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

[2018] AATA 2153

KSWB and Secretary, Department of Social Services (Social services second review) [2018] AATA 2153 (10 July 2018)

Division:GENERAL DIVISION

File Number:           2017/5246

Re:KSWB

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:10 July 2018

Place:Perth

The decision of AAT1 is affirmed.

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

Member C Edwardes

CATCHWORDS

Social Security – disability support pension – medical conditions – impairment tables – continuing inability to work rating – participation in program of support – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth) – s 35(3)

Social Security Act 1991 (Cth) – s 94, s 94(1), s 94(2), s 94(3B), s 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Sch 2 Cl 4 (1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(7),
s 7, s 8, s 8(1), s 9, s 10, s 11, s 11(1), Table 1, Table 8

CASES

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

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Member C Edwardes

10 July 2018

THE APPLICATION

1. This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1), dated 17 August 2017. The AAT1 affirmed a decision to reject the Applicant’s claim for Disability Support Pension (DSP) lodged on 30 December 2016 (T2 4) (R1).

   INTRODUCTION

2. On 30 December 2016, the Applicant lodged a claim for Disability Support Pension involving conditions of Dysphonia, Paradoxical Vocal Cord Dysfunction, Asthma, Back Pain, Sjogren’s Syndrome and/or Sicca Complex and Urogyhae (T81 302) (R1).

3. The claim was rejected by an officer of the Centrelink and the Applicant was advised of this rejection by letter dated 6 January 2017 (T85 311) (R1). The reason for rejection of the application was on the basis that the Applicant had failed to attain an impairment rating of 20 points or more (T85 311) (R1).

4. The Applicant requested review of the decision by the officer of Centrelink. The review was undertaken by an Authorised Review Officer (ARO) and the Applicant received notification of such (T99 343) (R1).

5. On 5 May 2017, the ARO advised the Applicant of a number of findings:

   ·You have the following permanent conditions: dysphonia, paradoxical vocal cord movement and asthma.

   ·Your conditions of degenerative changes to spine, fibromyalgia, sicca syndrome and urogynaecology condition are not accepted as being permanent as they have not been fully treated and stabilised.

   ·Your total impairment rating is 10.

   ·You do not have an impairment rating of 20 points or more.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment (T100 344-350) (R1).

6. As a result of the decision of the ARO, the Applicant lodged an application with AAT1 on 5 May 2017 (T2 5) (R1).

7. In a decision dated 17 August 2017, the AAT1 determined that the Applicant had generated an impairment rating of 10 points under the Impairment Tables (T2 14) (R1).

8. AAT1 found the Applicant met the qualifications for DSP under section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act) from medical reports in respect to the following conditions:

   ·asthma;

   ·dysphonia;

   ·bladder prolapse;

   ·Sjogren’s syndrome; and

   ·Fibromyalgia.

9. On 1 September 2017, the Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) for a review of the AAT1 decision dated 17 August 2017 (T1 2-3) (R1).

10. The Applicant lodged this claim for review on the basis that her application to AAT1 failed because the Applicant’s conditions only generated 10 points under the impairment tables (T2 14) (R1).

11. The Application for review stated:

    My reason for Appeal (sic) is:

    Because I believe the review is unfair, as the legislation does not protect people that have a multitude of different issues, where it is clear they cannot hold down a job, and any attempts in doing so would make them more disadvantaged than what they already are, and as in my case includes being made more unwell.

    This too includes that the Impairment Tables do not sufficiently including (sic) my conditions within them respectfully and respectively. Like under Table 12 – Visual Function, watering of the eyes is included within it, yet the opposite being severe dry eyes is not.

    And (sic) then subsequently, Sjogren’s – Sicca which includes severe dryness within a number of other individual areas and or medical conditions including, dysphonia (severe-mouth dryness), Sicca (severe-dry eyes), and or (sic) other areas like perineal and overall skin, with that then becoming a separate collective condition of Sicca-Sjogren’s as I have.

    Also this is only one of a number of examples that has occurred within these processes.

    As well as the mechanisms within these processes, fail (sic) to include and further protect individuals like myself within it in relation to entering a Program of Support (POS), as is needed if an impairment rating of 20 points is not achieved under a single Impairment Table rating, being then a POS is to include 18 months of participation within a 3 year period to be completed.

    Yet, as I have entered the OSP claim application process on both accounts, this has not been able to be established (as I understand it to-date) as there is no a mechanism to enable it to occur, as if it is entered under an appropriately Certified Centrelink Medical Certificate stating an individual [like I am], is not fit to work –including up to 8 hours per week, on entering the DSP claim processes on both occasions, cannot occur.

    And (sic) as such I do not believe the Tribunal has taken into account within its consideration adequately, the medical information provided. To which I would like to request a decision be made by a Government Doctor, being a DMA (Department Medical Officer) who is no less that a Specialist that is well versed in all my medical conditions within their subsequent field(s).

    In addition, this is to take into account “the term appropriately qualified medical practitioner has been defined to mean a medical practitioner (as defined in subsection 23(1) of the Act) whose qualifications and practice are relevant to diagnosing a particular condition.” Explanatory Statement – Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, Explanatory Statement to F2011L02716”.

    And (sic) within these processes they are not and do not take into consideration the sheer number of medical treatments, and process, that I am required to undertake as a part of all their assessments. And then the financial accessibility I have in doing so within the payment means that I have, and have been allocated as well, and this is taking a purely basic fundamental perspective within all of this too (T1 3) (R1).

    (Original emphasis.)

12. The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Act.

13. The matter was heard in Perth on 25 June 2018. The Applicant appeared in person with the assistance of an advocate, Ms Cox, and the Respondent was represented by Mr Bishop from Mills Oakley.

    RELEVANT LEGISLATION

14. The relevant provisions governing eligibility for DSP are contained in the Act and the Social Security (Administration) Act 1999 (the Administration Act).

15. Section 94 of the Act provides the criteria for DSP, relevantly:

    1A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person's impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)     person has a continuing inability to work;

    (ii)    …

16. Accordingly, for a person to be qualified for DSP, the person must satisfy all of the following criteria including:

    ·having a physical, intellectual or psychiatric impairment; and

    ·the impairments must be assigned a rating of 20 or more points under the Impairment Tables; and

    ·the person must have a continuing inability to work.

    Assessing impairments and assigning an impairment rating

17. The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables”.

18. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    5… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.

    6The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

    Subsections 6(5), 6(6) and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsection 8(1) of the Determination stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

19. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”. 

    Continuing inability to work

20. As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:

    2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases – either:

    (i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)    if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

    (Emphasis added.)

