a diagnosis is that of the neuropsychologist, Ms Louise Boin. Ms Boin provided an opinion dated 25 September 2013 accepting Mrs Gordon’s evidence that following the motor vehicle accident she had been unconscious for a period of 30 to 60 minutes and had then experienced post traumatic amnesia for several hours. Ms Boin was apparently unaware of the fact that Mrs Gordon was taken to the Ballarat Hospital Emergency Department, was observed for a period of at least four hours and discharged home on the same day without any treatment. Ms Boin assessed Mrs Gordon as showing some evidence of what was termed average intellectual abilities, with rapid speed cognitive processing but only average sequencing abilities, verbal abilities and visuospatial abilities.

17. Ms Boin concluded that Mrs Gordon had suffered a mild acute brain injury. She was uncertain of the reason for the pattern of neuropsychological function, in the above or at average speed of most processing and Mrs Gordon’s complaint of worsening cognitive abilities. It is to be noted that Ms Boin was not aware of Mrs Gordon’s high intake of opioids from 2003 onwards. She had been told that Mrs Gordon was on several medications for diabetes, thyroid, nerve pain and Vitamin D deficiency.

18. In March 2017, Mrs Gordon underwent cervical spinal fusion involving the fifth to seventh cervical vertebrae including discectomy and instrumentation with titanium disc replacements. This procedure was funded by the TAC and performed by her orthopaedic surgeon Mr David de la Harpe. The fusion has alleviated her cervical spinal pain but has reduced the range of movement of her cervical spine.

    ORAL EVIDENCE BEFORE THE TRIBUNAL

19. Mrs Gordon confirmed the diagnosis of her medical conditions. She said she had suffered from low back pain since 2003 and understood this to be due to L4/5, S1 sacroiliac joint injuries. She described the pain as being constant and requiring regular use of OxyContin and Duragesic patches. She stated she had a sitting time of 15 minutes, never more or less, couldn’t drive a manual car because of pain in her left foot and always sits in a hard backed chair. While she said she could do things above head height, this caused spinal pain. Since her original application and failure to qualify for the DSP, Mrs Gordon has undergone further surgery, including the neck spinal fusion, arthroscopy of her knee and there is planned further surgical intervention in her lumbar spine. She continues to hope that she will be able to undergo lumbar micro-discectomy when she has saved sufficient money to pay for the surgery.

20. On direct questioning Mrs Gordon agreed that she was able to do her shopping at the supermarket but she does it slowly and is always accompanied by her husband. She is able to drive an automatic car and she can stand for 10 to 15 minutes, the same as her sitting time, following which she has to get up and move around. She has had a limp since 2003. She does use public transport, but rarely, probably a couple of times a year. Mrs Gordon travels by train from Ballarat to Melbourne to visit her daughter and if she has any problems on the train she asks others to assist. 

21. Over a period of many years both Work Cover and thee TAC have provided various aids such as elevating her washing machine, providing a Dyson vacuum cleaner and feather dusters and home help. This was provided initially by Work Cover and is now funded by the TAC. She has intermittently used a walking stick since 2007 and crutches since 2015. Changes have been made to raise the height of the bathroom and kitchen benches.

22. Mrs Gordon still attends Mr de la Harpe on a regular basis and he has recommended further lumbar spinal treatment in the form of spinal steroid and Marcaine injections and with a view to this treatment, she is to have imaging performed in Ballarat and will then be admitted to the Epworth Hospital for the procedure.

23. In her relation to her psychiatric status, Mrs Gordon indicated that she was diagnosed with a borderline personality disorder in 2014. Associated with this was suicidal ideation and depression, which she attributed to the severity of her pain. She agreed with Mr Meadows that her mental condition impacted on any ability she might have for work.

24. In cross-examination by Ms Latta, Mrs Gordon outlined her current treatment and medication. She is taking Endone; Duragesic or Norgesic patches are used; she has been taking Lyrica for many years; and remains on Endep and Epilim.

25. Ms Latta carefully asked a series of questions based on the descriptors for a 20 point impairment rating as delineated in Table 4 of the Impairment Tables relating to spinal function. These descriptors are:

    (1)The person is unable to:

    (a)perform any overhead activities; or

    (b)turn their head, or bend their neck, without moving their 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.

26. Mrs Gordon answered quite clearly and without hesitation that she could perform all of those activities at the time she applied for the DSP and within the 13 weeks thereafter but that they had all resulted in pain and therefore she understandably avoided doing such activities. She could turn her head and her neck when driving her car but can no longer turn as far as she did since she underwent spinal fusion in March of this year. She continues to drive her car and has no driving restrictions imposed on her licence other than those relating to her diabetes.

