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

Lyons and Secretary, Department of Social Services (Social services second review) [2018] AATA 119 (5 February 2018)
Division:GENERAL DIVISION
File Number: 2017/3176
Re:Jacki Lyons
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:5 February 2018
Place:Brisbane

The decision under review is set aside and substituted with a decision that Ms Lyons was qualified for Disability Support Pension during the qualification period.
............................[SGD]............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
REASONS FOR DECISION
Member D K Grigg
5 February 2018
INTRODUCTION

On 8 September 2016, Ms Lyons lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·Aesthesioneuroblastoma resection
·left eye removed
·loss of sense of smell permanent
·seizures
·sight problems – loss of depth, perception and blurry vision plus focus loss
[1] Exhibit 1, T Documents, T17, pages 108 – 139, Ms Lyons’ Claim for DSP dated 8 September 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Ms Lyons’ claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T 19, pages 145 – 146, Rejection of claim for DSP dated 21 October 2016.
CLAIM HISTORY
Ms Lyons sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[3] Exhibit 1, T Documents, T 22, pages 152 – 157, Decision of ARO and notes dated 29 November 2016.
Ms Lyons’ medical conditions were not “permanent”, as that term is defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more, and she did not meet the program of support requirements.[3]
Ms Lyons lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 10 January 2017.[4] The SSCSD rejected
[4] Exhibit 1, T Documents, T 23, pages 158 – 159, Letter from AAT to Centrelink regarding appeal dated 10 January 2017.
[5] Exhibit 1, T Documents, T2, pages 15-20, SSCSD’s Decision and Reasons for Decision dated 24 April 2017.
Ms Lyons’ claim and affirmed the ARO’s decision on 24 April 2017.[5]
Ms Lyons has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1–14, Application for Review of Decision dated 26 May 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms Lyons must have a physical, intellectual or psychiatric impairment;
(b)Ms Lyons’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Ms Lyons has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Lyons meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 8 September 2016), unless Ms Lyons becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, to qualify for DSP, Ms Lyons must have met the Section 94 Requirements between 8 September 2016 and 8 December 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Lyons’ impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[9]
DID MS LYONS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Ms Lyons’ medical conditions
[10] Determination, s 3.
Neuroblastoma
In June 2016, Dr James Bowman, ENT Consultant, reported that Ms Lyons has an extensive esthesioneuroblastoma which requires surgical management. Dr Bowman reported that Ms Lyons will most likely need an endoscopic/and a nasal approach with potentially associated open craniofacial resection via a by frontal craniotomy and then reconstruction of the skull base and that she would possibly lose her left eye if there was extensive involvement at the time of surgery.[11]
[11] Exhibit 1, T Documents, T5, pages 75 – 76, Report of Dr Bowman dated 3 June 2016.
Ms Lyons underwent surgery on or around 9 June 2016 and was discharged from hospital on 24 June 2016.[12]
[12] Exhibit 1, T Documents, T8, pages 82-83, Medical Certificate dated 17 June 2016; T9, page 84, discharge summary dated 24 June 2016.
Associate Professor Chris Perry, Chairman of the Head and Neck Clinic, reported that the histology following the surgery confirmed the lesion and that Ms Lyons would be treated with chemotherapy and radiotherapy.[13]
[13] Exhibit 1, T Documents, T10, page 92, Report of Associate Professor Chris Perry dated 28 June 2016.
In August 2016, Ms Lyons was referred to the Princess Alexandra Hospital physiotherapy outpatient cancer exercise program and was due to commence classes in September 2016 for a period of 12 weeks.[14]
[14] Exhibit 1, T Documents, T 25, page 190, Letter from Jennifer Tan, Physiotherapist, dated 29 August 2016.
Ms Lyons’ radiotherapy treatment was completed on 5 September 2016.[15]
[15] Exhibit 1, T Documents, T 21, page 150, Report of Dr Liu dated 26 October 2016.
