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

Case •

[2020] AATA 108

•

24 January 2020

Horner; Secretary, Department of Social Services and (Social services second review) [2020] AATA 108 (24 January 2020)

Division:  GENERAL DIVISION

File Number:      2017/5592

Re:         Secretary, Department of Social Services

APPLICANT

And        Sarah Horner

RESPONDENT

Decision

Tribunal:  Member I Fletcher

Date:      24 January 2020

Place:     Perth

The AAT1 Decision is affirmed.

.......................................................................

Member I Fletcher

CATCHWORDS

SOCIAL SECURITY – disability support pension – relevant period – fibromyalgia – gastroenterological condition – mental health condition – vertigo – continuing inability to work – whether party has an impairment rating of 20 points or more under the Impairment Tables – AAT1 decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c),
s 94(1)(c)(i), s 94(2), s 94(2)(a), s 94(2)(b), s 94(2)(b)(i), s 94(2)(b)(ii), s 94(2)(aa),
s 93(3A), s 94(3B), s 94(3C), s 94(5)

Social Security (Administration) Act 1999 (Cth) – Schedule 2, cl 4(1)

CASES

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

Crossland and Secretary, Department of Family and Community Services [2004] AATA 864

Department of Family and Community Services v Michael (2001) 116 FCR 500

Fanning and Secretary, Department of Social Services [2014] AATA 447

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Hamal and Secretary, Department of Social Services (1993) 30 ALD 517

Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404

Kuzmanovic and Secretary, Department of Social Services [2016] AATA 749

Perich and Secretary, Department of Social Services [2018] AATA 963

Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466

Watts and Secretary, Department of Family and Community Services (2003) AATA 632

Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846

SECONDARY MATERIALS

Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.231– 3.6.2.112

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Table 1, Table 3, Table 10, s 3, s 5(2),
s 6, s 6(1), 6(2), s 6(3), s 6(4), s 6(5), s 6(5), s 6(6), s 6(7), s 6(8), s 8(1), s 10(1), 11(1)(c), s 11(4), s 11

REASONS FOR DECISION

Member I Fletcher

Date 24 January 2020

background to the application

  1. Ms Horner (the Respondent) is 35 years old (T19, 142).

  2. On 4 May 2016, the Respondent lodged her claim for Disability Support Pension (DSP) (T6, 62 - 92). The Respondent listed her disabilities, illnesses or injuries as fibromyalgia, depression, post-traumatic stress disorder (PTSD) and soft tissue injuries to her back, neck, wrists, forearms and knees (T6, 88).

  3. On 28 October 2016, a Job Capacity Assessment (JCA) was conducted by a registered psychologist, in conjunction with a registered occupational therapist (T11, 102 - 110). In the report dated 23 November 2016, the assessors concluded:

(a)       the fibromyalgia condition was fully diagnosed, but not fully treated or fully stabilised (T11, 103);

(b)       the symptoms of irritable bowel syndrome, gastritis and gastroesophageal reflux disease (collectively the gastroenterological condition), was not fully diagnosed, fully treated or fully stabilised (T11, 103 - 104);

(c)       depression and post traumatic disorder syndrome (the mental health condition) was fully diagnosed, but not fully treated or fully stabilised (T11, 104); and

(d)       the vertigo condition was not fully diagnosed, fully treated or fully stabilised
(T11, 105).

  1. The assessors concluded that the Respondent had a temporary work capacity of
    0-7 hours per week, a baseline work capacity of 15 - 22 hours per week and a capacity for work within 2 years with intervention of 23 - 29 hours per week (Exhibit A1, 107).

  2. On 30 November 2016, the Respondent's claim for DSP was rejected by the Department of Human Services – Centrelink (the Department) (T12, 109 - 110). The Respondent requested an internal review of that decision.

  3. On 23 February 2017, the decision was affirmed by an Authorised Review Officer (ARO) (T14, 118 - 123). The ARO found the fibromyalgia condition was fully diagnosed, but was not fully treated or fully stabilised, the gastroenterological condition was not fully stabilised, the mental health condition was fully diagnosed, but not fully treated or fully stabilised and the vertigo condition was not fully diagnosed, fully treated or fully stabilised (T14, 120 - 121). Accordingly, the ARO found an impairment rating could not be assigned. The ARO further found that the Respondent had not actively participated in a Program of Support (POS) and did not have a continuing inability to work (CITW).

  4. On 22 February 2017, following the receipt of further medical evidence a further JCA was conducted by a registered psychologist, in conjunction with a registered occupational therapist (T15, 124 - 134). In the report dated 27 February 2017, the assessors reached the same conclusion as found in the first report by the Department, dated 30 November 2016 (T12, 109 - 110). The assessors also found the Respondent had a baseline work capacity of 15 - 22 hours per week and a capacity for work within 2 years with intervention of 23 - 29 hours per week (T15, 131 - 132).

decision under review

  1. The decision under review is the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (the AAT1) (the Reviewable Decision) on 15 August 2017. The AAT1 decision set aside the decision by an officer of the Department to reject the Respondent's claim for DSP (the Department) (T2, 4 - 16). The AAT1 found:

    (a)       the fibromyalgia condition was fully diagnosed, fully treated and fully stabilised and attracted an impairment rating of 20 points under Table 1 - Functions requiring Physical Exertion and Stamina (T2, 14);

    (b)       the gastroenterological condition was fully diagnosed, fully treated and fully stabilised and attracted an impairment rating of 5 points under Table 10 - Digestive and Reproduction Function (T2, 7);

    (c)       the mental health condition and the vertigo condition were not fully treated or fully stabilised (T2, 6 - 8); and

    (d)       the Respondent had a continuing inability to work (T2, 15).

  2. Accordingly, the AAT1 found the Applicant satisfied ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (the Act) and remitted the matter to the Department for reconsideration (T2, 15).

  3. On 19 September 2017, the Applicant lodged an application for a second review in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal) (T1, 1 - 3).

MATERIALS BEFORE THE TRIBUNAL

  1. At the hearing, the Tribunal accepted the following documents into evidence;

    (a)       section 37 documents (T - documents) (T1 - 21, pp 1 - 162), received by the Tribunal on 13 August 2019 (Exhibit A1);

    (b)       Supplementary T - Documents (ST1 - 13, pp 1 - 25) dated 13 August 2019 (Exhibit A2);

    (c)       Supplementary T - Documents (ST14 - 16, pp 26 - 246) dated 13 August 2019 (Exhibit A3);

    (d)       Supplementary T - Documents (ST17 - 18, pp 247 - 618) dated 13 August 2019 (Exhibit A4);

    (e)       Supplementary T - Documents (ST19 - 21, pp 1 - 50) dated 13 August 2019 (Exhibit A5);

    (f)        a copy of the Applicant’s Statements of Fact, Issues and Contentions, dated
    28 September 2018 (Exhibit A6)

    (g)       a copy of a medical letter by Dr John Hayes, dated 20 August 2018 (Exhibit A7);

    (h)       a copy of a briefing letter to Dr John Hayes, dated 14 August 2018 (Exhibit A8);

    (i)        a copy of a briefing letter to Dr John Hayes, dated 2 March 2018, and handed up at the hearing on 22 November 2019 (Exhibit A9);

    (j)        Guidelines to the Tables of Work-related Impairment, handed up at the Tribunal hearing on 22 November 2019 (Exhibit A10);

    (k)       a copy of the Respondent’s Statements of Fact, Issues and Contentions, dated
    5 March 2019 (Exhibit R1)

    (l)        a copy of a report by Dr John Hayes, dated 20 August 2018 (Exhibit R2);

    (m)      a copy of a briefing letter to Dr John Hayes, dated 14 August 2018 (Exhibit R3);

    (n)       a copy of a letter by Dr Eugene Ang, dated 23 May 2018 (Exhibit R4);

    (o)       a copy of an email from the Respondent with attachments (Exhibit R5);

    (p)       a copy of a letter by Dr Genevieve Hankey, dated 25 October 2017 (Exhibit R6);

    (q)       a copy of a letter by Dr Eugene Ang, dated 5 October 2017 (Exhibit R7); and

    (r)        a copy of a statement by the Respondent handed up at hearing on
    22 November 2019 (previously emailed to the Tribunal on 20 November 2018) (Exhibit R8).

