Halliday and Secretary, Department of Social Services (Social services second review)
[2021] AATA 3719
•15 October 2021
Halliday and Secretary, Department of Social Services (Social services second review) [2021] AATA 3719 (15 October 2021)
Division:GENERAL DIVISION
File Number: 2020/2527
Re:Ms Kerrie Halliday
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Ms A E Burke AO Member
Date: 15 October 2021
Place:Melbourne
Pursuant to s 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth).
..............................[sgd]..........................................
Ms A E Burke AO Member
Catchwords
SOCIAL SECURITY – application for disability support pension – whether qualified – whether insufficient medical evidence provided – where conditions overlap and therefore cannot be rated as one element has not been fully treated – assessment of functional impairment arising from birth deformity – whether impairment attracts rating of 20 points or more under Impairment Tables – where program of support had not been undertaken – decision under review set aside.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Alicier and Secretary, Department of Social Services [2017] AATA 538
Ljubovic and Secretary, Department of Social Services [2015] AATA 1025
Muir v Secretary, Department of Employment and Workplace Relations [2005] AATA 902Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA
Secondary Materials
Guide to Social Security Law, Department of Social Services
REASONS FOR DECISION
Ms A E Burke AO Member
15 October 2021
INTRODUCTION
Ms Kerrie Halliday (the Applicant) is seeking a second tier review of the decision made by the Secretary of the Department of Social Services (the Respondent) to refuse to grant the Applicant a Disability Support Pension (DSP), pursuant to section 94 of the Social Security Act 1991 (the Act).
Ms Halliday lodged a claim for DSP on 13 February 2019. On 12 June 2019, Centrelink rejected Ms Halliday’s claim for DSP as she did not have an impairment rating of 20 points. On 19 December 2019, an Authorised Review Officer (ARO) of Centrelink affirmed the decision. Ms Halliday sought review of ARO’s decision at the Social Services and Child Support Division of this Tribunal (AAT Tier 1), which affirmed the decision on 25 March 2020. Centrelink is the service provider for the then Department of Human Services, now Services Australia.
The application was heard via telephone on 12 July 2021. Ms Halliday was self-represented and Mr Alan Quanchi, Government Lawyer from Services Australia appeared for the Respondent. The Applicant gave evidence under affirmation. At the conclusion of the hearing the Tribunal allowed Ms Halliday additional time to provide any further information, including photographic evidence and gave the Respondent time to reply.
THE ISSUES IN CONTENTION
The issue in contention is whether Ms Halliday was qualified for a DSP from the date of her claim, 13 February 2019 to 15 May 2019 (the qualification period). This is in accordance with section 4(1) of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act).
The Tribunal must consider whether Ms Halliday had:
(a)a physical, intellectual or psychiatric impairment(s);
(b)a fully diagnosed, treated and stabilised condition(s) which result in impairments attracting 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)a continuing inability to work.
BACKGROUND
Ms Halliday is a 63-year-old woman who lives alone. She was previously in receipt of the DSP from 1992 to 2000. She was then in receipt of carer payment from 2015 to 2018 which ceased when her father (the care receiver) passed away. She is currently in receipt of jobseeker payment. Ms Halliday completed Year 12 and has undertaken courses in hospitality. She previously worked in hospitality and aged care, and last worked some ten years ago in a casual hospitality position.
On 13 February 2019, Ms Halliday made an application for DSP, citing her medical conditions as:
My health has deteriorated dramatically in the past ten years due to my birth defects, plus injuries from motor vehicle accident. Constant pain and extreme depression. Weakness in my muscles and losing feeling in what fingers I do have, I am now struggling with day-to-day.
My broken femur has not healed properly and my surgeon has told me that I also need my knees replaced. I am unable to kneel, squat and they often give way when I walk. Constant back and neck pain. I have been suffering from anxiety when I leave the house and regularly stay indoors to avoid this feeling. I was witness to and almost involved in a terrible head on accident which has caused me to become very scared in traffic. I also was shortly after involved in an armed robbery and now startle very easily at loud noises or raised voices. I have been suffering from nightmares since last year I watched my father passed away on the bathroom floor which also had an effect on my mental state as I found my father-in-law passed away in his bed. I shake constantly if I get frightened and have insomnia. I am seeing a clinical psychologist to try and help me. My GP has doubled my antidepressant but it's not really helping. I have Endone, Targen and Lyrica but try not to use them because of the addictive nature. I am waiting to see a psychiatrist for post-traumatic stress disorder.
On 24 May 2019, a face-to-face job capacity assessment (JCA) was undertaken by Centrelink. The JCA report dated 7 June 2019, assessed Ms Halliday’s impairments as attracting five points under Table 2 – Upper Limb Function for her shoulder and upper arm disorder and nil points for her other conditions as they were not considered fully treated and stabilised. The JCA determined Ms Halliday had a baseline work capacity of 8-14 hours a week due to the “significant impact on the claimant's conditions on her endurance, manual handling, mobility, concentration, motivation, mood, reliability, capacity to bend, push, pull, lift and carry/and ability to perform physical tasks”. The JCA reported that, with disability specific intervention, it was likely Ms Halliday could build her work capacity to 8-14 hours per week. The JCA sated in their reasons:
The previous Job Capacity Assessment (JCA) dated 14/11/14 assessed the claimants medical condition of Shoulder and Upper Arm Disorder as fully diagnosed, treated and stabilised and recommended an impairment rating of 5 points under Table 2- Upper Limb Function. The previous assessment assessed the claimants medical condition of Musculo-Skeletal Disorder- Other as fully diagnosed, treated and stabilised and recommended impairment ratings of 5 points under Table 3- Lower Limb Function and 5 points under Table 4- Spinal Function. The previous assessment assessed the claimants medical condition of hypertension as fully diagnosed, treated and stabilised and recommended an impairment rating of 0 points under Table 1- Functions requiring physical exertion and stamina. The claimants other medical conditions were not considered fully diagnosed, treated and stablised therefore no further impairment ratings assigned. Work capacity with intervention was assessed at 15-22 hours per week.
The Disability Support Pension Medical Assessment Recommendation (DSPMAR) dated 20/2/19 recommends a JCA required.
Current assessment: The current assessment has assessed the claimants medical conditions of Shoulder and Upper Arm Disorder and hypertension as fully diagnosed, treated and stabilised and has recommended impairment ratings of 5 points Table 2- Upper Limb Function and 0 points for Table 1- Functions requiring physical exertion and stamina. The claimants other medical conditions were not considered fully diagnosed, treated and stabilised therefore no further impairment ratings assigned. Work capacity with intervention has remained unchanged at 15-22 hours per week in line with expected potential work capacity.