21. ‘Severe impairment’ is defined in subsection 94(3B) of the Act:

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

22. Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.

23. Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

    QUALIFICATION PERIOD

24. Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for DSP. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was registered by Centrelink, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 30 December 2016 to 31 March 2017 inclusive, and is known as the “Qualification Period”.

25. For a claim to be successful, a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at [1].

26. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).

    ISSUES

27. The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of section 94(1) of the Act.

28. This requires consideration of whether at the time of the qualification period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment;

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.

    EVIDENCE

29. As mentioned above, the matter was heard in Perth on 25 June 2018. The Applicant appeared in person with the assistance of an advocate, Ms Cox. The Respondent was represented by Mr Bishop of Mills Oakley.

30. The Tribunal would like to thank all parties for the assistance they provided during this hearing.

31. The Tribunal had the following evidence before it:

    ·Exhibit A1 – Statement of Facts, Issues and Contentions dated 12 January 2018.

    ·Exhibit A2 – Application Outline dated 31 October 2017.

    ·Exhibit A3 – Table of the Applicant’s Medical Conditions with the corresponding Treating Practitioners.

    ·Exhibit A4 – Letter from Dr Nishith Bhargava, DCD Periodontics Registrar, dated 9 October 2017.

    ·Exhibit A5 – GP Mental Health Care Plan (Hamilton Hill Medical Centre).

    ·Exhibit A6 – Claim for Disability Support Pension or Sickness Allowance claim dated 22 February 2015.

    ·Exhibit A7 – Letter from Dr Saloni Shah, General Practitioner, dated 29 June 2017.

    ·Exhibit A8 – Bone Densitometry Screening by Dr Sean Lim, Consultant Radiologist, dated 30 June 2017.

    ·Exhibit A9 – Letter from Sean Ryan, Optometrist, dated 15 June 2017.

    ·Exhibit A10 – Email from Dr Andrew Boyd dated 24 May 2017.

    ·Exhibit A11 – SKG Radiology Report by Dr Weng Chin dated 5 May 2017.

    ·Exhibit A12 – XR Sacro lilac joints, Spine Lumbo-Sacral XR Report by Dr Luke Matar dated 29 March 2017.

    ·Exhibit A13 – Pathology Report by Dr Kalani Kahapola, Pathologist, dated 1 March 2017.

    ·Exhibit A14 – Report by Dr Wally Knezevic, Consultant Neurologist, dated 26 October 2016.

    ·Exhibit A15 –Outpatient Progress Notes by Laura Snowball, Senior Physiotherapist, dated 25 November 2015.

    ·Exhibit A16 – Letter from Thea Peterson, Speech Pathologist dated 15 February 2013.

    ·Exhibit A17 – Employment Tax Summary from December 2016 to July 2017.

    ·Exhibit A18 – KEMH Bladder Training Information Sheet.

    ·Exhibit A19 – Social Security (Tables for Assessment of Work-related impairment for Disability Support Pension) Determination 2011.

    ·Exhibit A20 – Social Security (Tables for Assessment of Work-related impairment for Disability Support Pension) Determination 2011 – Explanatory Statement.

    ·Exhibit A21 – Disability Support Pension Recipients (Compulsory Requirements).

    ·Exhibit A22 – Letter from Gosia Stasinski, Registered Psychologist, dated 1 September 2016.

    ·Exhibit A23 – Letter from Dr Maria Zangari, General Practitioner, dated 27 September 2017.

    ·Exhibit A24 – Job Plan – Information Sheet.

    ·Exhibit A25 – Employment Pathway Job Plan.

    ·Exhibit A26 – STEPS – Self-Training Educative Pain Sessions Handout.

    ·Exhibit A27 – Deferral of lodgement and payment of income tax return for year ending 30 June 2016.

    ·Exhibit A28 – Health and Disability Services Complaints.

    ·Exhibit A29 – Complaint relating to Fiona Stanley Hospital.

    ·Exhibit A30 – Employment payment summaries.

    ·Exhibit A31 – Employment income details.

    ·Exhibit A32 – Hearing Certificate.

    ·Exhibit R1 – Tribunal documents (T1-T109).

    ·Exhibit R2 – Statement of Facts, Issues and Contentions dated 8 December 2017.

    ·Exhibit R3 – Hearing certificate.

    ·Exhibit T4 – Supplementary documents.

32. The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

33. The Secretary made the following contentions in respect to the medical conditions of the Applicant:

    Dysphonia and paradoxical vocal cord conditions

    5.17The applicant has been diagnosed with dysphonia and a paradoxical vocal cord condition by Dr Geoffrey Hee, Ear Nose Throat Surgeon. A letter from Dr Hee dated 15 February 2013 states:

    I have reassured [the Applicant] that I have not identified any serious pathology. I explained that she has muscle tension dysphonia and this can sometimes occur after a viral illness. The muscular imbalance leads to inefficient vocalisation and contributes to discomfort and early vocal fatigue. This should respond well to therapy. [T14, p 90]

    5.18The applicant also attended with Dr Musk, a Respiratory Physician. A letter from Dr Musk dated 29 May 2014 states:

    In my opinion [the Applicant] suffers from dysphonia and cough and does not have objective evidence of lung function impairment or current asthma.

    In my opinion she is fit to resume work regularly without risk to health and wellness of self or others. [T25, pp 104-106]

    5.19The applicant attended with Dr Hee again in 2015. Dr Hee provided a letter dated 23 July 2015 which stated:

    Her voice at present is very good, but can deteriorate whenever she develops a viral upper respiratory infection or has an exacerbation of her asthma.

    On examination today, [the Applicant]’s voice sounded normal and she as (sic) able to speak for over 40 minutes without any hindrance. I performed a fibreoptic laryngoscopy and did not identify any structural abnormality. [T57, p234]

    5.20The applicant describes her symptoms arising from her paradoxical vocal cord motion dysfunction as follows:

    Vocal cord/muscles spasms, tension, breathlessness

    Breathlessness on exertion, like exercise, walking and especially on inclines and sexual activity

    Vocal cord muscle spasms – whilst eating, drinking and breathing: can cause a 60-90 second inability to breath [sic] in or out, this gives at times a choking, and/or inability to breath [sic], move food, and/or drink during this time period – which is and can be quite unnerving while it lasts. As well as at times having drink or food splattering due to the spasm preventing swallowing, which is less than becoming if out and about or with others.