ISSUE

  1. The issue before this Tribunal is whether the Respondent was qualified or became qualified for the payment of DSP within the period 4 May 2016 and 3 August 2016
    (13 weeks after that date). This depends on whether the Respondent satisfied s 94 of the Act, in particular whether the Respondent had:

    (a)       physical, intellectual or psychiatric impairments; and

    (b)       impairments arising from fully diagnosed, treated and stabilised conditions that attract an impairment rating of at least 20 points under the Impairment Tables; and

    (c)       a continuing inability to work.

Relevant period

The Applicant

  1. A person's qualification for DSP is to be considered as at the date of claim and during the ensuing 13 weeks from the date when the claim was made, in accordance with cl 4(1) in sch 2 to the Social Security Administration Act 1999 (Cth) (the Administration Act):

    4. Start date - early claim

    (1) If:

    (a) a person (other than a detained person) makes a claim for a relevant social security payment; and

    (b) the person is not, on the day on which the claim is made, qualified for the payment; and

    (c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and

    (d) the person becomes so qualified within that period;

    the claim is taken to be made on the first day on which the person is qualified for the social security payment.

    (Original Emphasis.)

  2. The Applicant contended that the effect of these provisions is that the Respondent's qualification for DSP is to be solely determined during the period 4 May 2016 to
    3 August 2016 (the qualification period).

  3. In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (Bobera), the Tribunal noted that:

    In the Tribunal's consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks) ....If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant (or the respondent as in this present scenario) to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

    (Emphasis Added.)

  4. The Tribunal in Bobera makes it clear that it can only consider a person’s qualification for DSP within the relevant period.

  5. In Fanning and Secretary, Department of Social Services [2014] AATA 447,
    Deputy President Handley noted at [31]:

    In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that a respondent must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the respondent's condition during the relevant period.

    (Emphasis Added.)

  6. The approach in Fanning was cited with approval by Besanko J in Gallacher and Secretary, Department of Social Services [2015] FCA 1123, [27] - [28].

  7. The Applicant contended that when assessing a person's qualification for DSP, the Tribunal is limited to considering the diagnosis, treatment, and functional impact as it existed at the date of claim and the 13 weeks thereafter. Medical evidence dated outside this period may be relevant, but only to the extent that it refers to a person's conditions and impairments as at the date of claim and the further 13 weeks. If an individual's circumstances change, for example if their condition deteriorates, then the appropriate course is for those circumstances to be considered by way of a fresh claim.

Qualification for disability support pension

  1. The qualification criterion for DSP is set out in s 94 of the Act.

  2. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination) contains the impairment tables (the Impairment Tables) and the rules for applying the Impairment Tables when deciding if a person is qualified for a DSP. The Impairment Tables are function based rather than diagnosis based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions (s 5(2) of the Impairment Tables).

  3. "Impairment" is defined to mean a loss of functional capacity affecting a person's ability to work that result from the person's condition (s 3 of the Impairment Tables).

  4. Section 6(1) of the Determination requires that a person's impairment be assessed on the basis of what the person can or could do, not on the basis of what the person chooses to do or what others do for the person. The Impairment Tables may only be applied after the person's medical history has been considered (s 6(2) of the Determination).

  5. An impairment rating can only be assigned to an impairment of the person’s condition causing that impairment is permanent (that is, it is fully diagnosed, treated and stabilised and likely to persist for more than 2 years), and the impairment resulting from that condition is also more likely than not to persist for more than 2 years (ss 6(3) and 6(4) of the Determination).

  6. In determining whether a condition has been fully diagnosed and fully treated, the following must 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 (s 6(5) of the Determination).

  7. 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 either:

    (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 (s 6(6) of the Determination). Section 6(7) of the Determination defines the meaning of reasonable treatment.

  8. The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).

Contentions

  1. Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence as defined in each Table (s 8(1) of the Determination).

  2. The Applicant accepted that the Respondent suffered from a number of conditions causing impairment during the qualification period and therefore s 94(1)(a) of the Act was satisfied.

  3. The Applicant contended that the only condition that was fully diagnosed, fully treated and fully stabilised as at the qualification period was the fibromyalgia condition, and that the resulting impairment attracts an impairment rating of no more than 10 points under Table 1 - Functions requiring Physical Exertion and Stamina.

  4. Accordingly, the Applicant contended that s 94(1)(b) of the Act is not satisfied.

  5. In addition, although it is strictly unnecessary to decide the issue, the Applicant further contended that the Respondent had not actively participated in a POS and did not have a CITW as defined by s 94(2) of the Act. Therefore, s 94(1)(c) of the Act is not satisfied.

  6. Accordingly, the Applicant has contended that the Respondent did not meet the relevant qualification criteria for DSP as at the qualification period, and the decision of the AAT1 should be set aside and the Respondent's claim for DSP rejected.

Fibromyalgia condition

  1. The Applicant accepted that the Respondent's fibromyalgia condition was fully diagnosed, fully treated, and fully stabilised as at the qualification period. The Applicant has contended that the Respondent's impairment arising from this condition can be assigned an impairment rating of no more than 10 points under Table 1 - Functions requiring Physical Exertion and Stamina.

  2. In a letter dated 14 April 2016, Mr Travis King, accredited exercise physiologist, reported the Respondent presented with (ST18, 432):

    (a)       an average pain of 2 - 3 out of 10, maximum pain 9 out of 10;

    (b)       a maximum cleaning time of 18 minutes;

    (c)       a maximum sitting time of 19 minutes; and

    (d)       a maximum gardening time of 8 minutes.

  3. Mr King also reported that the Respondent's current physical activities include a gym based exercise program of 6 days per week, and a walking regime of 14 minutes daily.

  4. In a medical certificate dated 18 April 2016, Dr Hankey described the Respondent’s symptoms as ‘Fatigue, joint pain, inability to cope with driving for longer than 5 minutes due to pain in shoulders/back/wrists’ (T5, 61).

  5. In a letter dated 15 June 2016, Ms Jane Muirhead, principal occupational therapist recorded the functional tolerances of the Respondent as follows (T8, 97):

    (a) sitting - restricted to 15 minutes before needing to stand up and move around;

    (b) walking - 10 minutes;

    (c) standing - 5 minutes;

    (d) working at computer - 10 - 15 minutes, wrist and forearm pain restrict prolonged usage;

    (e) driving - 15 minutes before significant increase of pain.

  6. In a document dated 17 February 2017, Dr Hankey summarised the management of the Respondent's various conditions and recorded that the Respondent had improved from
    ‘2 x 5 minute walk per day to 2 x 10 minute walks per day’ but had relapses due to pain (T13, 112).

  7. In the JCA report dated 27 February 2017, the assessor recorded that the Respondent indicated that she exercised twice a day, which involved walking for 10 minutes, and that she goes to yoga (T15, 125). The assessor also recorded the following in relation to functional impact on the Respondent:

    (a)       the Respondent reported (T15, 126):

    (i)        on the better days she is able to engage in activities such as walking around a shopping centre, socialising with friends, independently shopping for groceries in a supermarket and going to see a movie in a cinema;

    (ii)       she is able to pick up items from the floor, prepare meals independently, use public transport independently and drive independently, she reports that her parents live 30 minutes away and she drives there frequently;

    (iii)       she is usually able to hang out washing but she would seek assistance to hang out sheets; and

    (iv)      she lives on her own and…is able to self-care independently.