On 12 June 2019, Centrelink rejected Ms Halliday’s claim for DSP, as she did not have an impairment rating of 20 points under the Impairment Tables.
On 19 December 2019, on internal review, an ARO affirmed the earlier Centrelink finding. The ARO awarded a total impairment rating of 15 points, stating:
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·You have the following permanent conditions: hypertension, spinal disorder and phocomelia.
·Your conditions of bowel disorder, mental health disorder, substance abuse, fractures and crush injuries, bowel disorder and hypothyroidism are not accepted as being permanent as they have not been fully treated and stabilised.
·You do not have an impairment rating of 20 points or more.
Reasons for Decision
To qualify for Disability Support Pension you need to have permanent conditions that can be assigned a rating of 20 points or more under the Impairment Tables and a continuing inability to work for at least 15 hours per week.
…
Hypertension
The report completed by Dr Hill on 20 March 2013 lists your hypertension condition as generally well managed.
You advised the Job Capacity Assessor during your interview on 24 May 2019 that:
·you are taking Twynsta which is helpful and that this condition is monitored by your GP,
·you have had a recent medication swap, and
·your condition is well managed.
The medical report completed by Dr Prakash on 6 December 2019 has listed your hypertension under your medical history.
You advised me during our telephone conversation on 17 December 2019 that you suffer from hypertension.
Based on the medical evidence I have found that your hypertension condition is fully treated and stabilised. I have assigned a zero rating under Impairment Table 1 – Functions requiring Physical Exertion and Stamina. A zero rating is applied when the impacts of the condition are limited or minimal.
Mental health disorder
The report completed by Dr Hill on 20 November 2013 has listed your anxiety and depression as generally well managed.
The report completed by Dr Kothrakis on 5 January 2018 advised that:
·your physical impairments have led to your current mental health,
·you are having psychological counselling for depressed mood and anxiety due to your back pain.
The report completed by Dr Prakash on 26 November 2018 advised that your post-traumatic stress disorder (PTSD) was diagnosed in 2016 and your depression in 1993.
You advised me during our telephone conversation on 17 December 2019 that:
·you have been admitted to a mental health facility previously on 2 occasions and you feel that it may be time to be readmitted for treatments,
·you see a clinical psychologist every 2 weeks,
·you have a fear of driving and you only drive locally to the shops,
·you do not like traffic, and
·sometimes your daughter goes with you.
Based on the medical evidence I have found that your mental health condition is not fully treated and stabilised. This means that an impairment rating is not considered for this condition.
Musculoskeletal disorder - back
The imaging report completed by Dr Connell on 20 November 2013 advised that:
·you have postural changes with straightening of the spinal column,
·you have large ridges of new bone formation arising from the anterior surfaces of the C4, C5 and C6 vertebral bodies,
·you have mild to moderate degenerative changes in the mid-thoracic spine with bridging osteophyte formation noted along the right and anterior surfaces of the T9. T10 and T11 vertebral bodies, and
·you have mild facet arthrosis at the L4/5 and L5/S1 levels.
The report completed by Dr Hill on 20 November 2013 advised that:
·you have knee, back and neck pain as a result of a motor vehicle accident 35 years ago,
·you have undergone chiropractic treatment for your back, taken Neurofen for pain and have had physiotherapy,
·you have difficulty bending, squatting and twisting and you have headaches that cloud your concentration and memory, and
·you have lower twisting.
You advised the Job Capacity Assessor during your interview on 24 May 2019 that:
·you have undergone 3 surgeries on your knees and you were taking Endone, Targin and Lyrica,
·you are taking Panadol when needed,
·you have just finished a 12 week pain management program,
·you saw an orthopaedic surgeon last year, who advised that you need to have your knees replaced,
·you attended aerobics last year, and
·your GP is currently doing up a care plan for further physio.
You advised me during our telephone conversation on 17 December 2019 that:
·you have a compacted disc in your neck and back,
·you have a fear of your condition being made worse with physiotherapy,
·you do not take any pain medication other than the occasional over the counter type, however you do self-medicate with alcohol, and
·you were told that you would be able to take a maximum of 8 Panadol per day.
Based on the medical evidence I have found that your back disorder is fully treated and stabilised. I have assigned a rating of 5 points under Impairment Table 4 – Spinal Function. This rating has been assigned as you have difficulty bending to the knee and straightening up again.
Substance abuse
The report completed by Dr Prakash on 26 November 2018 advised that your alcohol was diagnosed in 2011.
The report completed by Dr Shanker on 10 March 2019 advised that you have relapsed in alcohol use over the last 6 months and that you are drinking the equivalent of 10 standard drinks per day.
You advised me during our telephone conversation on 17 December 2019 that you self-medicate with alcohol
Based on the medical evidence I have found that your substance abuse is not fully treated and stabilised. This means that an impairment rating is not considered for this condition.
Fractures and crush injuries
The report completed by Dr Prakash on 26 November 2018 advised that the fractures to your right arm occurred on 9 June 2017.
You advised me during our telephone conversation on 17 December 2019 that:
·your arm was injured when you were trying to stop your father from falling and he ended up landing on top of you,
· you sustained 4 fractures to your right femur which required an open reduction, and
·your arm has not healed since this occurred in June 2017.
In the absence of recent specialist investigation and information to suggest that further intervention would not assist your ability to function, I cannot consider your fracture injuries to be fully treated and stabilised. This means that an impairment rating is not considered for this condition.
Bowel disorder
You advised me during our telephone conversation on 17 December 2019 that:
·your irritable bowel syndrome (IBS) causes you to have urgency and you need to carry items for changing etc. when you go out.
There is no medical evidence on this condition available to me. Therefore, I am unable to consider it to be fully diagnosed. This means that no impairment rating is considered for this condition.
Hypothyroidism
You advised me during our telephone conversation on 17 December 2019 that:
·you had your thyroid gland removed,
·during the removal of your thyroid it was found that it was wrapped around the vocal cords, and
·you received damage to your vocal cords and now you have speech and voice problems.
In the absence of recent specialist investigation and information to suggest that further intervention would not assist your ability to function, I cannot consider your hypothyroidism to be fully treated and stabilised. This means that an impairment rating is not considered for this condition.
Thalidomide (baby)
The report completed by Dr Prakash on 26 November 2018 advised that you suffer from phocomelia as a result of thalidomide being taken whilst you were in utero.
You advised the Job Capacity Assessor during your interview on 24 May 2019 that:
·you tend to drop things,
·you find it difficult to lift heavy items such as a two litre carton of milk,
·you are able to carry a 1litre carton of milk,
·you use a small saucepan and frypan,
·you have difficulties with buttons, and unscrewing lids on jars, as you are unable to grip, however you are able to turn the pages of a book.
