Janice Jamieson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2013] AATA 588

[2013] AATA 588  

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2012/3300
Re	Janice Jamieson
APPLICANT
And	Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	22 August 2013
Place	Brisbane

The Tribunal affirms the decision under review.

.............................[SGD].........................................

Dr M Denovan, Member

CATCHWORDS

SOCIAL SECURITY – Pensions, benefits and allowance – Disability support pension – 20 points or more under the Impairment Tables – Decision affirmed

LEGISLATION

Social Security Act 1991 (Cth) ss 23, 26, 94

Social Security (Administration) Act 1999 (Cth) s 13, Sch 2 cl 4

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr M Denovan, Member

22 August 2013

INTRODUCTION

1. The applicant, Mrs Janice Jamieson contacted Centrelink about her eligibility for disability support pension (“DSP”) on 2 April 2012.[1] She subsequently lodged a claim.

   [1] Exhibit 1, T-Document 7, pp. 40-63.

2. Mrs Jamieson was assessed by a Job Capacity Assessor (“JCA”),[2] who allocated her

   
   

   15 impairment points and opined that Mrs Jamieson had a capacity to work at least

   
   

   15 hours per week. Centrelink made a decision to reject Mrs Jamieson’s claim on

   
   

   14 May 2012.

   [2] Exhibit 1, T-Document 10, pp. 74-77.

3. On 31 May 2012, an Authorised Review Officer affirmed the decision, as did the Social Security Appeals Tribunal (“SSAT”) on 12 July 2012.

4. The application for review of the decision by the Administrative Appeals Tribunal was lodged on 30 July 2012.

   ISSUES FOR DETERMINATION AND RELEVANT LEGISLATION

5. The Social Security Act 1991 (Cth) (“the Act”) sets out the qualification criteria for DSP. Insofar as it is relevant for present purposes, s 94 of the Act (as it appeared at the relevant date) provides that the applicant:

   ·must have a physical, intellectual or psychiatric impairment;

   ·her impairment must be of 20 points or more under the Impairment Tables;[3] and

   ·she must have a continuing inability to work; and

   ·unless the person has a severe impairment of 20 points or more under a single Table, they must have participated in a program of support.

   [3] See Social Security Act 1991 (Cth) s 23, whereby “Impairment Tables” means the tables determined by an instrument made under s 26(1) of the Act.

6. Under Sch 2 cl 4(1) of the Social Security (Administration) Act 1999 (Cth), an applicant must qualify for a social security payment, in this case DSP, on the day on which the person made the claim or within 13 weeks of that date (“the relevant period”). If a person advises Centrelink of their intention to make a claim and subsequently lodges a claim within 14 days, as Mrs Jamieson did, they are deemed to have made the claim at the first date of contact.[4] For the applicant’s claim for DSP, the relevant period is from

   
   

   2 April 2012 to 2 July 2012.

   [4] Social Security (Administration) Act 1999 (Cth) s 13.

7. Before an impairment rating can be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), which was made by the Minister pursuant to s 26(1) of the Act, it is necessary to determine whether Mrs Jamieson’s condition/s can be regarded as being permanent and the impairment resulting from the condition/s is likely to persist for more than two years.[5]

   [5] s 6(3) the Determination.

8. Mr Hamilton, for the respondent, accepts that Mrs Jamieson’s condition of mastectomy right side and lymphedema of the right arm is permanent. The impairment attributed to this condition by the applicant’s doctor is twofold. Mrs Jamieson has pain and swelling in her upper right limb. She also suffers from fatigue, a consequence of the radiotherapy and chemotherapy applied when treating the breast cancer. Mr Hamilton contends it is contentious as to whether Mrs Jamieson’s fatigue will likely persist for two years. At the hearing, Mr Hamilton accepted the appropriate ratings should be 5 points from Table 1 for fatigue (if I was to find it a rateable condition), and 5 to 10 points from Table 2 for loss of function in the upper limbs.

9. The issues that I must determine are:

   ·what ratings Mrs Jamieson’s mastectomy right side and lymphoedema of the right arm should be allocated; and

   ·if she has 20 impairment points or more, whether she has a continuing    inability to work; and

   ·if she does not have a severe impairment, has she completed a program of support.