Dr Howard Liu, Radiation Oncology Registrar, reported that Ms Lyons’ condition is likely to have a significant impact on her ability to function in that she was likely to suffer from fatigue, nausea and vomiting, have impaired cognitive functioning and difficulties with digestion or continents function but that she is likely to improve over time. Dr Liu noted that Ms Lyons was experiencing side-effects of treatment and will be requiring support for those functional aspects.[16]
[16] Exhibit 1, T Documents, T 21, pages 150 – 151, Report of Dr Liu dated 27 October 2016.
In October 2016, Dr Foote reported that since completing treatment:[17]
(a)Ms Lyons was struggling with ongoing fatigue, nausea and anorexia;
(b)Ms Lyons found that her symptoms improve when taking dexamethasone but that she had not taken this for some time;
(c)Ms Lyons is troubled by facial pain and significant nasal discharge and crusting;
(d)the radiation effects seem to have largely healed;
(e)her nasal cavities largely obscured a crust and there is a soft tissue abnormality in the back of the nasopharynx which will require observation;
(f)Ms Lyons needs to continue current pain medications and Keppra and start taking dexamethasone to help her over the tough period which is likely related to some cerebral irritation from her treatment; and
(g)Ms Lyons was due to see the ENT surgeon in a few weeks’ time.
[17] Exhibit 1, T Documents, T 25, page 196, Report of Associate Professor Foote dated 25 October 2016.
In October 2016, Dr Kimberly Bradshaw, from the ENT department in the Princess Alexandra Hospital, reported that:[18]
[18] Exhibit 1, T Documents, T 25, pages 199 – 200, Report of Dr Bradshaw dated 26 October 2016.
(a)Ms Lyons’ condition was likely to have a significant impact on her ability to function, for example:
(i)she will require support with daily living;
(ii)movement and dexterity would be impacted;
(iii)she will have fatigue;
(iv)psychological functioning will be impacted;
(b)Ms Lyons’ condition is likely to persist for over 2 years; and
(c)will improve over time.
In November 2016, Dr Bowman reported that Ms Lyons was having issues with ongoing nausea and vomiting and was struggling in her activities of daily life and would need significant ongoing support with both social work as well as in the community.[19]
[19] Exhibit 1, T Documents, T 25, pages 203 – 204, Report of Dr Bowman dated 4 November 2016.
In January 2017, Dr Bowman reported that the conditions currently impacting on Ms Lyons relate to left-sided blindness, a complete anosmia and difficulty with concentration and memory which is secondary to her tumour management. Dr Bowman says that Ms Lyons will require ongoing assessment in the clinic post-treatment and that the described deficits are permanent and unlikely to be improved over time.[20]
[20] Exhibit 1, T Documents, T 25, page 208, Report of Dr Bowman dated 13 January 2017.
In February 2017, Dr Marcus Schuemann, General Practitioner, reported that Ms Lyons’ left skull base aesthesioneuroblastoma condition was fully diagnosed, treated and stabilised.[21]
[21] Exhibit 1, T Documents, T 25, pages 214-215, Report of Dr Schuemann dated 1 February 2017.
In April 2017, Dr Stuart Balley, for Dr Bowman, reported that Dr Bowman agrees that Ms Lyons has entered into a period of surveillance and that he has no expectation of providing any further treatment in the foreseeable future. Dr Balley reported:[22]
I am not sure why this is causing her to be exempt, but if you could pursue this with Centrelink that would be greatly appreciated.
[22] Exhibit 1, T Documents, T 25, page 237, Report of Dr Balley dated 7 April 2017.
Vision
As a result of the neuroblastoma surgery, Ms Lyons lost her left eye and is dependent on her right eye for vision. In January 2017, Colin Pfeiffer, Optometrist, reported that:[23]
(a)Ms Lyons no longer has binocular vision or depth perception; and
(b)any work where good judgement of depth and distance is required would be very difficult and potentially dangerous for Ms Lyons to perform.
[23] Exhibit 1, T Documents, T 24, page 160, Report of Colin Pfeiffer dated 20 January 2017.