You advised me during our telephone conversation on 17 December 2019 that:
·you are a thalidomide baby with both physical and internal problems, and
·you have one full-length arm and one shorter arm,
·your hands looked like claws when you were born as you had very short fingers,
·your fingers were webbed and you underwent surgery to have them separated,
·you have difficulty with coins and buttons,
·you have difficulty gripping, and
·you have difficulty unscrewing a top of a bottle.
Based on the medical evidence I have found that this condition is fully treated and stabilised. I have assigned a rating of 10 points under Impairment Table 2 – Upper Limb Function. This rating has been assigned as you have difficulty with fine motor skills like handling coins and buttons.
Therefore, your total impairment rating is 15 points for your medical conditions.
On 25 March 2020, the AAT Tier 1 affirmed the decision of the ARO to reject Ms Halliday’s DSP claim. The AAT Tier 1 awarded Ms Halliday an impairment rating of nil points finding that none of her conditions were fully treater or stabilised and she was not eligible for the DSP. The Member stated:
12. The Tribunal acknowledges Ms Halliday’s alcohol use disorder, anxiety disorder and PTSD and considers them to be fully diagnosed. However, as she has seen a psychiatrist only once, these conditions cannot be considered to be fully treated or stabilised. The Tribunal considers that the severity of a condition ought to be proportional to the effort made to treat it. The fact that Mrs Halliday has only seen a psychiatrist once indicates that this has not occurred. These conditions are therefore unable to be assessed under the Impairment Tables…
15. The Tribunal considers Mrs Halliday’s chronic pain syndrome to be fully diagnosed. However as she has seen neither an orthopaedic/spinal surgeon in relation to her spinal pain, nor a pain physician in relation to any of her pain, it cannot be considered as fully treated. Therefore, Mrs Halliday’s chronic pain is unable to be assessed under the Impairment Tables …
18. The Tribunal acknowledges Ms Halliday’s upper limb birth deformities and considers them to be fully diagnosed. However the cause of her recent left upper limb pain and whether or not it is related to her congenital birth defects is unclear. As a result, Mrs Halliday’s thalidomide-induced phocomelia cannot be considered to be fully treated or stabilised. These conditions are therefore unable to be assessed under the Impairment Tables …
On 29 April 2020, Ms Halliday sought a review of the AAT Tier 1 decision by this division of the Tribunal, (AAT Tier 2), as she disagreed with the decision, stating:
My original claim was in 2014. I was told I had to reapply to have extra medical evidence considered which I did. I have continually supplied extra medical reports showing my health has deteriorated dramatically but am being assessed as likely to improve. The last review stated that I have been able to work most of my adult life which is completely untrue. He also stated that my daughter sometimes helps me, when she actually helps me every day with everything including driving, dressing, doing my hair and assists with personal hygiene. She was also present at the phone interview. I had asked for face to face, not a phone review and request the same again. I am willing to wait as long as necessary. Also, when I first applied, I was given 15 points and told to reapply with my clinical psychologist report which still has not been referred to. As mentioned, I have all the classic symptoms associated with thalidomide and can provide evidence that all my health issues are related. IBS coeliacs, lactose intolerance, multi skeletal problems and depression are all health problems caused my Thalidomide. The last person who did my review gave me Zero points. How can three or more reviews give me 15 points then someone else drops me to five and the another review puts me back to fifteen and now Zero! The ombudsman’s report from some years back stated that this was potentially a highly sensitive matter and also suspected a “Potential serious breach of APS code of conduct“ I would like to get some advise on what that actually means . My thalidomide disability is a very visual disability, and being asked more than once in a phone review , to describe how it looks is very difficult and also very upsetting for me . I also want to provide extra information that I have found through research.
On 3 March 2021, Dr Chris, a physician from the Health Profession Advisory Unit (HPAU) of Services Australia, provided a medical opinion regarding Ms Halliday’s medical conditions for the purposes of this review. His synopsis of opinion stated:
In my opinion the available medical evidence supports an assessment that the following conditions were deemable fully diagnosed, treated and stabilised (FDTS) at the time of the subject DSP qualification period from 13 February 2019 and for 13 weeks thereafter:
·Congenital upper limb deformities (with an impairment rating of 10 points assessed under Table 2 – Upper Limb Function)
·Chronic cervico-thoraco-lumbar spine disorder, if conceded as FDTS separate from a more recent cervical spine exacerbation (baseline impairment rating of 5 points under Table 4 – Spinal Function)
·Hypothyroidism/hypocalcaemia, treated (0 impairment points assigned under Table 1 – Functions requiring Physical Exertion and Stamina)
·Hypertension, treated (0 impairment points assigned under Table 1)
In addition the following conditions are considered to have been not fully diagnosed, treated and stabilised (or not fully treated and stabilised) during the qualification period:
·Alcohol use disorder
·Anxiety, depression and post-traumatic stress disorder (PTSD) (maximum 10 impairment points assessable under Table 5 –Mental Health Function if found to be FDTS)
·Spinal disorder as a whole, including probable cervical radiculopathy affecting the left arm
·Post-fracture right thigh pain
·Knee symptoms, apparent osteoarthritis
·Chronic pain syndrome
·Gastrointestinal symptoms, applicant-reported as related to coeliac disease and irritable bowel syndrome (IBS)
…
In summary it is considered that 10 impairment points were reasonably assignable under Table 2 –Upper Limb Function, 5 baseline points (conceded) under Table 4 – Spinal Function and 0 points under Table 1, but that other medical conditions were not definitely assessable as FDTS during the 2019 DSP qualification period in question. If the mental health disorder should be found to be FDTS during the DSP qualification period, a further 5 to 10 points could be assignable under Table 5. It is likely that the total impairment rating under various Tables will in due course amount to at least 20 points, following adequate management of conditions which in my opinion were deemable not fully diagnosed, treated and stabilised at the time. A new DSP claim may be required.
RELEVANT LEGISLATION AND ISSUES
Section 94(1) of the Act provides that a person is qualified for DSP if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
Paragraph 6(3)(a) of the Impairment Tables require that an impairment rating can only be assigned if the condition causing that impairment is “permanent”.
Paragraph 6(4) of the Impairment Tables states that a condition is “permanent” if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
(c) the condition has been fully stabilised; and
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
The introduction to each relevant Impairment Table requires that “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment”.
Paragraph 6(5) of the Impairment Tables states:
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Paragraph 6(6) of the Impairment Tables states:
For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
For the purposes of paragraph 6(7) of the Impairment Tables, reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
The issue to be determined in this review is whether, during the qualifying period, Ms Halliday suffered an impairment(s) that can be assigned 20 points or more under the Impairment Tables; and if so, whether she had a continuing inability to work.