27. Mrs Gordon confirmed she had never seen a psychiatrist or a clinical psychologist, for either diagnostic or treatment purposes, relating to her mental disorder. She also agreed that the effects of her head injuries suffered in the motor vehicle accident in 2007 had been assessed as having low trauma effect.

28. Mrs Gordon expressed her desire to return to work, particularly in the field of aged care where she would like to be employed as an assessor. However, she is unable to predict how she will feel on any day and doubts an employer would take the risk of offering her a position given this unreliability.

29. The Tribunal asked Mrs Gordon if she had attended any pain management clinic. She said that she had undergone such a course in Ballarat in 2010 and at the Epworth Hospital in 2012. It is noted that she had been on a waiting list for a pain management clinic slot in late 2014. Currently her general practitioner provides all her pain management and drug prescriptions.

    Dr James Sutherland

30. Dr Sutherland has been treating Mrs Gordon since 2010. He had completed the treating doctor’s reports in support of her application for the DSP. In his evidence before the Tribunal he said he believed that Mrs Gordon’s cervical and lumbar spinal conditions impacted on her ability to perform shopping and household duties. He had noted that she always stood while attending consultations with himself. His notes did not make any mention of overhead activities but he was of the belief that she could not do these. Similarly, his notes were silent on turning and flexing of the head and neck and on questioning from the Tribunal he agreed that he had never quantified the range of movement of either the cervical spine or lumbo-sacral spine by measuring or assessing Mrs Gordon’s range of movement at these sites.

31. In relation to her mental health status Dr Sutherland was uncertain of the qualifications of persons who had assessed Mrs Gordon, he having referred her to the Ballarat Psychiatric Service. He had never seen a report from a psychiatrist. He understood that the only assessment performed had been by a psychiatric nurse. He agreed that Mrs Gordon’s psychiatric status was not fully treated and stabilised.

32. Dr Sutherland had observed Mrs Gordon walking and he described her ability to walk as being okay, and that she could ambulate quite reasonably although all physical activity resulted in pain. He did not think she could return to work in any capacity or retrain as a result of her physical conditions. 

33. Ms Latta went through Dr Sutherland’s clinical records and reports in some detail and Dr Sutherland agreed that there was nothing in his records or reports that suggested Mrs Gordon could not perform overhead activities, nor had he addressed her incapacity in 2015 although, in early 2016 he had assessed her lumbosacral spine impairment as attracting a 10 point rating. He agreed that at that time Mrs Gordon could certainly move her neck. Dr Sutherland also confirmed that any impact arising from the diabetes was at the most minor as there was not impact on the activities of daily living and certainly in the first three to four months of 2015, the diabetes did not contribute any incapacity. 

34. Dr Sutherland did not know why the implanted infusion pump was no longer being used and he thought that it was Mrs Gordon’s decision to cease that means of insulin delivery. He did confirm that blood sugar control was now quite acceptable and that Mrs Gordon had never suffered a hypoglycaemic episode (hypo).

    DOCUMENTARY EVIDENCE

35. The documentary evidence that is relevant to this matter has been summarised under BACKGROUND TO THE APPLICATION. The documentation is voluminous but not all of it is relevant to the remittal from the Federal Court, the Court having found an error of law in the previous decision dated 4 November 2016, identified as [2016] AATA 874.

    LEGISLATION

36. The relevant legislation is contained in s 94(1)(a), (b) and (c) of the Act which states:

    94  Qualification for disability support pension

    (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;

    (ii)     the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and  ...

37. Also relevant is provision for a severe impairment whereby the need for a Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) is not required. Section 94(3B) provides:

    (3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

    Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.

    Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.

    Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.

1. The Social Security (Administration) Act 1999 (the Administration Act) Schedule 2, Clauses 3 and 4 define the relevant period for consideration of the applicant’s qualification for DSP.

   Schedule 2—Rules for working out start day

   ...

   (3)If:

   (a)2 or more clauses of Part 3 of this Schedule apply to the working out of a person’s start day in relation to a social security payment; and

   (b)the person’s start day under both or all of those clauses is the same day;

   that day is the person’s start day under Part 3 in relation to the social security payment.

   (4)If:

   (a)but for this subclause, a person would have a start day under Part 2 of this Schedule in relation to a concession card and would also have a start day under Part 3 of this Schedule in relation to the same card; and

   (b)the start day under Part 3 would be earlier than the start day under Part 2;

   the day worked out under Part 3 is the person’s start day in relation to the concession card.

2. Of particular relevance in this matter is the Impairment Table No 4, relating to spinal function and in particular the requirements for an impairment rating of 20 points which states:

   There is a severe functional impact on activities involving spinal function.