In November 2016, Ms Louise Cooney, Dietician, Radiation Oncology at PA Hospital, reported that Ms Lyons requires a walking stick for mobilisation. Ms Cooney reported that:[24]
[24] Exhibit 1, T Documents, T 25, pages 201 – 202, Report of Ms Cooney dated 1 November 2016.
(a)Ms Lyons was experiencing the following side-effects:
(i)Anosmia (no sense of smell);
(ii)Dysguesia (lack of taste)
(iii)Trismus (reduced mouth opening – only able to consume a liquid diet)
(iv)impaired mobility
(v)left sided blindness;
(b)many of Ms Lyons side-effects will be permanent;
(c)Ms Lyons will be unable to smell gas, unable to taste food, unable to eat solid food and unable to prepare food due to her need to always use a walking stick while standing.
Depression/cognition
While in hospital for her surgery, Ms Lyons reported that she had long term depression and that her memory and concentration were not working as well as previously.[25]
[25] Exhibit 1, T Documents, T12, page 96, Outpatient occupational therapy report dated 26 July 2016.
In October 2016, Dr Foote reported that Ms Lyons had fatigue, headaches and neurocognitive issues.[26]
[26] Exhibit 1, T Documents, T 20, page 148, Medical certificate of Dr Foote dated 25 October 2016.
In February 2017, Dr Carolyn Perry, Mental Health Social Worker, reported that Ms Lyons was referred to her in January 2017 for treatment of chronic anxiety and depression.[27]
[27] Exhibit 1, T Documents, T 25, pages 209 – 211, Report of Dr Perry dated 20 February 2017.
In March 2017, Dr Joyce Arnold, Psychiatrist, reported that Ms Lyons had been her patient since February 2013, although she had only seen her once in 2013 and once in 2014. Dr Arnold reported that Ms Lyons’ original diagnosis was mood disorder major depression, chronic and recurrent, and that following the treatment of the brain tumour she has:[28]
(a)epilepsy secondary to her condition which often causes depression;
(b)a recurrence of her depression probably secondary to her medical condition;
(c)developed a permanent brain disorder, frontal lobe syndrome, which affects memory, concentration, decision-making and problem-solving abilities and her personality function.
[28] Exhibit 1, T Documents, T 25, pages 234 – 235, Report of Dr Arnold dated 21 March 2017.
In Dr Arnold’s opinion, as at March 2017, Ms Lyons was not stable as she had only just restarted antidepressant medication and psychotherapy and she will improve over time given treatment. Dr Arnold also noted that it was difficult to assess her neuro-vegetative symptoms as they are similar to the frontal lobe disorder and that Ms Lyons fluctuates between 10 and 20 points under Table 5, on average 15, that is, moderate functional loss.[29]
[29] Exhibit 1, T Documents, T 25, pages 234 – 235, Report of Dr Arnold dated 21 March 2017.
Seizure
In August 2016, Ms Lyons presented at hospital having suffered her first seizure. An MRI and CT scan of her brain was undertaken and showed:[30]
Dural enhancement within the anterior cranial fossa less conspicuous in keeping with postsurgical change. No evidence of residual or recurrent tumour identified. No intracranial mass.
[30] Exhibit 1, T Documents, T 14, page 100, MRI report dated 31 August 2016.
On 30 August 2016, Ms Lyons was admitted to hospital following two seizures. The PA Hospital diagnosed Ms Lyons as having seizures following radiotherapy in the context of her resected neuroblastoma.[31]
[31] Exhibit 1, T Documents, T 15, page 101, discharge summary dated 1 September 2016.
In September 2016, Dr Foote, Radiation Oncologist, reported that he was not surprised that she had a seizure given the extent of her tumour and the treatments that she had undertaken. Dr Foote reported that Ms Lyons was now appropriately medicated on Keppra with no ongoing seizure activity and was to have ongoing appointments at PA Hospital.[32]
[32] Exhibit 1, T Documents, T 25, page 193, Report of Dr Foote dated 2 September 2016.