    Hypersensitivities to environmental triggers (like pollens, dust, either too cold/hot air conditioning, and viral infections, and environmental inhalants like perfumes, colognes, cleaning products, stress etc.), avoidance of them is required as often as possible to prevent exacerbation of symptoms. [T107, p 378]

    5.21As to her dysphonia condition the applicant describes her symptoms as:

    Most often a dry, sore throat, poor vocal ability and projections, tension, muscle spasms, croakiness (an irritated cough – this has been addressed to prevent it occurring within me as often as possible)

    An inability to modulate, poor or no vocal power, breathing difficulties, breathlessness

    Along with inconsistent vocal usage – reduced capacity to use voice for extended periods of time, which varies, dependent· on occurrence frequency and severity.

    A constant need to be mindful of environmental triggers (like pollens, dust, either too cold/hot air condition, and viral infections, and environment inhalants like perfumes, colognes, cleaning products, stress, etc.) and avoidance of them

    Requirement to take medication to aid in prevention and relief of the condition, its symptoms and severity

    Hypersensitivities to preservatives, meaning all medications need to be preservative free (otherwise exacerbation of my condition(s) occur rather than relief). This initially occurred when Thea Paterson gave me artificial saliva – my vocal condition was exacerbated considerably from this action. [T 107, p 380-381]

    5.22The medical evidence indicates the applicant has undertaken speech therapy with Sally Mann, Speech Pathologist [T69, T71, T74].

    5.23A Centrelink Medical Certificate completed by Dr Maria Zangari on 9 March 2017 indicates the Applicant’s ‘dysphonia, paradoxical vocal cord dysfunction and asthma’ result in symptoms of ‘shortness of breath, husky voice most of the time, wheezing, tiredness if talks for a long time’. As to the impact of those conditions on the Applicant’s capacity for work or study that certificate states ‘endurance problems’. [T89, p317]

    5.24The AAT1 noted that ‘the tribunal’s meeting with [the Applicant] lasted for well over an hour. During that time she spoke with no apparent difficulty although with a fairly quiet voice.’ [T2, p 12]

    5.25   The applicant’s dysphonia and paradoxical vocal cord conditions are described variously in the medical evidence as ‘intermittent’ and ‘mild’. The applicant has been observed to speak for significant periods with little apparent difficulty on a number of occasions.

    5.26The Secretary accepts that the conditions of dysphonia and paradoxical vocal cord were fully diagnosed, treated and stabilised at the time of the claim”.

    …

    Urogynaecological condition

    5.31A letter from Dr Saloni Shah dated 3 February 2015 confirms ‘the patient is seeing me since 11/09/2014 for – recurrence of uterovaginal prolapse affecting urinary continence. I have referred her to PT & also to Gyn specialist for further management’. [sic] [T41, p 153]

    5.32The evidence indicates the applicant was referred for a surgical procedure in relation to this condition. A medical certificate dated 7 August 2015 indicates the applicant was ‘awaiting major Gyne surgery – booked on 31 August 2015. A discharge summary dated 31 August 2015 indicates the applicant underwent ‘anterior and posterior vaginal repair + cystoscopy as planned’.

    5.33A letter from Dr Michelle Atherton, Consultant Urogynaecologist dated 12 November 2015 notes she has ‘reviewed the applicant 2.5 months after her surgery. She states that ‘her bladder is not too bad – [the Applicant] notes less urinary urgency, frequency and urge incontinence but it is not cured’.

    5.34A letter from Dr Pierre Smith, Sessional Gynaecology Consultant dated 8 September 2016 [T79, p 275] states:

    I have reviewed [the Applicant] in our Urogynaecology Clinic today regarding her ongoing bladder issues.

    Her main concern is that she smells of urine. She has noted that her pad is damp, even though she is not aware of any incontinence and there is a significant smell of urine. She is not wearing a pad, but has to shower in the middle of the day when she takes Ural smell reduces.

    …

    [The Applicant]  also has ongoing problem with muscle spasms. This is in the form of dysphonia, muscle spasms and pelvic floor spasms. She is currently taking Restavit although it makes her drowsy and she is planning to ask you about instituting Baclofen. I told her to discuss this with you and she want [sic] a referral to a Neurologist.

    She does not report any prolapse symptoms and certainly on examination today the vaginal walls were well-supported.

    I note that [the Applicant] has an appointment with the Pain Clinic and they will deal with her general pain symptoms, including occasional bladder pain if her bladder is full.

    Because of her ongoing issues with dry mouth and dry eyes...I changed her Vesicare to Mirabefgron, 25mg a day.

    5.35The applicant describes the impact of this condition in the following terms:

    I need to be able to take toilet breaks when needed, I am unable to sit or stand for extended periods of time, or lift, or do manual handling, otherwise my condition will be exacerbated. [T107, p 361]

    …

    the frequent toileting has issues within day to day life, as well as within a workplace – trying not to go too often, but go often enough to not create UTI, and preventing odour occurring, and not exceeding break times, and only going within breaks [T107, p363]

    5.36The Secretary notes that a letter from Dr Saloni Shah dated 10 March 2017 includes the following reference:

    Urogynaecological issues – bladder & bowel dysfunction – 20 points – Table 13 under (2) – (b) & (3) – (b)

    5.37The Job Capacity Assessment Report dated 1 May 2017 notes that the assessor contacted the applicant’s GP Dr Shah on 21 April 2017 in relation to the status and impact of this condition, given her evidence that the condition is fully treated and stabilised and attracted a rating of 20 points. That report records:

    Dr Shah confirmed that the client is not incontinent of urine but has urge incontinence although the client has disclosed she smells of urine and her pad is damp. Dr Shah confirmed that the client has not yet completed a Pain Painmanagement [sic] program as recommended from which she may benefit. [T98, pp 335-336]

    5.38The Secretary contends that the applicant’s urogynaecology condition is fully diagnosed but cannot be regarded as fully treated and stabilised. The applicant was referred to a Pain Clinic on 8 September 2016 in order to improve her symptomology associated with this condition. There is no evidence that this treatment has yet been undertaken.

    …

    Asthma condition

    5.42A letter from Dr Maria Zangara dated 1 August 2013 confirms ‘patient suffers from chronic asthma’. That letter also states ‘she is fit to undertake all the duties according to her job role description, however, is [sic] she gets an acute asthma attack triggered by a virus or other triggers she will not be able to speak clearly because of laryngitis, production of mucous and airway obstruction’.

    5.43 Dr Musk, Respiratory Physician reviewed the applicant on 27 March 2014. Dr Musk provided a letter dated 29 May 2014. He noted that her lung function assessment ‘showed normal lung volumes, expiratory flow rates and gas transfer’. He stated that ‘as she was previously considered to have asthma by Dr. Martin Phillips, respiratory consultant, it is possible that this may recur but, in my opinion her current prognosis is excellent the worsening with upper respiratory infection and with exposure to certain allergens would be consistent with this.