    (b)       Doctor Hankey reported that the Respondent does not require assistance with activities of daily living, noting her symptoms and functional impacts were unpredictable (T15, 133).

  8. In a letter dated 29 March 2017, Dr Stephen Schug, consultant - pain management, reports that the Respondent lives on her own, looks after her household with some help from her parents and has increased her physical activities in a paced way and is now doing an 11 minute walk twice a day (ST17, 299).

  1. In a letter dated 10 August 2017 (T17, 136 - 137), Dr Hankey opined that the fibromyalgia condition had a severe functional impact stating:

She is often fatigued performing light physical activities like going to the supermarket, or cooking, or walking her dogs for less than 10 minutes. She is unable to perform light day to day house hold activities like cleaning or preparing food, and is unable to garden. Her parents have been coming to her house to help her clean and keep the place in order for the last 2.5 years. She has never been able to wash the floors for example, and relies heavily on her parents to help her with gardening, cleaning, doing the dishes, helping to prepare food for herself and her dogs. Samantha is able to pick up after the dogs but unable to do any other work outside. She also is only at times able to walk around a shopping centre or from the carpark into the supermarket without assistance. She has an ACROD sticker due to severe pain walking long distances (ie when she has pain and weakness, walking any distance is difficult), but walking the shortest distance from the carpark is ideal. However on some days she is too tired and sore to be able to walk at all from the carpark or around the shopping centre, and mobility aids do not assist her. She owns crutches but only uses them for stairs, but if she uses them it is still difficult, as these put a lot of pressure on her wrists and she needs to wear a wrist brace while using them; and then will be unable to use her wrists easily for the next few days. She cannot use a wheelchair as she can't push it herself. She could potentially use a mobility scooter but is unable to finance this.

  1. In a further letter dated 25 October 2017, Dr Hankey again opined that the fibromyalgia condition had a severe functional impact on the Respondent stating (ST18, 602):

    She usually experiences symptoms (fatigue, muscular pain, joint pain) when performing light physical activities and is therefore frequently unable to walk around a shopping centre or supermarket without assistance, walk from the carpark into a shopping centre without assistance, or to use public transport without assistance. She is never able to perform light day to day household activities including putting away laundry or doing gardening.

  2. In an independent medico-legal report dated 19 March 2018, Dr John Hayes, consultant rheumatologist, opined that the Respondent had a ‘demonstrated moderate functional impact during the qualification period with a score of 10 points’ (ST14, 32).

  3. The Applicant has contended that the vast weight of the medical evidence supports an impairment rating of no more than 10 impairment points under Table 1. While the Respondent's treating general practitioner, Dr Hankey, opines that the Respondent's suffers from a severe functional impact from the fibromyalgia condition, the Applicant contended that this assessment is contrary to the functional impact described by:

    (a)       Mr King, accredited exercise physiologist, in his letter produced a month prior to the qualification period (ST18, 432 - 433);

    (b)       Ms Jane Muirhead, principal occupational therapist, in her letter produced during the qualification period (T8, 97 - 98);

    (c)       Dr Stephen Schug, consultant pain management, in his letter produced
    (ST17, 299 - 300);

    (d)       the Respondent as recorded by the JCA assessors in their report; and

    (e)       Doctor John Hayes, consultant rheumatologist, in his independent medico-legal report that specifically assessed the functional impact on the respondent as at the qualification period following consultation with, and examination of, the Respondent in addition to a review of the available medical evidence contained within the T-documents (ST4, 26 - 33).

    (Emphasis Added.)

  4. Further, the Applicant has contended that the independent medico-legal report authored by Dr Hayes is to be preferred to the various letters authored by Dr Hankey to assist the Respondent with her DSP claim. As the Deputy President Boyle and Senior Member Evans observed in Perich and Secretary, Department of Social Services [2018] AATA 963 at [44] - [45] the advantage of such independent reports is that they are unaffected by therapeutic bias and treatment advocacy, placing the author in a ‘more objective position because they do not have a relationship with the patient’. While acknowledging that such reports are limited by the nature for which they are commissioned and the limited time spent with the patient, the Applicant has contended Dr Hayes reached his expert opinion following a comprehensive review of the available medical evidence and examination of the Respondent. Doctor Hayes concluded that during the qualification period the Respondent experienced ‘frequent symptoms of fatigue and widespread pain and had difficulty performing day-to-day household activities but was able to use public transport and walk and perform activities not requiring a high level of physical exertion’. Accordingly, the Applicant contends the Respondent can be assigned an impairment rating of no more than 10 points under Table 1.

Gastroenterological Condition

  1. The Applicant contended the gastroenterological condition remained under investigation as at the qualification period and therefore, was not fully diagnosed, fully treated or fully stabilised.

  2. In a letter dated 13 November 2015, Dr Hankey reported that the Respondent's ‘gastrointestinal upset’ was ‘being investigated’. Doctor Hankey noted that she had been referred to a specialist and was waiting to be assessed (ST18, 589).

  3. In a letter dated 14 March 2016, Dr Andre Chong, gastroenterologist and interventional endoscopist, opined that ‘[I]t is difficult to say what her episode of melaena and hematochezia were during the Christmas period. It is possible that she may have had an acute viral infection. However her symptoms are not typical for inflammatory bowel disease’ (ST18, 430).

  4. In a medical certificate dated 18 April 2016, Dr Hankey stated '[G]astrointestinal issues being investigated currently has been hospitalised in December 2015 due to this’ (T5, 61).

  5. In a medical report dated 26 May 2016, Dr Hankey stated the Respondent was ‘waitlisted to see a specialist in 2015, and was seen by Dr Andre Chong again in 2016’ (T7, 95). Doctor Hankey goes on to state (T7, 95):

    She was investigated with a gastroscopy and colonoscopy by Dr Chong on 21/4/16 - there was no evidence of coeliac disease or similar pathology; but gastritis was still evident. Although she was not diagnosed with coeliac disease she has found avoiding wheat and gluten has helped. She is currently on a ketogenic diet.

  6. In the JCA report dated 23 November 2016, the assessor found the condition was fully diagnosed but ‘there has been some functional improvement in reducing symptoms associated with diet changes (omission of gluten/wheat) and following a ketogenic diet'. Accordingly, the assessor found the condition was not fully treated or fully stabilised
    (T11, 104).

  7. In a document dated 17 February 2017, Dr Hankey summarised the management of the Respondent's ‘gastrointestinal issues’ noting that the Respondent had undergone an endoscopy and colonoscopy in April 2016. The test showed gastritis and one colonic polyp but no other abnormalities and the Respondent did not have coeliac disease. The document states that the Respondent was diagnosed with non-coeliac gluten sensitivity (T13, 117). The document does not state the condition has any specific functional impact on the Respondent.

  8. In a Chronic Disease Management GP Management Plan dated 17 February 2017,
    Dr Hankey noted that the Respondent had been referred to an endocrinologist, but was yet to make an appointment (ST18, 455).

  9. In a JCA report dated 27 February 2017, the assessor found concurrent investigations were occurring and that functional improvements were achieved following diet changes and following a ketogenic diet (T15, 127). The assessor also recorded that Dr Hankey stated the Respondent is ‘no longer using medication for this condition and only requires it during flare ups’, that ‘between flare ups there are no functional impacts of this condition’ and she ‘has not had a flare up of this condition for one year’ (T15, 127).

  10. Doctor Hankey in her ‘Medical letter of support’ dated 10 August 2017, she states that the Respondent's gastrointestinal condition ‘manifests itself in having abdominal pain after every meal or every time she ingests food, despite choosing gluten free food' (T17, 138). Doctor Hankey goes on to state that the condition ‘interrupt[s] her attention and concentration on a task at least once per day, more often at least three times per day’ (T17, 138).