Section 5(2) provides the purpose and general principles of the Impairment Tables. The Impairment Tables are function-based rather than diagnosis-based. They describe functional activities, abilities, symptoms and limitations. They are designed to enable the assignment of ratings to determine the level of functional impact of an impairment.
Paragraph 6(1) of the Impairment Tables sets out that, when assessing functional capacity, a person’s impairment must be assessed on the basis of what a person can, or could do; not on the basis of what a person chooses to do or what others can do for the person.
Paragraph 6(8) of the Impairment Tables further provides that the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating can be assigned. In other words, a person may be diagnosed with a condition but, with appropriate treatment, the impairment from the condition may not result in any functional impact.
It is necessary, therefore, to consider the Applicant’s medical conditions with reference to the applicable Impairment Tables.
Part 2 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS determination) sets out a number of exemptions to the general requirements that a person must participate in a program of support for at least 18 months, in cases where a person does not have a severe impairment.
The POS determination relevantly provides:
Part 2—Requirements for active participation
7 Requirements for active participation
…
(4) This subsection is satisfied in relation to a person and a program of support if:
(a) the program of support was terminated before the end of the relevant period; and
(b) the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5) This subsection is satisfied in relation to a person and a program of support if:
(a) At the end of the relevant period, the person is participating in the program of support; and
(b) The person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
THE TRIBUNAL’S CONSIDERATION AND FINDINGS
Evidence before the Tribunal
The evidence before the Tribunal included documents provided under section 37 of the Administrative Appeals Tribunal Act 1975 Cth) (the AAT Act), referred to as the “T documents”, and additional medical reports and photographs which were lodged by Ms Halliday. A supplementary HPAU report was submitted in response to Ms Halliday’s further evidence.
Does Ms Halliday have a physical, intellectual or psychiatric impairment?
Section 94(1)(a) of the Act provides that to qualify for DSP, a person must suffer from an impairment.
The Respondent accepts that Ms Halliday is suffering from a congenital upper limb condition (phocomelia), hypothyroidism, hypertension, chronic cervical-thoraco-lumber spinal disorder, alcohol use disorder, anxiety, depression and PTSD. The Tribunal finds that Ms Halliday was living with these impairments during the qualifying period and therefore meets the requirements of section 94(1)(a) of the Act.
As noted above, section 94(1)(b) of the Act states that the second requirement to qualify for the DSP is that the person’s impairment rating is 20 points or more under the Impairment Tables.
Does Ms Halliday have medical conditions that result in impairments that can be rated 20 points or more under the Impairment Tables?
Numerous Medical records describe Ms Halliday’s past medical history as the following:
1957 Thalidomide induced Phocomelia
1993 Depression
1997 Lumbar Disc bulge l4/l5
2011 Alcohol dependence
2016 PTSD
2017Femur fracture - open reduction (Right)
2017 Thyroid lump
2018 Thyroidectomy
Congenital condition (phocomelia) – upper limbs
Doctor Anuradha Prakash, Ms Halliday’s general practitioner since 12 July 2017, in a medical certificate of 12 February 2018, diagnosed her as suffering from “thalidomide induced phocomelia” which was “likely to persist”. Dr Prakash described Ms Halliday’s symptoms:
has deformity in both hands and left arm
loss of fingers in right and left hand
movement causes pain with left arm
she cannot use both hands for holding things c/o pain moving up the arm due to hand disability
The HPAU report of 3 March 2021 opined:
This condition has been present since before Mrs Halliday’s birth and is presumably fully diagnosed. She seems to have formed a firm belief that the deformities were thalidomide-induced, which is understandable, however the year and country of her birth makes this attribution improbable, and her former GP Dr M Hill in his 2013 DSP medical report marked a checkbox to indicate that the thalidomide attribution was ‘presumptive’. On the reviewed corroborating medical evidence (including direct advice from the GP Dr Prakash on HPAU contact) it appears likely that Mrs Halliday does not suffer from phocomelia as usually defined (i.e. significant limb shortening ‘characteristically … of the proximal to mid portions of the limbs’).
…
Although the congenital upper limb defects per se are very likely FDTS, related impairment appears to have been complicated in recent years by mainly left upper limb pain and numbness, as noted in the AAT1 decision. These symptoms may be due cervical spine radiculopathy which is potentially treatable with intraforaminal corticosteroid injections and/or foraminotomy. Specialist assessment by a neurosurgeon, other spinal surgeon or pain management physician could well be indicated.
…
In my opinion the potential cervical spine contribution to Mrs Halliday’s upper limb disability during the qualification period should therefore be excluded from an impairment assessment, pending medical specialist advice.
In the event that separation and rating of long-term impairment related to upper limb deformities alone should be considered appropriate, it is likely that a substantial related degree of permanent upper limb impairment does exist, although corroborating evidence is somewhat limited. Relevant information from Dr Prakash includes “deformity in both hands and left arm[,] loss of fingers in right and lef[t] hand[,] movement cause[s] pain with left arm” […] “she cannot use her both hands for holding things[,] c/o [complains of] pain moving up the arm due to her hand disability”.
The above remarks from Dr Prakash appear reasonably consistent with Mrs Halliday’s self-described upper limb disability as reported to a job capacity assessor and the authorised review officer. The loss of strength and dexterity reported appears compatible with an impairment rating under Table 2 – Upper Limb Function of 10 points as assessed by the review officer.
Also of relevance to an impairment assessment is Mrs Halliday’s handwriting in the DSP application form ‘Medical details’ section dated 20/01/19 (T19). Her application signature was fluent and extensive neat handwritten notes in and attached to the section indicate good dexterity with her writing hand (therefore presumably her dominant hand). She may well be less capable of other types of hand use requiring good dexterity and upper limb control.
Ms Halliday advised the Tribunal that it was her mother’s belief that Ms Halliday’s arm/hand deformity were caused by thalidomide given to her mother directly from her doctor prior to it being available via prescription in Australia. She advised the Tribunal:
Halliday: Yes, I read what they wrote, there has always been an issue with thalidomide. From what my Mum told me it was given directly from her doctor. There has been a court case with Gordon showing people have been given it before it was legally available. I was going to join that case but my medical files and my Mum’s disappeared. I spoke to a doctor and he said I absolutely, definitely, he was a whistle blower for medication causing problems for babies.
Member: Your mum was not part of an action?
H: Mum always blamed herself and blamed the doctor. She wouldn’t talk about it. It wasn’t until she passed away when I was 36 that I investigated. I know Gordons had a court case but only those with records could take part.