    5.44 A letter from Professor Eli Gabbay dated 15 July 2014 confirms he is ‘comfortable with a diagnosis of asthma’. He stated:

    She will have intermittent episodes of breathlessness with chest tightness, occasional wheeze, a cough productive of sputum and sinus symptoms with nasal catarrh, ear blockage and nasal congestion.

    …

    It is evident to me that [the Applicant] has vocal cord dysphonia. Additionally, I am comfortable with the diagnosis of asthma. The wheeze on forced expiration, the worsening with upper respiratory infection and with exposure to certain allergens would be consistent with this.

    .. (sic)

    Her asthma is well controlled on a combination of Bricanyl and Tilade and in my view does not impact on her ability to work. [T27, pp 111-112]

    5.45A letter from Dr Maria Zangari dated 10 March 2017 comments on the asthma condition as follows:

    She has had asthma on and off since January 2004. However, it became worse in 2011 when she was travelling by train to work at Synergy (usually triggered by perfumes people were wearing to which she was sensitive). The asthma attacks continued at work as other employees used to top up perfumes on themselves during the day and she would get chest infections. [T90, p 319]

    5.46The medical evidence indicates the applicant’s asthma condition is long standing and has been treated as recommend by various specialist practitioners. The Secretary accepts that this condition was fully diagnosed, treated and stabilised at the time of the claim.

    …

    Sicca Syndrome

    5.50The applicant has been diagnosed with Sicca Syndrome which causes bilateral eye dryness.

    5.51A letter from Sean Ryan, OPSM dated 7 October 2014 states ‘I examined [the Applicant] on the 2nd of October and found she has dry eyes due to Meibomian gland dysfunction, this can lead to dry stinging eyes with blurred vision when reading or watching tv due to the reduced blink reflex.’ [T29, p 119]

    5.52A letter from Dr Ai Tan, Consultant Rheumatologist dated 9 April 2015 states:

    [the Applicant]’s symptoms are in keeping with a sicca complex however at the moment she would not meet diagnostic criteria for Sjogren’s syndrome.

    [the Applicant] will continue with the symptomatic treatments for lubricating the eyes and mouth.

    It may be worth considering a punctal occlusion to the eyelids and she will see you again in the future regarding this.

    5.53A letter from Dr Michael Wertheim, Ophthalmologist dated 15 April 2015 states:

    [the Applicant] has Sicca Syndrome which essentially includes bilateral severe dry eyes. These dry eyes are causing [the Applicant]  to have some blurred vision particularly double vision on occasion. 8  7 T47, pp 188-189. 8 T49, p 191.

    5.54A letter from Dr Michael Wertheim, Ophthalmologist dated 22 July 2015 states:

    I have been seeing [the Applicant] since March 2015 when she was referred to me by her optometrist for severe dry eyes. She has been diagnosed with Sicca Syndrome which gives her systemic dryness and particularly severe symptoms with regards to her eyes. We have tried multiple lubricant drops for [the Applicant] but she seems to be intolerant to a lot of them and can only tolerate an ointment which she tends to put in at night but sometimes during the day as well. The ointment will blur her vision up and she will struggle with everyday tasks.

    …

    I have referred [the Applicant] on to Freemantle Hospital Eye Clinic in the public system for possible use of Autologous Serum to try and treat her dry eyes.

    5.55A letter from Dr Tom Cunneen, Ophthalmologist dated 14 September 2015 states: [T67, pp 261-262]:

    I have inserted punctal plugs today and suggested the above treatment. If this is not sufficient to manage her symptoms then I will occlude her upper puncta.

    5.56A letter from Mei-Ling Tay-Kearney, Associate Professor of Ophthalmology dated 21 October 2015 states:

    Since the punctal plugs were inserted, her eyes are feeling more comfortable and Schirmer’s test today showed tear production of around 10mm in each eye. This was previously 3mm.

    At this stage I have just fine tuned the way she massages her eyelids to get the oil glands going and suggested that she tries VITA-POS not only at night but during the day for symptomatic relief. I have also added the use of SteriLid followed by the warm compress using the thermal bag and massaging. Obviously one can step up treatment if necessary and I have reassured her that she is in good hands under the care of Dr Cunneen.

    5.57A letter from Dr Con Anastas dated 4 March 2016 states:

    The left inferior temporary punctal plug had spontaneously dislodged and was replaced in the clinic on this occasion. Following discussion and assessment, I agree that [the Applicant] is highly likely to benefit from permanent punctal ablations (firstly the inferior puncta). She has been referred to the Minor Procedures Clinic in this department in this regard. [T77, p 272] ·

    5.58The applicant has described the impact on her visual function as

    Eyes become dry, stinging, scratching, red, roar, and sore with blurred vision when reading, using computer, laptop, phones (media devices) or watching tv due to the reduced blink reflex. And I am unable to see or focus clearly (for approx. 5 – 20 mins) following use of lubricant for a period of time which varies dependant lubricant type and dryness or irritation in my eyes. [T107, p 361]

    …

    For my Eyes – Mean I am not to overuse my eyes with reading, computer, laptop, phone and TV use as it can make it difficult to see,- And lubricating my eyes as needed, prevents me from seeing anywhere from 5 – 20 minutes following it [T107, p363]

    5.59The applicant’s GP, Dr Saloni Shah provided a letter dated 10 March 2017 which states:

    Sicca Syndrome – 10 points (voice related – Table 8 – under (1)(b) 20 points (vision related – Table 12 – under (a)(b)(d) – (i)& (ii) & 20 points (skin related – Table 14 – under (1) – (c), (d) & (e))

    5.60The Secretary notes that the Job Capacity Assessment Report dated 1 May 2017 [T98, p 335] states that:

    The assessor contacted the client’s GP on 21 April 2017 to discuss the status and functional impacts of this condition given that in her medical evidence she stated the condition is fully treated and stabilised and has specified an impairment rating of 20 points on Table 12 (Visual Function). Dr Shah advised she often does not receive the specialist reports however was able to locate it and advised that she was not in a position to comment on the functional impact since the client’s recent ophthalmic procedure, and that her patient is being treated under specialist care and she does not know all the treatment that is available.

    5.61A letter from Maria Franchina of the Ophthalmology Outpatient Clinic dated 21 July 2017 relevantly states:

    As you are aware, [the Applicant] has undergone multiple attempts at punctal plugs and upper and lower lid cautery but unfortunately remains highly symptomatic. She is currently using Poly Vise ointment in both eyes at least one to two times a day but more often when doing computer only work. She also requires Vita-POS ointment nocte in both eyes.