  11. The Applicant contended that as at the qualification period the gastroenterological condition remained under investigation and cannot be found to be fully diagnosed. Even if the Tribunal were to disagree, the medical evidence does not support a finding that the condition was fully treated or fully stabilised. Accordingly, the Applicant has contended that an impairment rating cannot be assigned to any impairment caused by this condition.

Mental Health Condition

  1. The Applicant accepts that the Respondent was diagnosed with depression, anxiety and PTSD and the medical evidence confirms she has had regular psychological counselling.

  2. In the JCA report dated 23 November 2016, the assessors found there was no evidence that the Respondent had engaged in other interventions such as psychiatric review and pharmaceutical treatment (T11, 104).

  3. In a request for an outpatient appointment dated 18 January 2017, Dr Hankey requested a referral to a Pain Clinic/Pain Specialist at Fiona Stanley Hospital/Rockingham General Hospital. In the reason for referral Dr Hankey stated the Respondent was ‘averse to SSRls as her fiancé committed suicide after commencing sertraline’ and that she was commencing her on pregabalin (ST18, 450). Doctor Hankey further stated the she hoped the Respondent would reconsider medication (ST18, 450).

  4. In a document dated 17 February 2017, Dr Hankey summarised the management of the Respondent's mental health condition and states that the Respondent has (T13,115):

    (a)       trialled Endep for pain relief and sleep, but not as an antidepressant;

    (b)       trialled benzodiazepines for anxiety with little benefit/not interested in continuing use; and

    (c)       NOT trialled antidepressants (SSRls/SNRls) as concerned re: side effects.

  5. In the JCA report dated 27 February 2017, the assessors recorded the Respondent's
    self-report that the mental health condition ‘has not impacted her ability at work’ and that it does not affect her day-to-day functioning but can intermittently impact her motivation, plus her anxiety can occasionally restrict her activity (T15, 130). The assessors also recorded that further information was sought from Dr Hankey, who stated that
    (T15, 129 - 130):

    (a)       the Respondent ‘declined to use antidepressant medication due to past negative experiences with someone close to her who used antidepressant medication’;

    (b)       she would like the Respondent to try this medication ‘but cannot make her’; and

    (c)       she agrees with the Respondent statement that the mental health condition does not impact her ability to work.

  6. In a letter dated 11 August 2017, Dr Hankey stated as follows in relation to the Respondent's mental health condition (T17, 138):

    [The Respondent] does also have anxiety, depression and post-traumatic stress disorder which at times causes her significant functional impairment. She has undergone extensive counselling and still regularly sees a counsellor, and as such she manages these conditions as well as she can. Having said that, she can at times be very limited in her ability to function in day to day life, with trouble looking after herself. However these periods are not frequent enough to warrant full review with regards to functional impairment, but they are worth noting in that they can be a factor in her ability to function well.

  7. In the Individual Prescribing History, complied from data supplied by the Department of Health, for the period from 1 January 2010 to 25 May 2018:

    (a)       there is no record that the Respondent filled a prescription for amitriptyline or gabapentin;

    (b)       there is no record prior to 17 January 2017, that the Respondent filled a prescription for pregabalin; and

    (c)       there is no record that the Respondent filled a prescription for any other antidepressant.

  8. As at the qualification period the Respondent had not trialled any pharmacological treatment in relation to her mental health condition, only commencing a trial of pregabalin in January 2017. Accordingly, the Applicant contended that the Respondent's mental health condition was not fully treated or fully stabilised as at the qualification period. Even if the Tribunal were to disagree, the Applicant has contended that an impairment rating of no more than zero points could be assigned under Table 5 - Mental Health Function given the limited functional impact described by the Respondent and Dr Hankey.

Vertigo condition

  1. The Respondent did not record that she suffered from vertigo in her claim for DSP
    (T6, 88), nor is it noted within the accompanying medical report authored by Dr Hankey (T7, 93-96).

  2. In a further supplementary medical report dated 7 July 2016, Dr Hankey noted that in addition to the other conditions that affected the Respondent, she was also sporadically affected by vertigo. Doctor Hankey stated that the Respondent had suffered from vertigo since January 2014, however ‘[F]ortunately she has this much less frequently since mid-2014’ and that '[S]he feels she develops vertigo around once a year’ (ST18, 595).

  3. In the JCA report dated 23 November 2016, the assessor found there was insufficient evidence to find the condition was fully diagnosed, fully treated or fully stabilised because there had been (T11, 105):

    (a)       ‘insufficient evidence to determine if this condition [vertigo] has been appropriately reviewed by a specialist which may include an Ear Nose and Throat specialist and/or Neurologist’; and

    (b)       ‘no indication of engagement with treatments’.

  4. In a referral dated 28 April 2017, Dr Hankey referred the Respondent for vestibular physiotherapy (ST18, 464).

  5. In a ‘Letter of Support’ dated 26 May 2017, Dr Hankey noted that she had referred the Respondent to an ‘Ear Nose and Throat surgeon in both the public system and the private system’ (ST18, 592).

  6. The Applicant has contended that even if it were accepted that the condition was fully diagnosed, it remained under investigation beyond the qualification period with referrals made to an ear, nose and throat surgeon and for vestibular physiotherapy well outside the qualification period. Accordingly, the vertigo condition was not fully treated or fully stabilised and an impairment rating cannot be assigned to any impairment it may be causing.

Continuing Inability to Work

  1. Due to the cumulative construction of s 94 of the Act, if, as the Applicant has maintained, the Respondent does not have an impairment rating of 20 points or more under the Impairment Tables, then she is not qualified for DSP. Consequently, there is no requirement to consider whether or not the Respondent has a continuing inability to work for the purposes of s 94(1)(c)(i) and s 94(2) of the Act.

  2. However, if the Tribunal were to disagree with the Applicant's contention and find that the Respondent had a total impairment rating of 20 points or more under the Impairment Tables (which is not conceded), the Applicant would need to consider whether the Respondent had a continuing inability to work. In this respect, the Applicant has contended that the Respondent does not have a continuing inability to work for the purposes of s 94(1)(c)(i) of the Act.

  3. A definition of the term ‘continuing inability to work’ and related terms are set out in
    ss 94(2) to (5) of the Act.

  4. Relevantly, s 94(3B) of the Act states that a person has a ‘severe impairment’ if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Table.

  5. Therefore, if the Tribunal allocates at least 20 points to the Respondent's impairments (which the Applicant opposes) but finds that the Respondent does not have a ‘severe impairment’, to have a continuing inability to work the Respondent would have to meet the POS requirements in s 94(2)(aa) of the Act. In addition, the Respondent would also need to meet the remaining continuing inability to work requirement in ss 94(2)(a) and (b) of the Act. If the Tribunal decides the Respondent has a ‘severe impairment’, then to have a continuing inability to work, the Respondent would only need to meet the requirements in ss 94(a) and (b) of the Act.

  6. A person has actively participated in a POS if they have satisfied the requirements of the POS Determination, being a legislative instrument made pursuant to s 94(3C) of the Act. Prior to the date of claim, the Respondent had not commenced a POS. Therefore if the POS requirement was applicable to her, the Respondent could not be found to have a continuing inability to work (T21, 159 - 162).

  7. The Applicant has further contended that the Respondent does not meet the continuing inability to work criteria in ss 94(2)(a) or (b) of the Act. In the JCA reports dated
    23 November 2016 (T11, 107) and 27 February 2017 (T15, 131) it was concluded that the Respondent had a capacity for work, with intervention, of 23 - 29 hours per week within two years.

  8. The Applicant has contended that the Tribunal should accept the opinion of the JCA. As discussed by Senior Member Walsh in Kuzmanovic and Secretary, Department of Social Services [2016] AATA 749 at [57] ‘The JCA assessors have specialist knowledge and experience in identifying barriers to employment, interventions (such as Disability Employment Services), available programs and suitable occupations and are qualified to determine a person's work capacity.’