M: You went to the GP and asked for records?
H: I actually found his wife but he stopped practicing obstetrics because of this. He figured out what he was giving was not good.
M: It has always been your and your mother’s belief that she was given these medications and they caused your deformity?
H: Yes
Ms Halliday advised the Tribunal she had significant functional issues with her arms and hands and was offended by claims that she did not have a visible deformity. She advised the Tribunal:
Halliday: What caused it isn’t relevant but that’s what my Mum believed. The report saying that there’s no evidence that I can’t use a keyboard offends me. When I go out people stare at me, every day of my life, then I have someone telling me there’s no evidence I have trouble with keyboards, buttons, zips, buttons, jars. I am the evidence and I wish I could do these things. The point system telling me I can do things which I can’t do and I don’t know how to prove I can’t do this. I am actually going to attach some photos. One of the people I saw at Centrelink said I had no noticeable disability, she must be blind, I have one arm shorter than the other, my left hand does nothing, I can’t open it even if I can put something in it. I’m now having issues with tingling, pain and numbness in my arms. Everything is getting more difficult, my research shows it causes more issues like depression, eyes, gastro issues.
During the hearing, the Tribunal explored the functional impact of Ms Halliday’s upper limb impairment under Table 2 – Upper Limb Function, exploring her capacity in respect of a severe functional impact. Table 2 states:
Table 2 – Upper Limb Function – 20 points
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
Ms Halliday gave evidence of her upper limb condition during the qualifying period:
Member: If I look at 20 points under upper limb Table 2, it says severe impact on activities involving hands or arms,what would you say?
Halliday: I would say obviously I don’t have an amputation.
M: Do you have limited movement in both arms and hands?
H: Yes, especially my left arm and hand. I totally rely on one finger on my right hand.
M: So if you pick up a cup how do you do it?
H: With two fingers on my right arm.
M: You couldn’t pick up a cup in your left hand?
H: No, my wrist is permanently bent. I can’t straighten it or open my left hand or close it. I wouldn’t hold a cup in my left hand, my wrist is too bent.
…
H: She [Applicant’s daughter] helps me wash my hair, shave my legs. A person from NDIS told me to apply and I have but I think I will be able to get help with housework which I struggle with
M: Definitely check out an NDIS plan.
H: Saying my hands are worth 10 points, I say to people bandage both hands, put your arm in a sling and do that for a week and see how you go and tell me it’s worth 10 points.
M: The next is person has significant difficulty moving and handling objects. Say if someone delivers a package to the door, how do you go?
H: I have had to learn to adapt. I don’t wear anything with zips or buttons.
M: No shoelaces?
H: No.
M: The person has difficulty using computer keyboard, you can’t use a keyboard?
H: No not at all.
M: How do you go with your phone?
H: I use a phone but I get very frustrated. My daughter is talking about getting me an iPad with bigger buttons, I always miss the right letters and it doesn’t make any sense.
M: You don’t have computer at home?
H: No never.
M: The next one is difficulty using a pen or pencil, how do you go writing?
H: I find that more and more difficult. What the psychologist suggested was buying fatter pens with rubber on the bottom which I can hold better but a normal pen I struggle with. I was interested in the report noting my wiring was neat because I thought it was terrible.
M: The person has difficult turning pages on a book?
H: I have difficulty with magazines, though a problem is getting a tissue out of the box if it’s not out. Anything which requires a bit of dexterity I struggle with. I have a kindle. This question has always puzzled me. If you get face wipes or baby wipes, I can’t get them out.
The Respondent accepts that as of the qualification period, Ms Halliday’s congenital upper limb condition (phocomelia) was permanent, relying upon the HPAU opinion dated 3 March 2021, which outlined the history of treatment received by Ms Halliday from the available medical evidence. The Respondent particularly observed that Ms Halliday’s general practitioner, Dr Prakash, provided a diagnosis date of 1957 for this condition.
The Respondent contended that the functional impact arising from Ms Halliday’s congenital upper limb condition (phocomelia) should be assessed under Table 2.The Respondent argued that a maximum rating of 10 points could be awarded for this condition and relied upon the following evidence in support of this rating.
(a)On 1 December 2014, a JCA reported that the Applicant could pick up objects of approximately 2L, is able to write, open a drink bottle and manage buttons and shoelaces.
(b)On 12 February 2018, Dr Prakash, general practitioner, reported that the Applicant had deformities in both her hands, loss of fingers in her right and left hand, and pain with movement in her left arm.
(c)On 19 December 2019, an ARO recorded that the Applicant advised the agency that she has one full-length arm and one shorter arm, she has difficulty with coins and buttons, and gripping/unscrewing the top of a bottle.
(d)On 20 October 2020, Dr Kothrakis, clinical psychologist, opined that the Applicant requires assistance to shave her legs, drops things, cannot open bags and at times cannot open jars or press the remote of her TV.
The Respondent contended that a rating of 10 points under Table 2 for Ms Halliday’s condition of phocomelia was correct, as she has difficulty with most of the moderate functional descriptors. These being that she has difficulty picking up a 1L carton of liquid, holding bulky objects, using buttons or coins, and unscrewing the lid of a jar or bottle.
The Respondent argued that any functional impact of Ms Halliday’s cervical spine condition on her upper limb condition should be excluded, as they are caused by a separate condition. The Respondent argued that this position should be preferred by the Tribunal as it was supported by the HPAU assessor, who identifies that there may be secondary impacts upon Ms Halliday’s upper limbs from her spinal condition.
As the Tribunal was conducted via telephone Ms Halliday physical deformity was unable to be visually assessed. To ensure the Tribunal had all available evidence to assess Ms Halliday’s functional capacity, it requested Ms Halliday provide photos of her hands and arms to corroborate her claims made in the hearing. The Tribunal was mindful of the conflicting evidence from the HPAU report about Ms Halliday’s actual physical level of deformity. Ms Halliday advised the Tribunal that her daughters believed it was in her best interest to show what she struggled with on a daily basis. Following the hearing, Ms Halliday submitted 12 photographs which showed significant deformity of both hands and arms.
The HPAU was provided with Ms Halliday’s photographs and gave the following observations in a supplementary report dated 9 September 2021:
a. The first photo shows Mrs Halliday in left lateral profile with her trunk posture and left upper arm appearing quite normal. The left elbow is carried in a mild degree of flexion. There may be some muscle wasting in the left forearm and the wrist is in a palmar-flexed position.
b. This frontal photo obscures the right shoulder contour due to marked light flare across the shoulder. The visible portion of the right upper arm appears normal, as do the left upper arm and anterior elbows. The right forearm muscle contour appears to be within normal limits, however muscle wasting is evident in a slightly shortened left forearm, not amounting to the standard definition of phocomelia.