    [The Applicant] was also seen by my consultant, Dr Con Anastasm and we are considering whether addition of autologous serum or restasis may help alleviation [of the Applicant]’s symptoms. In addition, she may benefit from further punctal cautery to completely occlude both upper and lower puncti.

    We have organised for [the Applicant] to be seen by one of our corneal specialists, Dr Tom Cuneen, over the next few weeks and we will keep you updated on her progress.  [T105, p 359]

    5.62The Secretary contends that treatment options are still being explored in relation to this condition. In particular, Maria Faranchina has stated on 21 July 2017 (outside the qualification period) she may benefit from further punctal cautery or autologous serum or restasis. As further treatment was yet to be undertaken, which was likely to result in improvement to function given the Applicant’s positive response to temporary punctal plugs, the Secretary contends that the condition could not be regarded as fully treated and stabilised as at the time of the claim.

    …

    Fibromyalgia condition

    5.65The applicant told the AAT1 that she began to experience widespread joint pain in January 2017. [T2, p 13, para 46]

    5.66A letter dated 10 January 2017 from Dr Ai Tran, Rheumatologist diagnosed the applicant with fibromyalgia. That letter also stated

    ‘Plan

    1.    [The Applicant]’s symptoms meet the criteria for fibromyalgia.

    2.    An information sheet has been provided and I shall refer it to the STEPS pain program at Fiona Stanley Hospital for a multidisciplinary team approach to the management of her symptoms.

    3.    In the interim she shall trial Cymbalta 30mg daily for four weeks and if there are no side-effects than [sic] the dose will be increased to 60mg daily thereafter.

    4.    Following the appointment with the pain team if the symptoms are not well controlled then she will return for further review.’ [T86, p 313]

    5.67The condition was first diagnosed during the qualification period. Treatment was yet to be undertaken at that time, with the Applicant being referred to a pain clinic. The Applicant first attended the pain clinic outside of the qualification period, and, as noted by the AAT1, management of her fibromyalgia is in the early stages. It could not be concluded that, as at the qualification period, treatment for the fibromyalgia condition was unlikely to result in significant functional improvement within 2 years. The Secretary accordingly contends that this condition was not fully diagnosed, treated and stabilised at the time of claim.

    Spinal condition

    5.68A letter from Dr Weng Chin dated 28 May 2004 provides a diagnosis of ‘L5/S1 spondylitic spondylolisthesis, together with advanced L5/S1 disc degenerative change’. [TS, p 68]

    5.69The Secretary notes that Disability Support Pension Medical Reports completed by Dr Maria Zangari dated 29 December 2014 and 20 February 2015 list the applicant’s ‘back pain’ as a condition that ‘causes minimal or limited impact on the applicant’s ability to function’. [T34, p 136 and T43, p 176].

    5.70There is no evidence of investigations and treatment undertaken for this condition. There is no medical evidence of the Applicant’s prognosis with appropriate treatment. The Secretary accordingly contends the applicant’s spinal condition was not fully treated and stabilised at the time of the claim.

    5.71The Secretary contends that even if the Tribunal were to find that the spinal condition was fully treated and stabilised at the qualification period (which is not conceded), there is no corroborating evidence of any functional impairment arising out of the spinal condition.  The medical evidence indicates the condition in fact causes minimal or limited impact. The appropriate rating is 0 points under Table 4” (R2 5-15).

    (Original emphasis.)

1. The Applicant makes the following contentions:

   The qualification period

   5.1Section 13, subclause 1 – 3(ae) of the Social Security (Administration) Act 1999 provides that the Applicant’s qualification for disability support pension is to be determined during the period 13 December 2016, and or the (sic) on 30 December 2016, or within 13 weeks thereafter (qualification period).

   5.2If circumstances, where it is appropriate for the Applicant’s new claim lodgment (sic) to be accepted as the requirements set during a program of support an exemption can be applied under section 94(3C), part 2, subsection 7(5b), within the Social Security (Active Participation for Disability Support Pension) Determination 2014. Provides within,

   (a)Subsections 7(3) – (5) of the POS Determination, a number of exceptions to the general requirement that a person must participate for at least 18 months, and

   (b)Subsection 7(5) sets out that a person can satisfy the requirement in paragraph 7(1)(b) if at the end of the relevant period (as defined in section 5) the person is participating in a program of support and ‘is prevented, solely because of the impairments from which the person suffers, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program (A1 5).

2. The Applicant summarised her arguments as:

   1I am here because I believe the Rejection and Reviews undertaken of my DSP Claims are unfair:

   -     Because the legislations does not protect people like me that have a multitude of different issues, where it is clear they cannot hold down a job,

   -     And any attempts in doing so would make them more disadvantaged than what they already are, and as in my case being made more unwell,

   -     Because they have not and do not prevent me from being able to gain employment without being made more unwell, as has occurred within my claims in February 2015, December 2017 and beyond.

   -     This too includes that the Impairment Tables do not sufficiently include my medical conditions within them respectfully and respectively. Like under Table 12 – Visual Function, watering of the eyes is included within it, yet the opposite being severe dry eyes is not.

   -     As Sicca – Sjogren’s includes severe dryness within a number of other individual areas and or medical conditions including, dysphonia (severe- mouth dryness), sicca (sic) complex, non-sjogren’s (sic) aqueous deficient dry eye, keratoconjunctivitis sicca syndrome (severe-dry eyes), and areas like urogynae (perineal dryness) and overall skin, with that then becoming a separate collective condition as I have.

   -     As well as they do not allow me to Actively Participate in a POS, without negating on my other Private Insurance Scheme Requirements, ie. not fit for work within the area of injury for my Worker’s Compensation claim, and or (sic) overall for my Total and Permanent Disability (TPD) claim.

   -     Through being repetitively over assessed functionally and then in a capacity to work, due to under assessments of my medical conditions,

   -     Through a lack of considerations of the term ‘reasonable treatment’(s), for individuals like myself, both physically and financially within these processes,

   -     Primarily because of the Government’s failure to provide mechanisms, where claimants can gain appropriate supporting medical documentation (including diagnosis, treatment, and functional impact) in a timely manner, in a language that is conducive to all,

   -     In conjunction with an Impairment Table, that adequately includes all medical conditions with ease,

   -     Which leads to the JCA, ARO, and Tribunal Member not taking into account within their considerations adequately the medical information provided because of these,

   -     To which as a result, I would like to request a decision be made by a Government Doctor, being a DMA (Department Medical Officer) who is no less that a Specialist that is well versed in all my medical conditions within their subsequent field(s).