  9. The term ‘work’ in the context of ss 94(1)(c) and 94(2) of the Act means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage, and that exists in Australia, even if not within the person's locally accessible labour market
    (s 94(5) of the Act).

  10. The Applicant has contended that it is clear from the terms of s 94(2) that 'the impairment' referred to is the impairment which has been assessed as permanent and attracting a rating under the Impairment Tables. The result is that any impairment that is not permanent within the meaning of the Act cannot be considered when assessing whether a person has a continuing inability to work (Department of Family and Community Services v Michael (2001) 116 FCR 500).

  11. The concept of continuing inability to work is not confined to the claimant's ability to undertake work for which they are trained and skilled, but rather their capacity to undertake any work. It involves consideration of whether the claimant has an impairment which of itself prevents the person from undertaking any work or which prevents the person from undertaking educational or vocational training for a period of two years, and, if such training is not prevented by the impairment, whether such training would be likely to enable a person to undertake any work for the next two years (see Watts and Secretary, Department of Family and Community Services (2003) AATA 632 and Crossland and Secretary, Department of Family and Community Services (2004) AATA 864).

  12. The Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.231 at 3.6.2.112 sets out a number of factors to be disregarded in determining whether a person has a continuing inability to work, including:

    (a)       the availability of the person's usual work, or any work the person could do or be trained for, in the locally accessible labour market;

    (b)       the availability to the person of a training activity;

    (c)       the person's motivation to work or train except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (see also Hamal and Secretary, Department of Social Services (1993) 30 ALD 517);

    (d)       difficulties with literacy, numeracy or language which are not directly attributable to a medical condition;

    (e)       the person's preferences regarding the type of work or training (see also Crossland and Secretary, Department of Family and Community Services [2004] AATA 864);

    (f)        the person's potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market (see also Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846).

  1. The Applicant has contended that the evidence does not support a finding that the Respondent's impairments from fully diagnosed, treated and stabilised medical conditions would, of themselves, prevent her from undertaking work of at least 15 hours per week within the next 2 years. Indeed, Dr Hayes concluded that the Respondent was capable of working 15 hours per week at the present time, which is within two years of the date of claim therefore supporting the conclusion reached by the JCA assessors (ST14, 32). Similarly, the evidence does not support a finding that her impairments resulting from fully diagnosed, treated and stabilised medical conditions would, of themselves, prevent her from undertaking a training activity within the next two years, or that, if she was able to undertake a training activity, such activity would be unlikely to enable her to work within two years.

  2. The Applicant has therefore contended that the Respondent does not satisfy
    ss 94(2)(a) or (b) of the Act and as such she does not have a continuing inability to work as required by s 94(1)(c) of the Act.

The Respondent

  1. It was observed at the Tribunal hearing, the Respondent exhibited considerable physical discomfort, standing and moving as well as lying on the floor on a number of occasions. At 2.42pm the Respondent left the Tribunal hearing advising the Tribunal that she was unable to sustain her attendance due to being in pain. Mr Goldfinch continued to represent the Respondent for the remainder of the hearing.

  2. In the Respondent’s SFIC the question is raised as to whether the gastroenterological condition is fully diagnosed in the Applicant’s statement, referring to the decision of the ARO dated 23 February 2017 where the ARO states the Respondent’s ‘gastroenterological condition was assessed as fully diagnosed but not fully treated and stabilised’ (T14, 120). The Tribunal acknowledges this to be the case. However, the Tribunal notes that the condition has not been fully stabilised. Reference is made in the ARO decision to the fact that ‘[T]he Job Capacity Assessor notes that concurrent investigations are continuing, and in recent months there has been some functional improvements in symptoms’ (T14, 120).

  3. The Respondent raises the question as to whether the vertigo condition was fully diagnosed, referring to the JCA conclusion (T11, 105). The Tribunal examined this document and noted the words of the report ‘RATIONALE: This condition is NOT assessed as FDTS as per current DSP legislations’ (T11, 105) (Original Emphasis).

  4. The Respondent accepts the Applicant’s Statement that her fibromyalgia condition is FDTS (Exhibit A6, at [37]). The issue that needs to be resolved is the impairment rating that should be assigned under Table 1 of the Impairment Tables – Functions requiring Physical Exertion and Stamina.

  5. The Respondent questions the reliance by the Applicant on the report dated
    19 March 2018 from Dr Hayes, consultant rheumatologist where he states that the Respondent ‘demonstrated moderate functional impact during the qualification period and with a score of 10 points.’ (ST14, 32).

  6. The Respondent refers to a passage from a report of Dr Hankey, her GP,
    dated 10 August 2017 confirming that in her opinion that the fibromyalgia condition results in a severe functional impact on activities requiring physical exertion or stamina (T17, 136).

  7. The Respondent puts the case that there is a severe functional impact on activities as described in Table 1 of the Impairment Tables requiring Physical Exertion or Stamina. Therefore there should be an impairment rating of 20 points.

  8. The Respondent refers to the AAT1 decision dated 15 August 2017 (T2, 15) and states that the decision was correct.

Witnesses at the Tribunal

  1. Mrs Marianne Horner, mother of the Respondent had provided an amended statement to the Tribunal (Exhibit R8). She appeared in person and was cross examined by representatives for the Applicant and the Respondent.

  2. In her answers to questions, Mrs Horner, who is a registered nurse and who works part time, stated that the Respondent’s condition had not changed since the qualification period. Her stamina is very bad.

  3. When asked, Mrs Horner said that she has not been involved with treating her daughter. Further, in answer to the question in her statement ‘we are available around the clock when she needs us’ (R8), she stated that she and her husband have been in this support role since around 2010. They do the Applicant’s housework every week.

  4. Doctor Hayes, a consultant rheumatologist appeared in person and was cross examined by representatives for the Applicant and the Respondent.

  5. Doctor Hayes commented that the Respondent’s past history was quite complex, long and complicated. The consultation lasted an hour and a half. He determined that the condition of fibromyalgia was fully diagnosed, fully treated and fully stabilised.

  6. Doctor Hayes confirmed that he had a copy of the Impairment Tables, including the rules accompanying the Impairment Tables which were used to make his assessment of the Respondent. He confirmed that at the time of his consultation, 7 March 2018, the impairment arising from the fibromyalgia condition was moderate as contained in the descriptors of Table 1 - Functions requiring Physical Exertion and Stamina). The assessment was made on what the Respondent was able to do in her daily life as well as medical reports provided by Dr McKenzie, a clinical geneticist, Dr Andre Chung, a gastroenterologist, Dr Lee a clinical psychologist and Dr Ang a rheumatologist.

  7. In response to a question which referred to the Respondent claiming that Dr Hayes had not focused on the type or severity of pain, Dr Hayes stated that he went into all aspects of her pain; what part of her body was affected as well as all her other symptoms.

  8. On functionality tests, Dr Hayes informed the Tribunal that he goes through a standard proforma which has a section to do with present activities, and he went into a lot of basic details of what the Respondent was able to do. As a consequence Dr Hayes stated that he gained some idea of her level of stamina from what she was able to do.

  9. Questions were put to Dr Hayes concerning the Respondent’s capacity to work. Doctor Hayes confirmed that at the time of his assessment, the Respondent was capable of working 15 hours per week, based on her attendance at university.

  10. Reference was made to a report dated 15 June 2016 from Ms Muirhead, occupational therapist (T8, 97), where she said that the Respondent could not work, and could not work for the next few years. Doctor Hayes commented that he was not a mental health expert and mental health certainly plays a big role in the assessment of the Respondent’s disability. Doctor Hayes added that his assessment was purely on the Respondent’s musculoskeletal symptoms.