Deformities are shown in fingers of the right hand. The left wrist is again shown in a flexed position and some bony and/or soft tissue prominence of the dorsal wrist is evident. The right wrist appears normal in dorsal view.
c. This dorsal photo of the right hand and distal forearm shows relatively mild deformities of the ring and little fingers and marked abnormality of the middle and index fingers (the former appears to be missing) with a double stub on the radial aspect of the hand. The thumb view is partly obscured by the hand.
d. A right lateral view shows a mild forward posture of the trunk and a normal-appearing arm from shoulder to the pre-digital hand including the metacarpals. The only two fingers readily visible in this view are the little and ring fingers, with pronounced flexion of the former and proximal interphalangeal joint flexion of the latter. The previous photograph suggests good ranges of active movement of the joints of these fingers.
e. In this photo the pronated left forearm and dorsal wrist and had are shown. The dorsum of the flexed left wrist shows a rounded prominence perhaps suggestive of a fixed flexion deformity; this would require clarification in a face-to-face clinical examination setting. Apparent muscle wasting in the dorsal left forearm is again evident.
f. A view of the mid-lower supinated right forearm and palmar hand is shown. The thumb is shortened to approximately the level of the interphalangeal joint (a normal thumb has only one such joint), however good muscle definition in the thenar eminence of the thumb is shown, suggestive of relatively normal regular use of this thumb. The hypothenar eminence muscle contour on the ulnar side of the palm also appears within normal limits or nearly so. The little and ring fingers approach normal appearance as noted above; the ring finger appears somewhat larger than average relative to overall hand size, perhaps due to compensatory hypertrophy in childhood. Two short digital stub remnants may arise from the same index finger metacarpophalangeal joint, and there is a gap between these stubs and the ring finger.
g. This is another view of the anterior left elbow, partly supinated left forearm and left hand from a radial palmar perspective. The wrist is again held in moderate flexion. The thumb appears normal apart from possible mild thenar eminence muscle wasting and the other visible fingers are deformed.
h. The left elbow, pronated forearm, flexed wrist in ulno-dorsal view and dorsum of the left hand are shown. The finger deformities are less obvious in this view.
i. This is a dorsolateral view of the left arm mainly showing the upper arm and partial flexion of the thumb across the palm can also be seen. Soft tissue contours of the shoulder and upper arm appear close to normal apart from a proximal skin depression in the arm, which could be due to subdermal soft tissue unevenness.
j. The posterior left upper arm with the shoulder internally rotated and partly forward flexed is of normal or nearly normal appearance. The opposing left thumb can be seen to approach a shortened finger, probably the ring finger.
k. A closer view of the volar left forearm and palmar left hand from an oblique radial perspective shows a near normal thumb appearance, perhaps with some thenar eminence muscle atrophy as noted above. The thumb is partly flexed/opposed across the palm and approaches a rounded prominence on the end of the ring finger, which appears shortened but retains a fingernail. There may be a little collected matter under the left thumbnail suggestive of regular use of this digit. The left little finger is deformed and flexed but also retains a fingernail. The index and middle fingers are deformed and shortened to approximately the mid-point of the middle phalanges.
l. This shows a dorsal view of the left forearm and hand, the latter resting on a table. The left wrist appears less flexed or neutral in position and relatively normal in this view. Finger deformities are as noted above.
Based on a summary of Ms Halliday’s evidence at the hearing and an assessment of the photographs, the HPAU opined the following in respect of Ms Halliday’s’ functional impairment:
Upper limb condition
·The Applicant previously provided care for her father, who has since passed away.
·She can place something into her left hand, but cannot grip or do anything substantive with it. Could hold a tennis ball if pushed into her hand, but is not able to hold a cup or anything. Would struggle to open a packet of meat or something from the fridge. The issue now is that she has tingling and pain down that arm.
HPAU comment: On photographic evidence her left thumb appears close to normal and is opposable. This would permit at least light gripping, including pinch grip. The GP Dr Prakash has noted left wrist osteoarthritis (OA) which may be the major limiting factor for her left hand function. If so this requires specialist clinical clarification on the medical evidence provided to date. If advanced OA is present this could require surgical wrist joint fusion to improve function.
Tingling and pain down the left arm could be related to cervical radiculopathy and carpal tunnel syndrome may be another possibility; both conditions are potentially treatable with medical or surgical procedures if necessary.
·Applicant is currently taking a form of antidepressants that’s apparently good with pain as well.
HPAU comment: An SNRI antidepressant duloxetine and anti-neuropathic pain medications have been prescribed. Both types of medication can be helpful in chronic pain disorders.
·She is mostly reliant upon 1 thumb on right hand.
·To pick up a cup of tea, she picks it up with the two fingers on her right arm. She would not be able to pick it up with her left arm.
HPAU comment: Photographic evidence indicates that her left thumb is functional to some extent, which should be clinically clarified.
·Her coordination with both arms is poor.
Due to her digital deformities this statement has some basis; the extent of loss of function requires clinical correlation, in my opinion. Her shoulders and upper arms appear relatively unaffected.
·Her left wrist is permanently bent. She can’t open/close that hand, but can push things into it.
Photographic evidence suggests that she has retained some degree of left wrist movement at least to approximately the neutral position; see photo 12. Again clinical correlation would be helpful.
·She would struggle unscrewing a lid off a jar. Can use my right arm. But that’s hard to do now with her left arm.
Difficulty unscrewing a jar lid is consistent with a 10 impairment points descriptor under Table 2, viz. (1) (f).
·An occupational therapist [OT] will be coming to her home soon to do an assessment, and provide aids to assist her.
·Previously her children lived with her, and they would assist. They would do things like peel vegetables. She now finds daily chores a lot more challenging.
·Her daughter takes a lot of care of her. She washed and blow dries her hair, otherwise she does it with one arm.
HPAU comment: The OT home assessment, which is presumably part of her NDIS supports, is unlikely to include a clinical examination assessment of her hand function. She requires some assistance from her children with activities of daily living (ADLs), but while living alone still appears to cope with basic routine ADLs and personal self-care.
·She could take a package being delivered to the door and bring it inside. If she had a will, she would find a way to bring it inside.
This is consistent with descriptor point (d) for 5 points or (b) for 10 points, i.e. difficulty with ‘reaching up or out to pick up objects’ and/or ‘picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box)’.
·She has difficulty using a regular keyboard and her daughter is thinking of getting an extra large keyboard to assist her with an iPad.
This is consistent with (1) (e) for 10 points under Table 2.