Psoriasis/Psoriatic Arthritis
In August 2015, Dr Lisa Cummins, Rheumatologist, reported that Ms Lyons has psoriatic arthritis and in the past has had psoriasis over her hands, elbows and knees. Dr Cummins prescribed methotrexate and folic acid and requested x-ray and blood tests for review in 6 to 8 weeks’ time.[33]
[33] Exhibit 1, T Documents, T 25, page 169, Report of Dr Cummins dated 22 August 2015.
In December 2016, Dr Mohammed Salah, Medical Registrar, reported that Ms Lyons had attended the rheumatology clinic and on examination showed no psoriatic rashes on her limbs or body and that Ms Lyons said that, when she was on the dexamethasone, she noticed complete resolution of her psoriatic rashes.[34]
[34] Exhibit 1, T Documents, T 25, pages 206 – 207, Report of Dr Salah dated 26 November 2016.
In February 2017, Dr Schuemann reported that this condition resulted in intermittent joint swelling and flareups and that Ms Lyons needs to avoid sunlight and take precautions with long sleeve clothing. Ms Lyons is currently taking methotrexate for the condition.[35]
[35] Exhibit 1, T Documents, T 25, pages 214-215, Report of Dr Schuemann dated 1 February 2017.
Conclusion on Impairments
The Secretary accepts that Ms Lyons suffers from an impairment for the purposes of section 94(1)(a) at the Qualification Period.[36]
[36] Exhibit 2, Secretary's Statement of issues, Facts and Contentions dated 29 November 2017, para 33.
In light of the above medical evidence, the Tribunal concludes that, at the Qualification Period, Ms Lyons suffered from a Nasal Impairment, Visual Impairment Frontal Lobe Impairment, Chronic Pain and Fatigue Impairment, Psoriasis and Psoriatic Arthritis Impairment and Depression Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
The Tribunal acknowledges that Ms Lyons had seizures following her tumour but notes that these are now treated and that, during the Qualification Period, she had no further seizure activity. As a result, this condition is apparently having no impact on Ms Lyons’ ability to function and therefore will not be considered for the purposes of this application.
DO MS LYONS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[37] They are function based[38] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[39]
[37] Determination, s 4(2) and 5(2)(a).
[38] Determination, s 5(2)(b) and (c).
[39] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[40]
(a)Ms Lyons’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[40] Determination, see s 6(3).
Ms Lyons’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[41]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[41] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated,[42] the following must be considered:[43]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[42] For the purposes of ss 6(4)(a) and (b) of the Determination.
[43] Determination, see s 6(5).
A condition is fully stabilised[44] if:[45]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[46] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[44] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[45] Determination, see s 6(6).
[46] For reasonable treatment see s 6(7) of the Determination.

Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, I must first consider Ms Lyons’ medical history, in relation to the condition causing the Impairments.[47]
ARE MS LYONS’ IMPAIRMENTS PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
[47] Determination, see s 6(2).
Nasal Impairment
The neuroblastoma surgery has resulted in Ms Lyons suffering from Anosmia (no sense of smell) and Dysguesia (no sense of taste). The medical evidence confirms that these conditions are permanent and there is no treatment available.
However, as noted by the Secretary, there are no Tables in the Determination which provide for any impairment rating for these conditions. As a result, no Impairment Rating can be assigned.
Visual Impairment
There is no dispute that Ms Lyons’ Visual Impairment is permanent and an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Ms Lyons’ Impairment needs to be assessed against the descriptors[48] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[49]
[48] Determination, see ss 3 and 5(3).
[49] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must 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.[50]
[50] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[51]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[51] Determination, see s 7.
I must not take into account the following information in applying the Tables:[52]
(a)symptoms reported by Ms Lyons in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Lyons’ local community.
[52] Determination, see s 8.
Which Tables are appropriate are determined by:[53]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[53] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[54]
[54] Determination, see s 10(3).