   2Considerations I believe that were not correctly taken into account are:

   -     Legislation Principle of Administration – Section 8(f)

   -     Reasonable Treatment(s) – Section 6(7)

   -     Participation in public and private insurance schemes – Not fit for work in the area of injury and or injuries

   -     All Available Information – Medical evidence, other relevant information supplied, including computer and or file notes

   -     Supporting Documentation and Extension of Time – Section 94, or (3.6.2.10)

   -     Rejection, Basis – Section 6.2.5.03

   -     Permanent Conditions – Section 6(4)

   -     Appropriately Qualified Medical Practitioner – Section 3, Interpretation

   -     Fully Diagnosed, Treated and Stabilised – 6(5) and (6)

   -     Single Condition Causes Multiple Impairments – Sections 10(3), (4), (5) and (6)

   -     Multiple Impairments – Section 10(5) & (6)

   -     Impairment Ratings Assigned – Section 11

   -     Fluctuating or Episodic – Section 11(4)

   -     20 points or more under the Impairment Tables – Section 94 (1)(b)

   -     What Should Not be Included in a Job Plan – Sections 501A (4), 544B (1B) and 606 (1B) or (3.2.8.40)

   -     Program of Support requirements (POS) – Section 94(5)

   -     Qualifying for DSP – Section 94(3C)

   -     Exemption – Section 94(3C), Part 2, Subsection 7(5) (A2 1).

3. The Respondent opened by resting on Exhibit R2, the Statement of Facts, Issues and Contentions, and confirmed the Qualification Period was 30 December 2016 to 31 March 2017.

4. The Respondent claimed that the Applicant had not completed a program of support (POS) and therefore needed 20 impairment points from a single table to qualify for DSP.

5. The Secretary also claimed that the Applicant had a work capacity of 15-22 hours within two years.

6. The Applicant disagreed with the Respondent’s statement and claimed there was evidence to show she was not fit for work.

7. She said she was unwell and suffering many medical conditions.

8. Under cross-examination by Mr Bishop, the Applicant gave the following evidence:

   ·She worked for three hours per month as an UBER driver.

   ·She drove for 20-30 hours per week in 2015 and 15-20 hours per week until late 2016 when her medical conditions deteriorated.

   ·Her medical conditions were predominately triggered by external environmental factors.

   ·In 2017 there was a diagnosis concerning infections in her mouth.

   ·She undertook anti-biotic treatment which appeared to assist with her other conditions and followed up with a further course.

   ·From the evidence provided by the Applicant, there may have been a misdiagnosis in respect to many of her earlier respiratory conditions. Whilst not a solution, they do assist with the treatment of her conditions.

   ·She said she is still undergoing treatments. Up until 2017, her dental issues were not diagnosed.

   ·She agreed she did not complete a POS.

9. As the Applicant agreed she had not completed a POS, the Respondent asked her to identify which of the Impairment Tables would enable her to generate an impairment rating of 20 points in order to satisfy the requirements for DSP.

10. The Applicant contended that Table 1 of the Determination would generate 20 points when combining three of her respiratory conditions.

11. She was asked against each of the descriptors at Table 1 whether she could undertake the functions described and the Applicant accepted that:

    ·she could walk around a shopping centre without assistance;

    ·she drives a car;

    ·she could walk from the carpark into a shopping centre without assistance;

    ·she could use public transport; and

    ·she could perform light day to day household activities.

12. Whilst the Tribunal accepts many of these activities at paragraph 44 are significantly difficult for the Applicant to undertake, she is not unable to complete them.

13. This means that the Applicant does not satisfy the requirement to generate 20 points under Table 1.

    CONSIDERATION

14. On the basis of the evidence before the Tribunal, the Tribunal notes that the Applicant filed an application for DSP (T81 277-306) (R1). The Tribunal notes whilst the Applicant signed the claim form on 13 December 2016, a received stamp shows the Department of Human Services received the application on 29 December 2016 (T81 277) (R1). On this basis, the Tribunal accepts that for all intents and purposes, the Qualification Period is for the period 30 December 2016 to 31 March 2017.

15. The Tribunal will now consider all the evidence before it both written and oral from the Applicant and Respondent.

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments

16. On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers from the following medical conditions – Dysphonia and paradoxical vocal cord, Urogynaecological, Asthma, Sicca Syndrome, Fibromyalgia and back pain.

17. There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from the conditions stated in paragraph 8.

18. The Tribunal finds therefore, the Applicant satisfies subsection 94(1)(a) of the Act.

    Whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Determination

    Asthma

19. The Applicant told AAT1 that:

    ·She first experienced asthma in her late teens, around the age of 17 or 18, when she was hospitalised with a severe attack when she was playing netball. After that she suffered seasonal attacks. The problem was mainly managed by her GP and she used puffers for prevention of attacks and for relief of symptoms. For many years the condition was well controlled.

    ·In 2010, when she went to work for Synergy, the attacks got worse. She felt she was exposed to a number of trigger factors such as perfumes and dust. She experienced increasing shortness of breath. This was in combination with the voice and throat problems she was also experiencing. She saw a number of specialists and at times needed steroid treatment with oral prednisolone.

    ·Her current treatment is primarily with Tilade and Bricanyl plus Singular. She also uses a Ventolin inhaler at times, but feels this is mainly for the voice and throat problems.

    ·She experiences shortness of breath and fatigue with exercise. She can manage to walk about 400 metres at a time, but is going slowly towards the end. She drives a car and is currently working on a casual basis ... At the most she can manage about three hours a day. She lives alone ... She can’t manage heavy housework such as vacuuming, but does her own shopping and can carry light loads (T2 9-10) (R1).

20. AAT1 determined on the basis of the evidence before it accordingly:

    31The tribunal noted reports from several respiratory and ENT specialists who had seen [the Applicant] about the combination of asthma and voice problems. Dr Bill Musk (respiratory physician) saw her in March 2014. At that time he found nothing to confirm asthma but acknowledged that past specialist diagnosis had been made and his normal findings could be an indication that the asthma was well controlled. Dr Eli Gabbay (respiratory physician) saw her in July 2014. He found an expiratory wheeze. Spirometry showed no evident airflow limitation, but there was borderline improvement with a bronchodilator. He said he was comfortable with the diagnosis of asthma, and that her current therapy was adequate (T2 10) (R1).

21. AAT1 found on that basis, the Applicant suffered from a mild impairment and allocated an impairment rating of 5 points under Table 1.

22. The Applicant contends:

    … taking into account the episodic nature when repetitively exposed to triggers the conditions, functional impact of their asthma condition is consistent with a moderate to severe impairment under Table 1.

    5.34The Applicant contends that the medical evidence is indicative of a moderate to severe, functional impairment arising from the asthma condition which supports a rating of 10 to 20 points under Table 1 (A1 7).