   CONSIDERATION

10. Mrs Jamieson’s general practitioner, Dr Umang Bassan provided two Centrelink medical reports dated 4 April 2012[6] and 23 May 2012,[7] and an additional medical report dated

    
    

    12 October 2012.[8] Dr Bassan also gave evidence at the hearing.

    [6] Exhibit 1, T-Document 9, pp. 66-73.

    [7] Exhibit 1, T-Document 12, pp. 80-87.

    [8] Exhibit 2, Annexe A.

11. Dr Bassan in his first report provided a diagnosis of “invasive ductal breast cancer. Treated but causing lymphoedema in right arm”, and in his second report he described Mrs Jamieson’s condition somewhat differently, stating her diagnosis as “lymphoedema of right (dominant) arm. Happened after right total mastectomy and dissection sic 2011.” Because Dr Bassan reports that Mrs Jamieson is suffering from functional impairment as a result of chemotherapy and radiotherapy, I consider the best descriptive terminology for Mrs Jamieson’s condition is right mastectomy and lymphoedema right side upper limb. After reviewing the reports of Dr Bassan, I find this condition is fully treated and stabilised and is one that can be rated under the Impairment Tables.

12. In his second report Dr Bassan noted Mrs Jamieson was suffering from depression. He listed this condition as one which is generally well managed and that causes minimal or limited impact on her ability to function. Mrs Jamieson’s condition of depression is not one that would attract a rating, because of the limited impact it has on her capacity to function.

    What impairment rating/s can Mrs Jamieson’s mastectomy right side and lymphoedema of the right arm be given?

13. Dr Bassan described Mrs Jamieson’s current symptoms as heaviness and pain in her right arm, with swelling. He stated she also experiences fatigue and tiredness, which he opined, is very common after chemotherapy.

    Fatigue

14. The SSAT found that Mrs Jamieson’s fatigue was not a condition that was rateable because it had not been fully investigated and as such there was not sufficient medical evidence to assign it a rating. Dr Bassan did not indicate ‘fatigue’ was a separate condition, rather he stated it was a symptom secondary to her treatment of breast cancer. Dr Bassan gave evidence that there was no other likely cause for Mrs Jamieson’s fatigue, other than perhaps her general lack of fitness, and as a side effect of her hormonal medications, used to treat the breast cancer. He said it was common for patients who have undergone radiotherapy and chemotherapy to feel fatigued for many months, and in some cases many years. He agreed with Mr Woods that Mrs Jamieson could be in the population of people who suffer fatigue as a result of chemotherapy for up to two to three years.

15. I find that fatigue is not a separate diagnosis in itself that requires investigation in this case. I accept Dr Bassan’s evidence that fatigue is a symptom Mrs Jamieson suffers from as a consequence of her therapy for breast cancer. To be given an impairment rating, impairment from a condition must be expected to remain for at least 24 months from the relevant period. According to Dr Bassan this impairment may persist for up to three years, and I accept his evidence that Mrs Jamieson is likely to be one of those persons who experiences protracted fatigue as a result of the therapy. Mrs Jamieson completed her last round of chemotherapy in October 2011. On the basis of Dr Bassan’s evidence, I accept that she may experience fatigue for a protracted time, until perhaps October 2014 but no later. If Mrs Jamieson is still complaining of fatigue further medical evidence would be required before she is entitled to a rating from the Impairment Tables for impairment from fatigue.

16. In relation to her fatigue, Dr Bassan opined that Mrs Jamieson would not be able to perform a task for more than 3 hours without requiring a break. Dr Bassan said that he felt Mrs Jamieson would be able to complete tasks, but would require breaks, after which time she could continue with the task. Dr Bassan said that he understood Mrs Jamieson experiences fatigue when walking in the supermarket. Dr Bassan opined Mrs Jamieson would be able to perform office work, or work in a call centre, but would need to have breaks and rest.

17. Mrs Jamieson said that she gets fatigued when driving a car, when walking for more than 15 minutes around her daughter’s property, and when performing activities of daily living. She usually needs to rest every 30 minutes or so.

18. Impairment from fatigue is rated under Table 1 of the Impairment tables. It reads as follows:

    Table 1 - Functions requiring Physical Exertion and Stamina

Introduction to Table 1

· Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

· Self-report of symptoms alone is insufficient.