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.[55]
[55] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[56]
[56] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[57]
[57] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The relevant table for the purposes of assigning an impairment rating to Ms Lyons’ Visual Impairment is Table 12.
The introduction to Table 12 provides:
·Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·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:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
oresults of vision assessments (e.g. from an optometrist).
·Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
·Where severe or extreme loss of visual function is evident or suspected, it is to be recommended that assessment by a qualified ophthalmologist occur to determine if the person meets the criteria for permanent blindness.
To obtain a 10-point rating, the evidence must show that Ms Lyons:
(a)has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and
(c)has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and
(d)has at least one of the following:
(i)some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;
(ii)moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(iii)only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and
(e)is able to function independently in familiar environments (that is, without regular assistance from other people); and
(f)is able to travel independently using public transport when using any assistive devices that they have and usually use.
To obtain a 20-point rating, the evidence must show that Ms Lyons:
(a)has severe difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn; and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for many tasks; and
(c)has severe difficulty performing many day to day activities involving vision (e.g. difficulty distinguishing between different types of food in tins or packets, seeing the level of fluid in a cup or reading aisle signs in the supermarket even when standing close to these); and
(d)either:
(i)is unable to see routine workplace, educational or training information (e.g. signs, safety information, or manuals) even when using any assistive devices or technology that they have; or
(ii)needs assistance to use public or other means of transport to travel to work, educational or community facilities even when using any assistive devices that they have (e.g. a guide dog or cane); and
(e)is unable to move around independently in unfamiliar environments.
Ms Jodie Nixon, Occupational Therapist, reported in July 2016 that Ms Lyons:[58]
(a)uses a walking stick to compensate for reduced vision;
(b)has had no falls but has bumped her head a few times;
(c)is independent of self-care;
(d)is not confident with public transport;
(e)is not able to drive; and
(f)finds it hard to walk the dogs.
[58] Exhibit 1, T Documents, T 12, page 96, Report of Ms Nixon dated 26 July 2016.
In February 2017, Dr Schuemann reported that Ms Lyons has moderate difficulties seeing things at a distance or close up when wearing her glasses, is unable to read for long periods, is unable to walk outside in the dark, has poor perception, poor coordination, requires the use of a walking cane, has moderate discomfort when performing day to day activities as she is unable to tolerate normal levels of light, is unable to drive a motor vehicle and is dependent on others for transport.[59] Ms Lyons informed the Tribunal that she lives independently and that her Vision Impairment is not as severe as some of her other conditions.
[59] Exhibit 1, T Documents, T 25, pages 214-215, Report of Dr Schuemann dated 1 February 2017.
There is no evidence that Ms Lyons meets the criteria for a 20-point rating. The Tribunal agrees with the Secretary’s submission that Ms Lyons’ level of visual impairment is moderate and that an appropriate Impairment Rating is 10 points.[60]
[60] Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 29 November 2017, para 55.
Depression/Frontal Lobe Impairment
The Secretary submits that the extent of Ms Lyons brain function impairment was not known during the Qualification Period and that there is no medical report which confirms a diagnosis of frontal lobe syndrome.
There is certainly medical evidence that, following surgery, Ms Lyons developed cognitive impairments and frontal lobe conditions. For example, the MRI scan taken on 31 August 2016 indicates “paramedian bi-frontal gliosis”[61] and Dr Arnold indicated in her report that a diagnosis of frontal lobe syndrome had been made following Ms Lyons’ bifrontal craniotomy surgery. However, the medical evidence also indicates that there will be improvement over time and Dr Arnold reported that as at March 2017, which is after the Qualification Period, Ms Lyons’ conditions were not stable because she had only just restarted antidepressant medication and psychotherapy. Therefore, even if it is accepted that Ms Lyons has been fully diagnosed with frontal lobe impairment, it is clear from the medical evidence available that this impairment was not fully treated and fully stabilised as required by the Act during the Qualification Period. At the hearing, Ms Lyons informed the Tribunal that there is no treatment for frontal lobe impairment. However, the meaning of fully treated in the Determination is concerned with improvements in functional ability resulting from the Impairment, not a cure. Ms Lyons told the Tribunal she had been to the Brain Injury Rehabilitation Unit, subsequent to the Qualification Period,[62] and they had provided her with techniques to use, such as writing things down, in order to assist her memory issues but they have no further treatment they can provide. There is no report before the Tribunal from the Brain Injury Rehabilitation Unit. However, Ms Lyons’ evidence indicates that she was not fully treated during the Qualification Period. The Tribunal also notes that Dr Arnold reported that:
(a)Ms Lyons was not stable as she had only just restarted antidepressant medication and psychotherapy;
(b)that over time she will improve given treatment; and
(c)it was difficult to assess her neuro-vegetative symptoms as they are similar to the frontal lobe disorder.