  11. Ms Unger gave evidence by telephone in her capacity as the JCA assessor. She was cross examined by both the Applicant’s and Respondent’s representatives. Ms Unger is a psychologist who has worked for Centrelink for 16 years.

  12. Ms Unger informed the Tribunal that her assessment came to the conclusion that the only condition that could be considered was fibromyalgia and if it was fully diagnosed, fully treated and stabilised she would allocate 10 points to that condition based on Table 1 of the Impairment Tables (Physical exertion) (T3, 39), based on the medical evidence at the time and the Respondent’s own report.

  13. Ms Unger confirmed the Respondent’s base line work capacity was recommended at
    15 -2 2 hours per week and if a disability employment service was to be involved it would be 23 - 29 hours per week at the time of the assessment.

  14. Ms Unger confirmed that there was a contributing assessor at the time of her assessment of the Respondent in February 2017 who was an occupational therapist who works for Centrelink.

  15. The Respondent appeared in person and was cross examined by representatives for the Applicant and the Respondent.

  16. In her answers to questions, the Respondent expressed surprise at the outcomes of the assessments completed by Dr Hayes and Ms Unger. She indicated that they were a reflection of her aspirations as stated at the consultations, rather than what her condition actually was.

  17. On the matter of attendance at university the Respondent told the Tribunal that there had been confusion as to the number of subjects that she was studying and her hours of attendance.

  18. The Respondent advised the Tribunal that her biggest issue was stamina and associated fatigue which means that she has to pace herself. She considers fatigue as a very big part of fibromyalgia.

  19. In answer to a question concerning a report from Mr King, an accredited exercise physiologist (ST18, 432), which refers to Average pain, 2-3/10 and maximum pain 9/10, the Respondent stated that they were discussing all levels and her average is five to six, so the report is inaccurate. Further, reference to current physical activities was incorrect.

  20. She referred to the Curtin University Access Plan (CAP) which makes special provision for students with a medical condition or disability. The Respondent said that out of
    12 weeks when she was studying two units last semester, she made it to three weeks for one unit and five weeks for the other. Frequently she did not go and watched lectures online.

  21. The Respondent explained that on a good day she only has four hours of functional time, meaning being upright. On a really bad day she cannot communicate with people and cannot concentrate.

  22. In response to questioning, the Respondent outlined the assistance offered by her parents, saying that they do all the gardening, help out with the laundry and her mother provides some food.

  23. Doctor Hankey, the Respondent’s GP since 2015, gave evidence by telephone and was cross examined by representatives for both the Applicant and the Respondent.

  24. In answer to a question to a letter of support dated 25 October 2017 (ST18, 602) that
    Dr Hankey had prepared, she said that the Respondent had been diagnosed with fibromyalgia four years before the Respondent became her patient. She commented that fibromyalgia is pain that is hard to quantify. A sufferer will have widespread chronic pain and fatigue. Doctor Hankey defined chronic pain as pain that has been present for more than six months continually.

  25. On the subject of the number of hours per week the Respondent could work, reference was made to Dr Hankey’s letter of 10 August 2018 (ST18, 597 - 598), and clarification was sought on the following paragraph:

    I also discussed Samantha’s prognosis and likely achievable work hours on 24/2/17 with Tracey Unger of the Department of Human Services. At the time I was asked how many hours Samantha could work, and I was explaining that while at university, she could not manage any additional work, but once her university degree was completed, I hoped she would be able to work up to 15 hours per week. This was based on her previous job hours although when her work hours were reduced due to difficulty sustaining them, even 8 hours per week was unmanageable. I had hoped that Samantha would be able to achieve 15 hours per week, but looking at what she can currently do at university, I would expect her to be able to do work less than this; perhaps 5-6 hours per week (e.g. two hours, every second day or something similarly worked out with Samantha).

  26. Doctor Hankey advised the Tribunal that she was basing the attendance on her own degree course, medicine, where one unit was 20 hours and another was 17 hours. The Tribunal notes that this was an incorrect assumption by Dr Hankey. Doctor Hankey confirmed that the Respondent is at university for five hours per week.

  27. Doctor Hankey explained how the Respondent deals with her condition in that she plans her week out and paces herself through self-management but if she tries to do three things in a day then she might not be able to manage anything for the next four days.

  28. Doctor Hankey also outlined the treatment the Respondent undergoes for her fibromyalgia (ST18, 602), namely chiropractor services, STEPS program, psychology, occupational therapy, physiotherapy, osteopathy and remedial massage which the Respondent has been doing since 2015 resulting in the condition being fully stabilised.

  29. On being questioned as to how she determined the level of impairment for fibromyalgia as severe in accordance with Table 1 – Functions requiring Physical Exertion or Stamina in the Impairment Tables as outlined in her medical letter of support dated 25 October 2018 (ST18, 602), Dr Hankey said this was based on the capacity of the Respondent to perform household activities.

  30. A question was asked of Dr Hankey as to what she understood the term ‘without assistance’ as described in the Impairment Tables. Her response was that she understood this to be with no support, like a crutch or a wheelchair or frame or needing to lean on anything.

  31. Reference was made to the Impairment Table 1 - Severe functional impact on Functions Requiring Physical Exertion or Stamina paragraph (1) (b) has or is likely to have difficulty sustaining work related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.

  32. Doctor Hankey said that because the Respondent was unable to attend university for longer than two hours that she would not be able to work for more than three hours. As far as the drive to university was concerned, Dr Hankey said that the Respondent was not doing any clerical work in the car, she is stationary and sedentary. It was confirmed that the drive to university was thirty minutes each way.

CONSIDERATION

  1. Over three years has passed since the Respondent’s qualifying period, 4 May 2016 to
    3 August 2016. This is the period that the Tribunal must consider as to whether the Respondent satisfies ss 94(1)(a), (b) and (c) of the Act.

  2. Based on the medical evidence and the evidence of witnesses at the Tribunal hearing, the Respondent had the following medical conditions at the time she lodged her application for the disability support pension:

             fibromyalgia;

             mental health condition – depression, anxiety, PTSD;

             gastrointestinal disorder; and

             vertigo.

  3. The Tribunal is therefore satisfied that the Respondent had an impairment on 4 May 2016 and therefore satisfies s 94(1)(a) of the Act.

  4. There is no new medical evidence that relates to the condition of vertigo.

  5. The gastroenterological condition remained under investigation at the time of the qualification period and was not fully diagnosed, fully treated or fully stabilised. In a Chronic Disease Management GP Management Plan dated 17 February 2017, Dr Hankey noted that the Respondent had been referred to an endocrinologist but was yet to make an appointment (ST18, 455).

  6. The JCA assessor recorded (T11, 104) that the Respondent’s mental health condition was diagnosed by a clinical psychologist, Ms Barter, on 17 June 2016. The assessor recorded that Dr Hankey said that the Respondent had refused antidepressant medication because of the negative experience of someone close to her who had used it. This suggests that the condition has not been fully treated and therefore cannot be rated against the Impairment Tables. Further, according to the assessor, the Respondent told her on
    22 February 2017 that although her mental health condition feeds into her ability to function, it has never impacted her ability to work.

  7. Fibromyalgia is the only medical condition that has been fully diagnosed, fully treated and stabilised.

  8. Section 94(1)(b) of the Act provides that the second qualification for DSP is that the person’s impairment rates 20 or more points under the Impairment Tables.

  9. The Impairment Tables do not assess medical or psychiatric conditions as such. Rather, they describe functional activities, abilities, symptoms and limitations, and assign ratings to determine the functional impact of impairments.

  10. To apply the Impairment Tables the condition must be considered ‘permanent’ and the impairment that results from the condition must be more likely than not, in light of available evidence, to persist for more than two years (s 6(3) of the Determination). The word ‘permanent’ does not have its usual meaning, as for a condition to be permanent, it must have been fully diagnosed by an appropriately qualified medical practitioner and have been fully treated and fully stabilised and likely to last for more than two years
    (ss 6(4), 6(5), 6(6) and 6(7) of the Determination).