23. The Tribunal notes the following commentary that appeared against the treatments for Asthma:

    Asthma (permanent) – taking Brycinal, Tilade, Bisolvon and Singulair medication daily or when needed preventative and reliever, and to avoid triggers (T107 361)(R1).

24. This suggests that the Asthma is under control and can be categorised as a mild impairment. The ARO found:

    According to the medical evidence, the functional impact of your asthma is intermittent, breathlessness with chest tightness and occasional wheeze. You experience occasional symptoms (e.g. mild shortness of breath) … You are able to perform most work-related tasks (e.g. climbing a flight of stairs or heavier household activities) (T100 346) (R1).

25. The Applicant’s evidence at the hearing concerning her dental treatment, leads the Tribunal to determine that treatment for the asthma condition is still ongoing and therefore no impairment rating can be generated as a consequence of the flow on effect of the further treatments occurring.

26. Until the asthma condition is isolated and treatment is concluded, the Tribunal cannot conclude that the asthma medical condition is fully diagnosed, treated and stabilised (FDTS).

    Dysphonia and paradoxical vocal cord

27. The applicant told AAT1:

    ·In 2010 she started working ... She had done similar work in the past and had no problems.

    ·Soon after starting she began to have attacks of what was thought to be laryngitis, with a sore throat and croaky voice. During 2011 she had about 12 such attacks and had to take a lot of time away from work. She saw her own GP, and others, but no one could do much to help. Eventually she got a GP to refer her to an ENT specialist and she saw Dr Beinart in December 2012. He said she should change her job and suggested she needed speech therapy.

    ·She asked her regular GP, Dr Zangari, to refer her for a second opinion and in February 2013 saw another ENT specialist, Dr Hee. He diagnosed muscle tension dysphonia and referred her to Thea Peterson, a speech therapist and voice consultant. After a few sessions Ms Peterson referred her to the speech pathology department at Fremantle Hospital, where she saw Sally Mann on a number of occasions over the next three years. Treatment has been with various exercises and techniques to assist with voice and laryngeal function.

    ·In January 2016 she sought a further ENT opinion and saw Dr Francis Chai. He confirmed paradoxical vocal cord movement. He advised that there is no known cure for this problem and recommended management by a speech therapist and avoidance of trigger factors.

    ·Whilst this problem was being addressed she had a dispute with her employer ... They were not happy with the amount of time off she was taking and eventually dismissed her. She lodged a workers compensation claim on the basis that her work environment had caused the voice and throat problems and exacerbated her asthma. A legal dispute followed in which she was eventually successful and she received a financial settlement.

    ·She no longer has a regular job, but does part-time work … for a few hours each week (T2 10-11) (R1).

28. The Tribunal notes that AAT1 found this condition generated an impairment rating of 5 points under Table 8.

29. AAT1 found this on the basis that:

    35In a letter dated 17 March 2015, to lawyers involved in [the Applicant]’s dispute with her employer, Dr Hee noted that he had only seen her on one occasion, in February 2013, and noted the diagnosis of muscle tension dysphonia. He said this condition would limit her capacity for any position that was vocally demanding. His comments about prognosis were restricted by the fact that he had only seen her once.

    36The tribunal noted several letters and reports from Sally Mann, speech therapist. In July 2013 she reported that [the Applicant] had attended 11 outpatient therapy sessions and had been taught a number of techniques to address her dysphonia. She had been a compliant patient and treatment was successful. She had been discharged from the service.

    37Subsequent reports from Ms Mann indicate that Dr Hee referred [the Applicant] for further help in November 2015. In a letter dated 23 February 2016 Ms Mann said she was helping with the management of paradoxical vocal cord movement and intermittent mild dysphonia. Clinic notes for recent attendances record that [the Applicant] was stressed because of other health issues and her workers compensation dispute.

    38The tribunal’s meeting with [the Applicant] lasted for well over an hour. During that time she spoke with no apparent difficulty although with a fairly quiet voice. She told the tribunal she has good and bad days and is careful not to push herself (T2 10-11) (R1).

30. The Applicant contends that:

    … the medical evidence provided shows that the Applicant has difficulty with speech throughout most days for various reasons, and is consistent with ‘moderate difficulty in producing speech, difficulty coordinating speech movements and damage to speech structures e.g. vocal cords, and larynx which makes speech effortful, slow or sometimes difficult for strangers to understand.’

    5.60The Applicant contends, taking into account the episodic nature when repetitively exposed to triggers the conditions, functional impact does support a moderate to severe, functional impairment arising from her dysphonia condition and should attract a rating of 10 to 20 points under Table 8 (A1 9).

31. The treatments for this condition are outlined as – “permanent?) – hydration, take Singulair and to avoid triggers, and to carry out exercises given by speech therapist like laryngeal massage” (T107 361) (R1).

32. The evidence before the Tribunal by the Applicant falls within the same category as paragraph 52-3 above.

33. The Tribunal finds this condition is not FDTS.

    Urgynaecological condition

34. The Applicant told AAT1:

    ·In her teens she had a lot of problems with heavy painful periods. She was treated for endometriosis and had several laparoscopies. Treatment with male hormones was suggested, but she declined.

    ·She had several miscarriages during a long-term relationship but eventually had a successful pregnancy in 1989. After the birth she had various problems with bladder prolapse and ongoing endometriosis. About 25 years ago she had a hysterectomy and Manchester repair. This was very successful and for many years she was symptom free.

    ·However the symptoms of prolapse reappeared in 2015. She was referred for physiotherapy, but finally had surgery – anterior and posterior vaginal repair – performed at KEMH.

    ·Since the surgery there have been one or two problems with mild incontinence and lower abdominal discomfort. It has been suggested that the abnormal muscle spasms affecting her voice may be affecting abdominal muscles. She is continuing under the care of specialists at KEMH and is due to be seen there next month (T2 12) (R1).

35. AAT1 determined this condition was not fully treated and stabilised on the basis that further specialists review is to be undertaken, including treatment at the pain clinic at the time of the qualification period.

36. The Applicant contends:

    … there is sufficient corroborative evidence as to the functional impairment resulting from their Urogynaecological long standing conditions which were fully diagnosed, treated and stabilized at the time of the claim.

    5.108The Applicant’s moderate functional impacts result in ‘attention and concentration on a tasks are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;’ and, ‘the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition’.

    5.109The Applicant’s moderate impact results in ‘minor leakage from the bladder (e.g. a small amount of urine when coughing or sneezing) several times each day; and continence of the bladder has difficulties that result in interruption to tasks, work or training on most days’.

    5.110The Applicant’s moderate impact ‘of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days’.