[61] Exhibit 1, T Documents, T14, page 100, MRI Report dated 31 August 2016.
[62] Exhibit 1, T Documents, T 25, page 208, Report of Dr Bowman dated 13 January 2017.
This evidence means it is impossible for the Tribunal to find that Ms Lyons’ frontal lobe syndrome was permanent for the purposes of the Act and no Impairment Rating can be assigned. This report of Dr Arnold also evidences that Ms Lyons’ depression, although fully diagnosed, was also not fully treated and not fully stabilised during the Qualification Period. Therefore, no Impairment Rating can be assigned in relation to Ms Lyons’ depression condition.
The Tribunal notes that the Secretary informed the Tribunal that Ms Lyons has made a subsequent claim for DSP which has now been granted.
Chronic Pain and Fatigue Impairment
There is no doubt on the medical evidence that Ms Lyons was suffering from fatigue, nausea and other associated post-surgical/post-treatment conditions. The Tribunal agrees with the Secretary’s submission that these conditions are symptoms of Ms Lyons’ recovery. The Secretary submits that there is no discrete diagnosis of chronic pain and chronic fatigue by a Pain Specialist or Rheumatologist. However, the medical evidence indicates Ms Lyons is likely to have ongoing fatigue for more than 2 years. Dr Marzan provided a report in October 2017 that confirms that, during the Qualification Period, Ms Lyons had severe fatigue and chronic pain.[63] The Tribunal notes that decision of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (“Harris”) at [16-17]:[64]
“The finding that the chronic pain had not been diagnosed, treated or stabilised is puzzling. Pain had been diagnosed and treated at the time of the claim in 2004 and it had persisted and was treated for a two year period thereafter. … there was no suggestion in any of the material that the condition was temporary. Referral to a pain clinic was not suggested by any of the medical practitioners and that suggestion does not point to any particular diagnosis or treatment which was required. It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment…”
[63] Exhibit 4, Report of Dr Marzan dated 5 October 2017.
[64] The Department’s appeal to the Full Federal Court was unsuccessful: Secretary, Department of Employment and Workplace Relations v Harris [2007] FCACF 130.
As in Harris, there has been a diagnosis of fatigue and pain made by Ms Lyons’ treating medical specialists. The medical evidence is that it will persist for more than 2 years. Referral to a pain clinic or other fatigue management specialist was not suggested by any of the medical practitioners.
There is also no evidence, in relation to Ms Lyons’ fatigue condition, that there is some form of reasonable treatment that Ms Lyons could have been engaging in. In these circumstances, the Tribunal considers it fair and reasonable, particularly given the number of medical specialists and doctors that were overseeing Ms Lyons’ recovery, that all that could be done was being done.
In the circumstances, the Tribunal finds that an Impairment Rating can be assigned in relation to Ms Lyons’ Fatigue and Pain Impairments.
Relevant Impairment Table and Impairment Rating
The relevant table for the purposes of assigning an Impairment Rating to Ms Lyons’ Fatigue is Table 1. There is no table specifically for chronic pain.
The introduction to Table 1 provides:
·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:
oa report from the person’s treating doctor;
oa 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);
oa 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);
oresults of exercise, cardiac stress or treadmill testing.