·She can turn the pages of a book, but would not be able to open a packet of tissues unless one is pulled out already. Some magazines she finds difficult. She uses a kindle to read.
HPAU comment: The second statement seems unlikely as the oval or similar-shaped cardboard cover on a box of tissues is often easily pulled off using a thumb and one finger, depending on the brand purchased, and the top tissues are also easily accessed with a thumb and one finger once the cover is removed. She does not have ‘severe difficulty turning the pages of a book without assistance [from another person]’, hence descriptor point (e) for 20 points does not apply in her case.
·When she had children, her mother would greatly assist and put things around the house to assist (i.e., Velcro nappies).
This is an historical statement. Caring for babies and small children is a strenuous activity and it is not surprising that she would have had more difficulty than the average mother due to her reduced dexterity.
·She is greatly bothered by the pain coming down her neck and into her arm. She believes she has osteoarthritis.
She may well be suffering from radiculopathy pain due to nerve root compression or irritation associated with degenerative cervical spondylosis. As noted in my original report (p. 10), a cervical spine MRI scan report dated 07/11/19, forwarded to me from Dr Prakash’s practice, confirmed foraminal narrowing with C5 nerve root compromise, which is consistent with radiculopathy left arm pain. Radiculopathy limb pain is potentially treatable with procedural interventions such as one or more intraforaminal corticosteroid injections, and specialist assessment would be worthwhile. It is clear that Mrs Halliday had not had such advice or treatment before or during the DSP qualification period in question, therefore it was not fully treated and stabilised at the time, in my opinion.
·Applicant advised she previously worked in catering at the MCG and an aged care home. The hours and demands became too much and she had to stop.
·These seem likely to have been strenuous manual occupations for which she was only marginally suited due to her bilateral upper limb disability, even when younger and fitter. It is by no means surprising that she eventually had to cease doing this work. She is now suited only to part-time light manual or non-manual work.
The Respondent, relying upon the comments made in relation to the photographs in the supplementary HPAU report, argued that purely visual evidence is insufficient in determining the actual functional impairment of Ms Halliday’s conditions. Therefore, the Responded contended minimal weight should be given to the photographs when considering the impairment rating under the Impairment Tables. The Respondent maintained its view that Ms Halliday’s condition of phocomelia can be assigned a rating of 10 points under Table 2.
The Respondent submitted that no evidence has been given by the Applicant which supports a rating of 20 points under Table 2 as she does not meet most of the following descriptors:
(a)Descriptor (1)(b) – there is no corroborated evidence that the Applicant has severe difficulty handling objects when using a prosthesis or assistive device;
(b)Descriptor (1)(c) – there is no corroborated evidence that the Applicant has difficulty using a computer keyboard with appropriate adaptations;
(c)Descriptor (1)(d) – there is no corroborated evidence that the Applicant has severe difficulty using a pen or pencil; and
(d)Descriptor (1)(e) – there is no corroborated evidence that the Applicant has severe difficulty turning the pages of a book without the assistance of another person.
It is not the Tribunal’s task to make a clinical assessment of a person’s illness or disability, as medical practitioners are required to do. The Tribunal’s task in terms of determining an Applicant’s eligibility for DSP is to decide whether particular descriptors are satisfied as stipulated in the Impairment Tables. The grant of a DSP is not on the basis that a person has a particular diagnosed condition, but on an assessment of functional limitations a diagnosed condition has on an individual which results in them having an inability to work. Therefore, the purpose of the Impairment Tables, which are a legislative instrument to which the Tribunal must have regard, is to assess that inability to work, and the way that is done is by setting out functional abilities. It may be accepted that this is not a perfect measure of a person’s functional impairment, but it is the one that the Tribunal is obliged to follow. Where a particular Impairment Table requires that “most” of the descriptors must be met for a rating to be assigned, that plainly means that more than 50 percent of the descriptors must be satisfied.
The Tribunal was somewhat concerned by the HPAU’s supplementary report, as it appeared the HPAU was attempting a clinical, rather than a functional assessments of Ms Halliday; stating on numerous occasions: “Again clinical correlation would be helpful”.
The Tribunal did not limit the weight placed on the HPAU assessment because it was based on a file review and undertaken by an employee of Services Australia as argued by Senior Member Fice in Ljubovic and Secretary, Department of Social Services [2015] AATA 1025.. The Tribunal found the HPAU’s evidence to be of assistance and concurs with Deputy President Alpins in the matter of Alicier and Secretary, Department of Social Services [2017] AATA 538 at [135], where she concluded:
Every case will depend upon the nature of the evidence before the Tribunal, although the probative value of reports prepared by the Unit is necessarily affected to some degree by the lack of clinical assessment of the claimant in question.
The Tribunal was not persuaded by the HPAU supplementary report, which again found that Ms Halliday’s impairment was only moderate. Given the HPAU’s earlier report had concluded: it is likely that a substantial related degree of permanent upper limb impairment does exist, although corroborating evidence is somewhat limited. Relevant information from Dr Prakash includes “deformity in both hands and left arm, loss of fingers in right and lef[t] hand movement cause pain with left arm” […] “she cannot use her both hands for holding things, c/o [complains of] pain moving up the arm due to her hand disability”. The Tribunal finds the photographic evidence of the extent of Ms Halliday’s deformity provided corroborating evidence as sought by the HPUA to make a determination there was a degree of permanent upper limb impairment.
Having considered all the evidence before it, the Tribunal is satisfied that Ms Halliday’s congenital upper limb condition (phocomelia) was fully diagnosed, treated and stabilised during the qualifying period, relying upon numerous reports including her medical history describing the condition as present since 1957, Dr Prakash’s medical certificates, and the finding of the HPAU reports.
The Tribunal considers that the functional impact of this condition was best assessed under Table 2 of the Impairment Tables.
The Tribunal considers that Ms Halliday’s has a severe functional impact on activities requiring the use of her hands and arms in accordance with Table 2. Ms Halliday reported that during the qualifying period:
(a)She had limited movement and coordination in both arms and hands. She is totally reliant on one finger on her right hand, her left wrist is permanently bent so that she can’t straighten it or open or close her left hand, she struggles to perform housework, and her daughters have to assist her with all activities such as washing her hair and shaving her legs. She stated: “I say to people bandage both hands, put your arm in a sling and do that for a week and see how you go and tell me it’s worth 10 points.”
(b)She had great difficulty with moving, carrying or handling objects; she has had to adapt over time, for example, she stated at the hearing that “I have had to learn to adapt. I don’t wear anything with zips or buttons.”
(c)She has never been able to use a computer keyboard and struggles with her phone.
(d)Over time she has found using a pen or pencil more difficult.