   (1)The person is unable to:

   (a)perform any overhead activities; or

   (b)turn their head, or bend their neck, without moving their 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.

3. Also relevant the definition of a moderate functional impact the descriptors being for 10 impairment points:

   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

   (a)the person is unable to sustain overhead activities (e.g. accessing items over head ); or

   (b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

   (c)the person is unable to bend forward to pick up a light object placed at knee height; or

   (d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

   SUBMISSIONS

4. Written submissions were provided with Mrs Gordon’s Statement of Facts, Issues and Contentions. These were written by Mr Graham Wells of Social Security Rights Victoria. In summary the written contentions were that Mrs Gordon’s conditions had been assessed as qualifying for the DSP in 2010 but as she was then covered by Work Cover and seeking a permanent impairment payment (finalised in 2012), she was subject to a preclusion period. 

5. It was submitted that her diabetes, acute brain injury, mental health disorder, and right knee injury should attract an impairment rating as they contributed to her incapacity and were fully treated, stabilised, and diagnosed. It was contended that the JCA, despite having access to significant records, had failed to consider the relevance of Table 1 when multiple conditions contributed to a common functional impairment. In Mrs Gordon’s case this was said to be chronic pain.

6. In his oral submissions Mr Meadows addressed the various tables, in particular, Table 1. He submitted that the chronic pain Mrs Gordon suffered, her ever present need for help on public transport, and her inability to sustain any work commitment for three hours or more were such that she attracted a severe functional rating. In relation to Table 4, spinal function, it was argued that she was unable to perform bending to pick up items or to move her neck, these all being restricted by pain.

7. With respect to the continuing inability to work, Mr Meadows contended that Mr Leitl had in 2010 said Mrs Gordon was unable to work, as had Dr Sutherland in 2017 although earlier reports from Dr Sutherland had not been supportive of this contention.

8. Mr Meadows submitted that the future planned spinal injections, the exact nature of which were unknown, did not impact as it had been accepted in 2015 that Mrs Gordon’s spinal condition was fully diagnosed, treated and stabilised.

9. With respect to the mental health issues, Mr Meadows contended that an impairment rating did not have to be attracted, the only requirement being that the conditions should be accepted as being outside normal mental function. The Tribunal was urged to place little weight on the report of the Job Capacity Assessor and should accept the opinions of Dr Sutherland and Mr Leitl leading to a conclusion that an impairment rating of 20 points was attracted under Table 4 and therefore Mrs Gordon qualified for the DSP.

10. Mr Meadows contended, without providing detailed argument, that the respondent’s reliance on the Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 8500 had been wrongly interpreted by the Secretary.

    Ms Latta for the Secretary

11. Ms Latta submitted that there was no severe impairment meeting the requirements of a 20 impairment point rating under any Table and no program of support had been completed by Mrs Gordon. As a result she did not qualify for the DSP at the time of lodgement of her claim or within the qualification period, this being 27 January 2015 to 28 April 2015.

12. The Secretary accepted that Mrs Gordon suffered several physical conditions, resulting in an impairment of her capacity for work. They accepted that her lumbar spinal condition was fully diagnosed, treated, and stabilised, but rejected the contention that there was an impairment rating of 20 points under Table 4 given Mrs Gordon’s evidence that she could perform all of the descriptors of that particular rating at the time of her application and the 13 weeks thereafter.

13. While Dr Sutherland in his report in January 2015 had confirmed Mrs Gordon’s evidence above, he had more recently provided a conflicting assessment. His medical records did not support any of the reasons given for his change in assessment. In his evidence before the Tribunal he agreed that he had never measured the degree of incapacity in terms of range of movement of either Mrs Gordon’s cervical or lumbar spine. 

14. Ms Latta pointed out that the Guide to the Social Security Law indicates that Table 1 is only to be used for chronic pain if no other appropriate table exists. In this instance, Table 4 and 2 were pertinent to Mrs Gordon’s physical conditions. It was clear that the right knee condition did not occur or become more symptomatic until after the qualification period and had not been fully diagnosed, treated, and stabilised before 28 April 2015. 

15. With respect to alternative employment or any attempted return to work programs, Ms Latta contended that Mrs Gordon had confined these efforts to the aged care employment area and had not considered or attempted to engage in any more sedentary work in a different sphere. 

16. The Secretary relied on the Tribunal’s decision in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 affirming the qualification period or the period that the Tribunal can review the decision as being from the time of the claim lodgement and the 13 weeks thereafter. The Secretary also relied on the decision in Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500 which excluded any impairments not assigned an impairment rating from consideration of any continuing inability to work.