· There must be corroborating evidence of the person’s impairment.

· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
• a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
• results of exercise, cardiac stress or treadmill testing.

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).

1. To be allocated 20 impairment points from Table 1, a person must satisfy at least one criterion from section (a) and also satisfy the criteria in section (b).

2. Mrs Jamieson is fortunate, in that her husband and daughter assist her with many activities of daily living, and she is able to avoid many activities such as cooking, shopping and cleaning. The evidence before me is that Mrs Jamieson is capable of walking without assistance around a shopping centre and from the car park to the shopping centre without assistance. She admitted under cross examination that she would be able to perform her own shopping, albeit in short bursts, if she did not have the assistance of relatives and friends. Mrs Jamieson’s fatigue does not prevent her from using public transport without assistance or performing light day-to-day household activities.  Although she has difficulty changing sheets that is related more to her impairment in her right arm than due to fatigue.

3. It was the testimony of Dr Bassan that Mrs Jamieson can complete tasks, but she needs regular breaks. Although in his report dated 12 October 2012, Dr Bassan stated that

   
   

   Mrs Jamieson is unable to perform any sedentary tasks of continuous nature for at least three hours at a stretch, at the hearing when asked if Mrs Jamieson could sustain work related tasks of a clerical, sedentary or stationary nature for a continuous period, for more than 3 hours, he stated that she could, but for no more than three hours. Dr Bassan qualified his opinion by stating he has general practitioner qualifications only, and is not an expert in this field. He also reminded the Tribunal that he is not present with

   
   

   Mrs Jamieson during the day and he has to largely rely on her self-reporting to him when he forms his opinion. Qualified JCA Ms Lana Stiller in her report,[9] took into consideration Mrs Jamieson’s fatigue, and opined she was capable of maintaining part-time work. I accept the opinion of Ms Stiller and find that Mrs Jamieson does not meet any of the requirements for 20 impairment points from Table 1.

   [9] Exhibit 1, T-Document 10, pp. 74-77.

4. I find that Mrs Jamieson qualifies for 10 impairment points from Table 1. This is a fairly generous interpretation, and as I mentioned above, limited in date to no later than October 2014, after which time it would not be possible on the evidence available today, to find that Mrs Jamieson’s fatigue was related to the accepted condition of right mastectomy and lymphoedema right side upper limb.

   Upper limb function

5. Mrs Jamieson suffers from aching and heaviness in her right arm, the result of lymphoedema. These symptoms are managed by wearing compression garments and daily massage. The lymphoedema prevents Mrs Jamieson from carrying heavy objects. She told me that whilst she was capable of picking up a 2 L carton of milk with her right arm, she would need to use her left hand to steady the load if she needed to walk any distance with the item. I asked Mrs Jamieson to demonstrate her capacity to do up buttons. She had no difficulty. Mrs Jamieson admitted she would be able to do up shoelaces, handle very small objects such as coins, can reach out to pick up objects, and can use a pen or pencil, although only for limited period of about 15 minutes, without then needing a rest. She said she has trouble using a keyboard for more than 15 minutes due to pain in her right arm.

6. In his later report to Centrelink, Dr Bassan reported Mrs Jamieson as having pain and swelling after doing daily chores.

7. Impairment in the upper limb is assessed using Table 2 of the Impairment Tables. It reads:

   Table 2 – Upper Limb Function

Introduction to Table 2

· Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.

· The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

· Self-report of symptoms alone is insufficient.

· There must be corroborating evidence of the person’s impairment.

· Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

• a report from the person’s treating doctor;
• a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
• a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
• results of diagnostic tests (e.g. X-Rays or other imagery);
• results of physical tests or assessments.

· For the purposes of this Table upper limbs extend from the shoulder to the fingers.

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1) The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b) handling very small objects (e.g. coins);

(c) doing up buttons;

(d) reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1) The person has difficulty with most of the following:

(a) picking up a 1 litre carton full of liquid;

(b) picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c) holding and using a pen or pencil;

(d) doing up buttons or tying shoelaces;

(e) using a standard computer keyboard;

(f) unscrewing a lid on a soft-drink bottle.