To obtain a 20-point rating, the evidence must show that:
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.
Dr Bowman reported in November 2016 and January 2017 that Ms Lyons had “significant fatigue” which has not allowed her to carry out any employment and “needs significant ongoing support” and is “struggling in her activities of daily life”.[65]
[65] Exhibit 1, T Documents, T 25, pages 203 – 204, Report of Dr Bowman dated 4 November 2016; Exhibit 1, T Documents, T 25, page 208, Report of Dr Bowman dated 13 January 2017.
Dr Carolyn Perry reported in February 2017 that Ms Lyons in unable to work due to her high level of fatigue.[66]
[66] Exhibit 1, T Documents, T 25, pages 209 – 211, Report of Dr Perry dated 20 February 2017.
In February 2017, Dr Marcus Schuemann, General Practitioner, reported that Ms Lyons:[67]
(a)had headaches and chronic pain in the forehead;
(b)frequent symptoms of fatigue, chest tightness on performing light physical duties;
(c)was unable to walk far outside the home; and
(d)has difficulties performing day to day household activities such as making her bed, cleaning, sweeping or mopping.
[67] Exhibit 1, T Documents, T 25, page 213, Report of Dr Schuemann dated 1 February 2017.
Dr Marzan reported in October 2017 that, during the Qualification Period, Ms Lyons suffered from severe fatigue and was incapable of functioning even with the normal activities of daily living and was unable to perform any sort of employment or program of support.[68]
[68] Exhibit 4, Report of Dr Marzan dated 5 October 2017.
In the circumstances, the Tribunal finds that an appropriate Impairment Rating under Table 1 is 20 points.
Psoriasis and Psoriatic Arthritis Impairment
The medical evidence supports a finding that Ms Lyons’ Psoriasis Impairment has been fully diagnosed, fully treated and fully stabilised and therefore an impairment rating can be assigned. This is accepted by the Secretary.[69]
[69] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 29 November 2017, paragraph 71.

Table 14, which deals with functional impairments relating to the skin, is the appropriate table for the Psoriasis Impairment.
The introduction to Table 14 provides that:
·Table 14 is to be used where the person has a permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.
·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:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. dermatologist or burns specialist) confirming diagnosis of dermatological conditions or burns;
oassessments or reports from practitioners specialising in the treatment and management of these conditions such as dermatologists, burn specialists, clinical nurse consultants or nurse practitioners. In using Table 14 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
To assign an Impairment Rating of 5 points, the evidence would need to show that there is a mild functional impact on activities involving functions of the skin.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities requiring healthy, undamaged skin.
(1)Regarding the minor adaptations to some daily activities that the person has to make, at least one of the following applies:
(a)the person has minor difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia) and may need to wear protective gloves for some tasks, apply protective cream to the hands, or limit repetitive tasks involving use of the hands;
(b)the person has minor difficulties performing activities involving use of other parts of the body due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. mild allodynia);
(c)the person has minor difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications or past history of skin cancers) and needs to take higher than normal precautions to limit exposure to sunlight.
To assign an Impairment Rating of 10 points, the evidence would need to show that there is a moderate functional impact on activities involving functions of the skin.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities requiring healthy, undamaged skin.
(1)Regarding the adaptations to several daily activities that the person has to make, at least one of the following applies:
(a)the person has moderate difficulties performing activities involving use of their hands due to minor skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. moderate allodynia) and needs to wear protective gloves for most tasks, avoid contact with all detergents and soaps, or avoid repetitive tasks involving use of the hands;
(b)the person has moderate difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(c)the person has moderate difficulties performing daily activities due to lesions on skin which require creams or dressings and limit movement and comfort (e.g. may require additional time to perform some tasks, or some tasks may need to be modified);
(d)the person has moderate difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and needs to take higher than normal precautions to avoid exposure to sunlight (e.g. must wear sunscreen at all times, wear hat and other protective clothing at all times outside and should limit time spent outside in sunlight).