    TRIBUNAL’S DECISION

17. While reviewing the application in its totality, the Tribunal has concentrated on the reasons for remittal from the Federal Court, they being the misinterpretation of Table 4 of the Impairment Tables.

18. This decision is based purely on Mrs Gordon’s current evidence that at the time she lodged her claim on 27 January 2015, she was able to perform all of the descriptors in Table 4. Inability to perform any one of these descriptors attracts an impairment rating of 20 points. The Administrative Appeals Tribunal, General Division decision dated 4 November 2016 found Mrs Gordon could perform all four descriptors. At paragraph 49 of that decision Mr Conrad Ermert said:

    As all of the descriptors for the rating of 20 points are not satisfied, I must apply the next lower rating of 10 points.  I find accordingly.  This is not the rating of 20 points required to classify the condition as severe.

    But in paragraph 47 Mr Ermert stated:

    ... there is no evidence that Mrs Gordon is unable to perform the functions listed for an assessment of 20 points.  The exception is the statement of the Job Capacity Assessor that Mrs Gordon is unable to turn her head.

    Based on Mrs Gordon’s own evidence that she only had some difficulty looking to the left, the claim that she was unable to turn her head was rejected by Mr Ermert. 

19. In the hearing before this differently constituted Tribunal, Mrs Gordon has affirmed, under Oath, the evidence she gave at the earlier hearing. She has stated unequivocally that she did not have any of the restrictions outlined in the 20 point assessment descriptors in Table 4.

20. The evidential basis for the decision of 2016 remains unchanged. However this Tribunal assigns a total Impairment Rating of 15 points as did the ARO and the AAT Tier 1 in their decisions, 5 points being attracted under Table 2 (upper limb) and 10 points under Table 4 (spinal disorders).

21. The impairment rating assessment in relation to Mrs Gordon’s diabetes mellitus is unchanged given Dr Sutherland’s evidence that her diabetes is well controlled. 

22. In relation to any mental disorder that may be present there is no confirmation of a diagnosis by a clinical psychologist or psychiatrist as required by the Legislation and the Guide. Dr Sutherland affirmed this was the case. The only assessments to which he was privy had been made by a psychiatric nurse. 

23. The assessment of Mrs Gordon’s acute brain injury is limited, and the reports of Ms Boin are compromised as she relied on Mrs Gordon’s report of her symptoms and the trauma to her head and was not provided with the information as to Mrs Gordon’s then current and persisting high opioid intake. The Tribunal has not assigned an impairment rating given this finding.  

24. While Table 1 of the Impairment Tables provides for the general category of impaction on functions requiring physical exertion and stamina, the Guide advises that this table should not be used when there are more specific tables attracted by the conditions claimed. As Mrs Gordon has been assessed as having an impairment rating of 10 points under Table 4, spinal disorders, and 5 points under Table 2, upper limb function, at the primary decision-maker level, the AAT 1^st Tier and the AAT, General Division level decision of November 2016, further rating under Table 1 is precluded.

25. This Tribunal acknowledges the Secretary’s acceptance that Mrs Gordon’s lumbar spinal condition is fully diagnosed, treated and stabilised but questions whether this is correct, given that further treatment is planned. In addition Mrs Gordon has expressed her hope that she will, when she can afford it, undergo lumbar discectomy as recommended by her treating orthopaedic surgeon, Mr de la Harpe. It could be argued, but has not been before this Tribunal, that this indicates that her lumbar spinal condition is not fully treated and would therefore not attract an impairment rating. Her overall impairment rating would then be 5 points.

26. The Tribunal has elected not to address this particular aspect of the claim other than to note and record it.

27. The evidence before the Tribunal is to the effect that Mrs Gordon does not satisfy s 94(1)(b) of the Act, in that her conditions do not attract an impairment rating of 20 points. It is not necessary to address s 94(1)(c) and any continuing incapacity for work but it is confirmed that Mrs Gordon has not undertaken a program of support.

28. The Tribunal affirms the decision of the ARO of 11 May 2015 as affirmed by the Administrative Appeals Tribunal, Social Services and Child Support Division on 4 September 2015. Mrs Gordon’s Impairment Rating is 15 points and thus she does not satisfy s 94(1)(b) of the Act and did not qualify for the DSP.

29. In light of Mrs Gordon’s ongoing medical conditions, the advent of a major infection necessitating extensive skin grafting and the recent cervical spinal fusion, she might give consideration to lodging a further application for the DSP.

I certify that the preceding 66 (sixty‑six) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member

.....................[sgd]...................................................

Associate

Dated: 12 October 2017

Date of hearing:	22 August 2017
Advocate for the Applicant:	Mr Denny Meadows
Solicitor for the Respondent:	Ms Kellie Latta, Sparke Helmore Solicitors