20

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.

30

There is an extreme functional impact on activities using hands or arms.

(1) The person is unable to perform any activities requiring the use of both hands or both arms.

1. To qualify for 20 impairment points from Table 2, a person must satisfy most of the five criteria set out in the Table. Mrs Jamieson has no impairment as a result of her accepted condition in her right arm. She is capable of handling and carrying light objects, and does not have severe difficulty moving or carrying most objects. She stated that she has not tried any adaptions to her computer keyboard. She told me she is capable of using a pen or pencil for about 15 minutes, after which time she must rest, then 30 minutes later she can resume use. Mrs Jamieson does not have severe difficulty turning the pages of a book. She does not satisfy any of the criteria for 20 impairment points under Table 2.

2. Although Mrs Jamieson has difficulty unscrewing a lid on a soft drink bottle, she is capable of using a pen or pencil and standard keyboard for intervals of 15 minutes, and she told me she is able without difficulty to pick up a 1 L carton full of liquid and pick up light, but bulky objects requiring the use of two hands together. She demonstrated she can comfortable do up buttons, and stated that she would have no difficulty doing up shoelaces. She has no difficulty handling small objects or reaching up or out to pick up objects. I accept she experiences difficulty picking up heavier objects, such as a 2 L carton of liquid and she cannot carry a full shopping bag.

3. For the allocation of 5 impairment points, ‘some difficulty’ most be experienced by the person with most of the listed activities. In relation to the allocation of 10 impairment points, ‘difficulty’ must be had with most of the listed activities. ‘Some difficulty’ suggests a lesser interference in a person’s capacity to perform a task, than ‘difficulty’. I consider ‘some difficulty’ to suggest that the person does not necessarily have difficulty every single time they perform the task, and/or the difficulty may be of a more minor and  less significant degree.  The use of the word ‘difficulty’ in isolation suggests the difficulty must be present on most if not all occasions the person performs the activity, and that the incapacity to perform the task must be considerable, i.e. the task can either not be performed at all, or can be performed in a very restricted manner.

4. I find Mrs Jamieson condition has mild not moderate functional impact on activities using her arms and hands. Mrs Jamieson is entitled to 5 impairment points from Table 2. This is a generous interpretation, as the evidence suggests the only activity listed in the Tables for this impairment she usually would have difficulty with, is picking up heavier objects. I accept however, that when she has pain and swelling there would be occasions when reaching up or out to pick up objects would be difficult. Although Mrs Jamieson experiences ‘some difficulty’ using a standard keyboard, and holding and using a pen or pencil, she is still able to perform those tasks successfully for 15 minutes, and then resume the activities after rest. I do not regard that as sufficient impairment to meet the criteria under 10 points of Table 2. She has no significant difficult performing tasks (a), (b) and (d). Her impairment is not severe enough to qualify for 10 impairment points.

5. After the hearing of this matter the applicant’s solicitors sought leave to tender a further document. Mr Hamilton for the Respondent did not object. This document is a report from Occupational Therapist Kellie Dunn, dated 5 June 2012.[10] Both parties were given the opportunity to make written submissions in relation to that document. I have duly considered this evidence in my final decision.

   [10] Exhibit 4.

   DECISION

6. Mrs Jamieson is entitled to 10 impairment points from Table 1 (until on or before October 2014), and 5 impairment points from Table 2. As she does not have 20 impairment points she does not meet the requirements of 94(1)(b) of the Act. There is no need to assess her continuing ability to work, however I note in passing that although Mrs Jamieson claims she would be unable to return to her previous employment due to her current impairment, Dr Bassan suggested Mrs Jamieson was capable of working part time in a call centre or similar type of employment. On the evidence of the JCA and

   
   

   Dr Bassan, it is unlikely Mrs Jamieson would satisfy s 94(1)(c) of the Act.

7. The Tribunal affirms the decision under review.

I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of
Dr M Denovan, Member

..........................[SGD]............................................

Associate

Dated 22 August 2013

Date of hearing	1 August 2013
Solicitor for the Applicant	Mr Matthew Woods, Woods Prince Lawyers
Solicitor for the Respondent	Mr Bob Hamilton, Departmental Advocate