    5.111The Applicant’s prolapses, urinary frequency, urgency and continence should be assessed as separate conditions. These were fully diagnosed, treated and stabilized at the time of the claim. These result in a ‘moderate impairment functional impact on Digestive and Reproductive, and Continence Function. These should generate 10 points each from Impairment Tables 10 and 13 (A1 16-17).

1. This Tribunal finds on the basis of the medical evidence before it that this condition is not fully treated and stabilised.

   Sicca Syndrome

2. The Applicant told AAT1:

   ·Two or three years ago she began to experience problems with her eyesight. For several years before that she had been seeing her optometrist, Sean Ryan, and since 2014 having treatment for dry eyes.

   ·In 2015 Mr Ryan referred her to an eye specialist, Dr Wertheim. He diagnosed Sicca syndrome, which is similar to Sjogren’s syndrome, and results in reduced production of tears, saliva and other bodily secretions. She had treatment with artificial tears and lubricants, which did not work. Dr Wertheim referred her to the Fremantle Hospital eye clinic for ongoing management under the supervision of Dr Cunneen. In addition he referred her to a rheumatologist, Dr Tran, on the basis that Sicca/Sjogren’s disease is thought to have an autoimmune basis.

   ·Dr Cunneen inserted punctal plugs, which only helped for a while. She has seen a number of other ophthalmologists. In the past few weeks she has begun the process of preparing autologous serum eye drops, which may help.

   ·Reduced secretions arising from Sjogren’s/Sicca syndrome have caused some additional problems with dry skin, reduced saliva and dry vagina (T2 12-13) (R1).

3. On the basis of this evidence and medical reports, AAT1 concluded that treatment was ongoing at the time of the Qualification Period and therefore, the Sicca syndrome could not be categorised as fully treated and stabilised.

4. The ARO determined – “there is insufficient medical evidence to assess this condition” (T100 347) (R1).

5. The Applicant contends:

   … that the condition should be regarded as fully treated and stabilised at the time of the claim, under the reasonable treatment as outlined in clauses 6(5) and 6(6) of the 2011 Determination. Being forward-looking, with respect to a condition, as to whether ‘any further reasonable treatment as it is not reasonably accessible to the person, and it is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’ (emphasis added).

   5.126Taking into consideration, ‘what it does mean is that the person’s impairment may have a significant functional impact in many work situations but depending on the person’s individual circumstances, coping mechanisms and reasonable adjustments, that person may still be able to do work’. As highlighted in most of the reports and JCA, ESat, and beyond assessments this will be problematic and significantly limited due to the number and nature of the Applicant’s combination of conditions ie ‘due to the impact of her overall health on her ability to function’. [T44, p 182] [T55, p 231] [T98, p 340] [T100, p 347]

   5.127This too is inclusive of this sicca/sjogren’s (sic) syndrome condition that does not exist ‘of itself’ and will never be that way at best, due its defined degenerative nature. Let alone, when it is being under assessed medically and over assed functionally, as continually is occurring throughout a multitude of processes the Applicant is within, and that does not exclude these to-date either.

   5.128The medical evidence is indicative that the Applicant ‘experiences discomfort arising from her bilateral dry eyes and suffers impairment to her vision following the application of necessary ointments’, and ‘suffers from a lot of photosensitivity’. The Applicant contends a rating can be assigned under Table 12 as there is evidence the Applicant has ‘moderate to severe discomfort when performing day to day activities involving the eyes, e.g. frequent drying of the eyes, and is unable to tolerate normal levels of light indoors or outdoors’ as required by the descriptors for a 10 point rating.

   5.129The Applicant also contends there is evidence the Applicant has ‘moderate difficulties due to lesions on skin which require creams or dressings and limit movement and comfort e.g. require additional time to perform tasks, and tasks need to be modified, that the person has to make’, and as such a rating of 10 points should be assigned under Table 14.

   5.130The Applicant contends the sicca/sjogren’s (sic) syndrome was fully treated and stabilised at the time of the claim, qualification period, by appropriately qualified medical practitioners and there is corroborating appropriate evidence of functional impairment arising out of the sjogren’s/sicca (sic) condition, and should be assigned an impairment rating of 10 points under Table 12 and Table 14 (A1 18).

6. The Tribunal finds on the basis of the medical evidence before it that this condition was not fully treated and stabilised during the Qualification Period.

   Fibromyalgia

7. The Applicant told AAT1 that:

   She was referred to the rheumatologist Dr Tran in April 2015 to see if there were any other issues arising from Sicca syndrome. He did tests and all seemed well at first. She saw him twice.

   She began to get widespread joint pains and, in January 2017, one of her GPs sent her back to him. He diagnosed fibromyalgia. Treatment has been with a number of medications. Dr Tran referred her to the STEPs pain program at FSH. She was seen there in April and is awaiting appointments for physiotherapy and psychology aspects of the program (T2 13) (R1).

8. The Applicant contends:

   … that this condition was fully diagnosed, at the time of claim. And that a considerable amount of its treatment management prior to this time had been undertaken, and that it could be concluded, that as at the qualification period, the treatment for the fibromyalgia condition was unlikely to result in significant functional improvement within 2 years. And the claimant was not in a position to submit all the required information for a claim in a timely fashion because of these extenuating circumstances, ‘and this includes having acquired this serious health condition’ (A1 25).

9. The Tribunal notes treatment for this outside of the Qualification Period. Therefore, the condition was not FDTS during the Qualification Period as the Applicant continued to receive treatment after the Qualification Period.

   Spine

10. The ARO found there was no medical specialists’ advice to indicate what treatments had been undertaken to assist the Applicant with her back pains.

11. This condition was not addressed by AAT1.

12. The Applicant contends:

    … as such that the spinal condition was fully treated and stabilised at the qualification period, by appropriately qualified medical practitioner’s, (sic) and there is corroborating appropriate evidence of functional impairment arising out of the spinal condition. The medical evidence indicates the condition causes mild functional impact on ‘bending to knee level and straightening up again without difficulty’ and attracts a rating of 5 points under Table 4 (A1 22).

13. The JCA report states there is no evidence of radiological or specialist reports within the last 2 years (T98 333) (R1).

14. The Tribunal finds this condition is not FDTS.

    Whether the Applicant has a continuing inability to work

15. The Tribunal finds that the Applicant has zero points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.

    DECISION

16. For the reasons given above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

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

Administrative Assistant Legal

Dated: 10 July 2018

Date of hearing:	25 June 2018
Advocate for the Applicant:	Rachael Cox
Representative for the Respondent:	Christopher Bishop
Solicitors for the Respondent:	Mills Oakley