  11. Section 10 of the Determination is about selecting the applicable Table and assessing impairments. It states at s 10(1) of the Determination that Table selection is to be made by identifying the loss of function, then referring to the Table related to the function affected.

  12. Section 11(1)(c) of the Determination states that if an impairment is considered as falling between two impairment ratings, then the lower of the two ratings is to be assigned.

  13. Section 11(4) of the Determination sets out that for episodic and fluctuating conditions, when assessing the overall functional impact of those conditions, the severity, duration and frequency of the episodes or fluctuations are to be taken into account.

  14. The Respondent said that it was the chronic pain and tiredness that she experienced from the fibromyalgia that had the greatest impact on her stamina and her ability to function.

  15. The Respondent stated that her fibromyalgia had symptoms of chronic pain, tiredness and weakness in her limbs. She said that she plans to do one or two main things a day, such as attending university or preparing food for her dogs. She explained that if there is a major activity one day, she has an easy day the next in order to recover. For example, attending the Tribunal hearing today meant that she could not do very much the following day. She would not be able to manage attending Curtin University on consecutive days, although she could manage to watch an online lecture while lying down on the second day.

  16. The Respondent has an ACROD sticker which is to assist people with a disability to get appropriate car parking. She can walk into a shopping centre but not through the whole of a shopping centre. Sometimes she might need a wheelchair. She needs help when in a wheelchair because of weakness in her arms. She said that she could not always get from a car into a shopping centre and on a bad day she cannot walk 25 metres.

  17. According to the JCA assessor, Dr Hankey said that the Respondent’s fibromyalgia is a difficult condition to assess as it is not quantifiable (T15, 133). She also stated that it is not treatable but only manageable. It was noted that the Respondent has previously engaged in a range of therapies including rehabilitation and there are further options available to her. In her letter dated 10 August 2017, Dr Hankey wrote that the Respondent has done lots of physical rehabilitation with different allied health professionals, and that this is a chronic condition that requires managing rather than curing. Doctor Hankey also wrote that the Respondent has had this condition for well over 10 years, and it has been escalating gradually for the last 24 years. Doctor Hankey also wrote that she believes that the Respondent will have this condition for at least the next two, and perhaps, five years.

  18. The Respondent told the Tribunal that she used to dance, and in December 2016 after attending an hour’s dance class, she spent the next three days in bed.

  19. The Respondent said that she has an access plan in place with the CAP and is not penalised if she misses lectures. The Respondent said that if she has classes located far from each other on campus, she gets her car and drives to the next location as she cannot manage the walk.

  20. The Respondent told the JCA assessor that she has suffered from widespread pain and lack of stamina since she was eight years old. The Tribunal was told about the strategies she has put in place to help her manage this condition. The Respondent was working full time at a transport company in an administrative role. Over a period of time her employer allowed her to reduce her hours and take extra breaks but that was not enough and the Respondent left her job in March 2016 because of her medical condition.

  1. In a medical certificate dated 18 April 2016, Dr Hankey wrote that the date of onset of the fibromyalgia was 23 December 2010 and was likely to persist for two or more years. She recorded that the Respondent was unable to cope with driving for more than five minutes due to pain in shoulder, back and wrists. .

  2. The Tribunal heard from the Respondent that she needed to pace herself which meant that she could only function on alternative days or 50% of the time, and at other times she would not be able to do very much at all. The information provided to the assessor by
    Dr Hankey, as recorded by the JCA assessor, corroborated the Respondent’s evidence that she has good and bad days.

  3. Doctor Hankey in her letter dated, 10 August 2017 (T17, 136 - 138) made the following points with regard to how the Respondent’s fibromyalgia, and the related condition of hypermobility, affect her:

             the condition causes her significant pain and severely impacts her ability to function;

             she experiences stabbing nerve pain as well as deep constant pain which is worse in both hands and wrists, hips, knees, shoulders, right elbow, neck, upper back, lower back, ankles and feet;

             she also experiences chest, abdominal and pelvic pain;

             she tries to do multiple things in a day but is unable to do so due to fatigue or pain arising from activities undertaken the previous one or two days;

             she needs to plan her week allowing for recovery time between planned events. An event can be attending university or having an MRI;

             in late 2016, she had two exams one week apart, and it took her two weeks to recover from the effort of preparing and then studying for them;

             the Respondent is often fatigued performing light physical tasks like going to the supermarket, or cooking, or walking her dogs for less than 10 minutes;

             she is unable to perform light day to day household activities like cleaning or preparing food, and is unable to garden;

             the Respondent’s parents have been coming to her house for the last two and a half years to help her clean and keep her house in order. The Respondent relies on them to help her with gardening, cleaning, doing the dishes, preparing food for herself and her dogs;

             the Respondent is only sometimes able to walk around a shopping centre or from the carpark into a supermarket without assistance;

             she has severe pain walking long distances, and when she has pain and weakness, walking any distance is difficult;

             on some days she is too tired and sore to be able to walk at all from the carpark or around a shopping centre, and mobility aids do not assist her;

             she cannot use a wheelchair as she cannot push herself;

             she owns crutches but only uses them for stairs. She finds it difficult because of the pressure on her wrists. She needs to use a wrist brace to use crutches and then cannot use her wrists easily for the next few days;

             she has significant difficulty sustaining work-related tasks like sitting at a desk or studying continuously for three hours; she has great difficulty sustaining continuous sedentary or stationary posture for more than 20 minutes;

             if she studies for more than 20 minutes she then lies down for up to 40 minutes, then gets up and moves around. She can do this process (sit for 20 minutes, lie down for up to 40 minutes, move around) for three times in succession before the pain starts to affect her concentration;

             when attending university classes, the Respondent might stand up or lie down before sitting again, and she cannot go back to back classes and needs two hours between classes to rest. The university has given her access to a room for this purpose; and

             the maximum contact hours at university in a week were five hours, due to fatigue and pain and it is preferable for these to be spaced across the week. For example, a Monday class then a class on Thursday or Friday so she has time to recover in between.

  4. Doctor Hankey addressed a point made by the JCA assessor that she had given a prognosis such that this condition would affect the Respondent’s ability to function for three to 12 months. This was a reference to medical certificates provided by Dr Hankey. Doctor Hankey wrote that she was aware that these medical certificates were valid for only three months and a new one would have to be done, and that she preferred to write certificates for the shortest appropriate time when she knows she will be reviewing the patient in three months. Doctor Hankey reiterated that the prognosis in relation to the Respondent’s fibromyalgia and hypermobility was at least two years if not longer.

  5. According to the assessor, Dr Hankey reportedly said when not engaged in tertiary studies, the Respondent was likely to have the capacity to sustain work in appropriate employment for at least fifteen hours a week. This is strongly disputed by the Respondent who stated that this was an aspiration.

  6. In her letter of 10 August 2017 (T17, 136), Dr Hankey responded to the Applicant’s assessment. She wrote that she discussed with the JCA assessor the Respondent’s achievable work hours. Doctor Hankey wrote that what she said was that while the Respondent was at university, she could not manage any additional work but it had been hoped that once she finished studying, she could work up to 15 hours a week. Doctor Hankey wrote that in her last job, the Respondent was unable to sustain even eight hours work a week and on that basis considers that she might manage perhaps five or six hours a week, following a pattern of perhaps two hours work every second day. The fact that the Respondent left her job in March 2016, before making her claim for disability support pension was noted by the Tribunal

  7. Doctor Hankey wrote that Respondent’s pain diary for the period from 31 July 2017 to
    9 August 2017 represented a fairly typical week for her. Looking at the first few days of the diary, the first day (Monday) was the day of the AAT1 hearing. On the same day the Respondent had an MRI. That evening she was in pain and was too tired to eat or prepare food for her dogs. She spent most of the following day lying down, reading or watching television, punctuated with some physiotherapy stretches. She was unable to use her hands and arms properly because of a high level of pain in her hand and forearm which she attributed to carrying a file, handbag, umbrella and jacket to the hearing the previous day. She spent the next day (Wednesday) resting and taking it easy most of the day as she wanted to attend a friend’s party that evening where she spent two hours mainly seated at a pub then drove home.