(e)She can turn the pages of a book though she has difficulties, so she uses a Kindle. She can’t turn the pages of a magazine or get a tissue out of a tissue box, as anything requiring a bit of dexterity is difficult.
The Tribunal does not concur with the HPAU’s finding, or the Respondent’s argument that Ms Halliday’s statement as quoted in the HPAU supplementary report that, “She could take a package being delivered to the door and bring it inside. If she had a will, she would find a way to bring it inside” indicated a moderate rather than severe rating for this descriptor. The Tribunal considers that just because Ms Halliday may find a way to struggle to lift a large object on a one-off occasion, this is not an indication that she could manage to lift objects generally. This was not her evidence to the Tribunal. The Tribunal considers that rule 11(3) for applying the Impairment Table, should be considered when making a determination in respect of this claim:
Descriptors involving performing activities rule
When determining whether a descriptor applies involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: if, under table 2 a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned with a person are generally able to do the act activity whenever they attempt it
The HPAU report of 3 March 2020 opined:
In my opinion a continuing inability to work (CITW), as defined, was not clearly established during the DSP qualification period in question (13 February 2019 to 14 May 2019) due to reasonable prospects at the time of additional medical management substantially improving Mrs Halliday’s work capacity within a 2-year timeframe.
The Respondent relied upon the following comments by the HPAU assessor on 3 March 2021:
With ongoing medical, psychological and disability employment service support, it is considered reasonably likely that she would have been able to continue in a program of support to a degree sufficient to improve her part-time work capacity to the 15 hours per week threshold within a 2-year timeframe. This would have depended on adequate control of her alcohol use, mental health issues, pain and bowel symptoms.
The Respondent contended that the opinion of the JCA report should be strongly regarded, as the assessor has “specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity” as described in Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642 at [28].
The Respondent also relied on the authority in Muir and Secretary, Department of Employment and Workplace Relations [2005] AATA 902 where the Tribunal stated at [43]:
The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.
Further, the Respondent contended that the functional impairments arising from Ms Halliday’s conditions do not prevent her from:
(a)Undertaking work of at least 15 hours per week within two years; or
(b)Undertaking a training activity that would equip her to work 15 hours per week within two years.
On 5 March 2021, the Employment Consultant from DVJS Employment Solutions advised the following:
I am writing to you regarding Mrs Kerrie Halliday, who has participated in the Disability Employment Support program with DVJS Employment Solutions since the 26th of March 2020.
Mrs Halliday has taken part of the program required to the best of her ability. When interactions took place, Mrs Halliday had high levels of anxiety and it was evidently extremely difficult for her due to her emotional and physical conditions. The program included attending fortnightly appointments, being involved in career counselling, and undertaking her health maintenance program to manage her medical condition. Mrs Halliday really struggled to undertake these activities, due to her high anxiety, depression and physical limitations. She reported having panic attacks on various occasions when she attempted to leave her house. During a lot of interactions Mrs Halliday was very upset and highly emotional and anxious. There were times when appointments needed to be rescheduled as she could not even leave her house or speak to us over the phone due to her high anxiety and physical pain.
Mrs Halliday has always complied with the requirements as per her job plan, however despite her efforts she has been unable to improve her possibilities for employment as her medical conditions alone prevents her from being able to work.
Mrs Halliday has taken part of the program with DVJS for nearly 12 months and it has been evident to us that her medical condition prevents her from improving her capacity to work. We fully support her claim for the Disability Support Pension as we feel she would not benefit from further Disability Employment Support due to her severe and limiting physical, mental health barriers and limited endurance. It has been a difficult process for her, and we feel Mrs Halliday has done as much as possible within her limitations although her mental health has suffered.
The Respondent contended that the opinion of the Employment Consultant from DVJS dated 5 March 2021 should not be preferred as it was based upon Ms Halliday’s commencing a program of support after the qualification period, actively participating for nearly 12 months, and then an assessment in 2021 that she was no longer able to improve her capacity to train or work.
The Respondent contended that Ms Halliday did not satisfy paragraphs 94(2)(a) and 94(2)(b) of the Act and did not have a continuing inability to work during the qualification period. On that basis, she did not satisfy paragraph 94(1)(c) of the Act during the qualification period.
The Tribunal considered the nature and the severity of Ms Halliday’s complex conditions and their impact on her physical and mental functionality and finds that they alone would prevent her from benefiting from a program of support , as the program would not improve her capacity to prepare for or find work. In reaching this determination, the Tribunal relies upon:
(a)The assessment of the JCA assessor (who is considered to have specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s work capacity) of 7 June 2019, who identified serious functional impacts of Ms Halliday’s numerous medical condition which they recognise would present complex barriers and restrictions on her ability to work.
(b)Dr Kothrakis report of 5 January 2018:
From a psychological perspective, Ms Halliday is not fit for any type of employment. Her physical impairment and the deterioration of her circumstances is a constant reminder of what she is not able to achieve and reinforces her perceived inadequacies which become detrimental to her wellbeing
(c)The supplementary report of the HPAU which commented in relation to her previous employment in catering and an aged care home that “It is by no means surprising that she eventually had to cease doing this work. She is now suited only to part-time light manual or non-manual work”.
While the letter of advice from Ms Halliday’s disability service provider was outside of the qualification period, it was relied upon by the Tribunal as it reinforced the issues identified by Ms Halliday’s treating medical professionals and the JCA during the qualification period who identified that Ms Halliday’s medical conditions prevent her from improving her capacity to work.
Therefore, the Tribunal finds that Ms Halliday, in accordance with subsection 7(5) of the POS determination, is a person who was prevented, solely because of her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program; and that she subsequently satisfies s 94(3C) of the Act.
Given all these factors, the Tribunal is satisfied that Ms Halliday has a continuing inability to work for the purposes of section 94(1)(c)(i) of the Act.
CONCLUSION
The Tribunal is satisfied that, at the date of application, Ms Halliday was qualified to receive the DSP as her impairments attracted 35 points under the Impairment Tables, she was not required to undertake a program of support as her upper limb impairment was considered severe, and she had a continuing inability to work.
DECISION
The Tribunal sets aside the decision under review and remits the matter for reconsideration with a direction that the Applicant satisfies section 94(1)(a), (b) and (c) of the Act.
I certify that the preceding 146 (one hundred and forty-six) paragraphs are a true copy of the reasons for the decision herein of Ms Anna Burke AO, Member
...........[sgd]............................
Associate
Dated: 15 October 2021
Date of hearing: 12 July 2021
Date of final submission: 20 September 2021
Applicant: By Telephone
Advocate for the Respondent: Mr Alan Quanchi
Solicitors for the Respondent: Services Australia
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