In Dr Schuemann’s opinion, this impairment is having a moderate functional impact on activities and a 10-point impairment rating is appropriate. Dr Schuemann reported that Ms Lyons has to avoid contact detergents and soaps and repetitive tasks involving the hands and that, due to the pain, she has difficulty performing some tasks and requires extra time to undertake them.
Based on the corroborating evidence available, the Tribunal finds that it is difficult to assess whether an appropriate impairment rating is 5 or 10 points. In those circumstances, 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.[70] Therefore, the Tribunal finds that an appropriate Impairment Rating for Ms Lyons’ Psoriasis Impairment is 5 points.
[70] Determination, see s 11(1).
Table 2, which deals with functional impairments relating to the upper limbs, is the appropriate table for the Psoriatic Arthritis Impairment.
The introduction to Table 2 provides that:
·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:
oa report from the person’s treating doctor;
oa 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);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
To assign an Impairment Rating of 5 points under Table 2, the evidence would need to show that there is a mild functional impact on activities involving the upper limbs.
The Descriptors for an Impairment Rating of 5 points are:
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.
To assign an Impairment Rating of 10 points under Table 2, the evidence would need to show that there is a moderate functional impact on activities involving the upper limbs.
The Descriptors for an Impairment Rating of 10 points are:
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.
Dr Schuemann reported that Ms Lyons is unable to lift heavy objects of more than 2 kg or carry heavy shopping bags, requires the use of 2 hands together picking up light objects, has difficulty unscrewing lids on bottles or jars and has difficulty using a keyboard. These impacts fall within a 5-point and 10-point rating. 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.[71] There is no corroborating evidence that Ms Lyons has difficulty picking up a 1 litre carton full of liquid, holding and using a pen or pencil, doing up buttons or tying shoelaces. Therefore, the appropriate Impairment Rating for Ms Lyons’ Psoriatic Arthritis Impairment is 5 points.
[71] Determination, see s 11(1).
WERE MS LYONS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Ms Lyons’ permanent Impairments attracted 40 points under the impairment Tables and therefore satisfies section 94(1)(b) of the Act.
DID MS LYONS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
Section 94(2) of the Act sets out when a person has a continuing inability to work because of an impairment. It provides:
(2) A 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.
Note: For work see subsection (5).
Therefore, to satisfy section 94(1)(c), Ms Lyons must have:
(a)completed a program of support and have an impairment which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years; or
(b)a “severe impairment” which is sufficient to prevent her from undertaking a training activity during the next 2 years or a training activity is unlikely, because of the impairment, to enable her to do any work independently of a program of support within the next 2 years.
The Tribunal has found that one of Ms Lyons’ Impairments has attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)), therefore, she is not under an obligation to have completed a POS.
In the case of a severe impairment, a person has a continuing inability to work pursuant to section 94(2) if:
(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.
The term “work” is defined in subsection 94(5) of the Act as work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person's locally accessible labour market.
The medical evidence in paragraphs 76 and 79 above confirms that Ms Lyons’ Fatigue Impairment is of itself sufficient to prevent her from:
(a)doing any work independently of a program of support within the next 2 years; and
(b)undertaking a training activity during the next 2 years.
In the circumstances, the Tribunal finds that Ms Lyons had a continuing inability to work and satisfies section 94(1)(c) of the Act.
DECISION
Ms Lyons’ claim succeeds because she did qualify for DSP during the Qualification Period under section 94(1)(c) of the Act.
The decision under review is set aside and substituted with a decision that Ms Lyons qualified for DSP during the Qualification Period.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

........................... [SGD].............................................
Associate
Dated: 5 February 2018

Date of hearing: 23 January 2018

Applicant: By phone

Advocate for the Respondent: Maleah Underhill

Solicitors for the Respondent: Department of Human Services

[2018] AATA 119

5 February 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Date of hearing:	23 January 2018
Applicant:	By phone
Advocate for the Respondent:	Maleah Underhill
Solicitors for the Respondent:	Department of Human Services