  8. It is apparent from the diary that the Respondent could not manage to do very much most days. One of her busiest days that week was Friday when she attended university. She wrote that she had an hour’s drive to university and lay down in a computer lab before class which ran from 8:00 am to 9.45 am. She got up every 20 minutes or so to walk and stretch. She had significant pain by the end of class from the base of her skull to her buttocks, and in her right forearm, wrist and hand. She went for coffee and attended to some administration. She needed to buy dog food and went to her mother’s house so her mother could do that for her, and make her lunch. She drove home in intense pain, slept from 3 pm to 7 pm, fed the dogs and went back to bed. The Respondent wrote that on the Saturday she was essentially inactive because of what she did the day before. She had planned to go out Saturday night but decided she could not manage that, and stayed home instead. Her parents came to do the dishes, wash the floor and pick up after the dogs. Her mother brought two days’ worth of cooked meals. Lying down affected her breathing but sitting up for more than five minutes was painful.

  9. The relevant Table for this condition is Table 1 (Functions requiring Physical Exertion and Stamina) which assigns points to activities as follows:

Points

Descriptors

0

There is no functional impact on activities requiring physical exertion or stamina.

  1. The person: 

    (a)   is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and 

    (b)   has no difficulty completing physically active tasks around their home and community.

5

There is a mild functional impact on activities requiring physical exertion or stamina.

  1. The person: 

    (a)   experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty: 

    (i)    walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or 

    (ii)    performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and 

    (b)   is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

  1. The person: 

    (a)   experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person: 

    (i)    is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or 

    (ii)    has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and 

(b)    is able to: 

(i)    use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and 

(ii)    perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

  1. The person: 

    (a)   usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: 

    (i)    walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or 

    (ii)    walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or 

    (iii)   use public transport without assistance; or 

    (iv)   perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and 

    (b)   has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

30

There is an extreme functional impact on activities requiring physical exertion or stamina.

  1. The person: 

    (a)   is completely unable to perform activities requiring physical exertion or stamina; or 

    (b)   experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing any activities requiring physical exertion or stamina and, due to these symptoms, the person is unable to move around inside the home without assistance. 

    (2)   This impairment rating level includes people who require Oxygen treatment (e.g. the use of an Oxygen concentrator during the day or to move around).

  2. Based on the Respondent’s evidence and that of Dr Hankey, the Tribunal finds that although the Respondent can sometimes walk from her car to a shopping centre, and sometimes perform light household duties, for about 50% of the time, she is unable to do so due to pain and fatigue. Based on the medical evidence from Dr Hankey, the Tribunal is satisfied that the Respondent is unable to sustain work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours because of the pain she experiences. Clearly, the extent to which the Respondent is affected by this condition fluctuates. Taking into account the severity, duration and frequency of these fluctuations and their impact upon the Respondent’s ability function, the Tribunal is satisfied that her condition rates 20 points against Impairment Table 1 - Functions requiring Physical Exertion and Stamina

  3. The evidence at the hearing provided by Dr Hayes, consultant rheumatologist, was not considered to be as compelling as that provided by Dr Hankey. Doctor Hayes acknowledged that fibromyalgia was a very complex medical condition. He had one consultation with the Respondent for an hour and a half, over two and a half years ago and that his assessment was purely of her musculoskeletal symptoms.

Continuing Inability to Work

  1. Section 94(1)(c) of the Act provides that the third qualification for disability support pension is that the person has a continuing inability to work due to their impairment.

  2. The Respondent is not subject to the requirement of participating in a POS because of the application of s 94(3A) of the Act. A person whose impairment rates 20 or more points under the Impairment Tables has a continuing inability to work if in all cases, their impairment prevents them from undertaking any work of at least 15 hours a week independently of a POS at the relevant minimum wage and undertaking a training activity within the next two years (ss 94(2)(a), 94(2)(b)(i) of the Act). Alternatively, where the person’s impairment does not prevent them from undertaking a training activity, such activity is unlikely to enable the person to work for at least 15 hours a week independently of a POS within the next two years (s 94(2)(b)(ii) of the Act).

  3. As the Tribunal has found that the Respondent has an impairment rating of 20 when assessed against Table 1, it is satisfied that she has a severe impairment. The Tribunal then needed to consider whether the Respondent’s severe impairment prevented her from undertaking any work for at least 15 hours a week within the next two years.

  4. The Tribunal has already recorded the opinion of Dr Hankey with regard to the Respondent’s capacity to work within the next two years. Doctor Hankey referred to the length of time that the Respondent has suffered from fibromyalgia and that it has been getting worse over time. Doctor Hankey also wrote that she believes that the Respondent will have this condition for at least the next two, and perhaps, five years. Doctor Hankey also wrote that it had been hoped the Respondent could work up to 15 hours a week but as she was unable to sustain eight hours work a week in her last job which she left in March 2016, it was now expected that the Respondent will have a work capacity of perhaps five or six hours a week.

  5. Doctor Hankey’s opinion is in contrast with the report produced by the JCA assessor dated 27 February 2017 which recorded that the Respondent had a baseline work capacity of 15 - 22 hours a week which could increase to 23 - 29 hours a week with intervention in the next two years.

  6. The rationale for this is largely what the assessor reported Dr Hankey had told her in a telephone conversation. However in her letter submitted to the Tribunal, Dr Hankey made it clear that, from her perspective, this was not what she said or intended to convey. The Tribunal noted that there appeared to be a breakdown in communication based on
    Dr Hankey’s incorrect assumption of the hours of study being undertaken by the Respondent.

  7. Doctor Hankey’s long and detailed letter dated 10 August 2017 (T17) gives a clear picture of the severity of the Respondent’s medical conditions, in particular her fibromyalgia.
    As Dr Hankey noted, she has been the Respondent’s treating doctor since January 2015 and sees her on a regular basis (at least every three months to provide medical certificates).

  8. The Tribunal is satisfied that the Respondent’s severe impairment is of itself sufficient to prevent her doing any work or training (of 15 or more hours a week) within the next two years. The Tribunal concludes that the Respondent had a continuing inability to work on
    4 May 2016 and therefore satisfies s 94(1)(c) of the Act.

CONCLUSION

  1. The Respondent was qualified or became qualified for the payment of DSP within the period 4 May 2016 and 3 August 2016 (13 weeks after the claim date). This is because, she satisfied s 94 of the Act, in particular as she had:

    (a)       physical, intellectual or psychiatric impairments; and

    (b)       impairments arising from fully diagnosed, treated and stabilised conditions that attract an impairment rating of at least 20 points under the Impairment Tables; and

    (c)       a continuing inability to work.

DECISION

  1. The decision under review by the AAT1 is affirmed.

    I certify that the preceding 166 (one hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of  Member I Fletcher

................................................................

Associate

Dated: 24 January 2020

Date of hearing:

22 November 2019

Representative for the

Applicant:

Ms Jasmine Forsyth

Solicitors for the Applicant:

Mills Oakley Lawyers

Representative for the Respondent:

Antony Goldfinch

Solicitors for the Respondent:

Stables Scott

Key Legal Topics

Areas of Law

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Appeal

  • Judicial Review

  • Jurisdiction

  • Statutory Construction

  • Standing

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