Mackenzie and Secretary, Department of Social Services (Social services second review)
[2019] AATA 553
•27 March 2019
Mackenzie and Secretary, Department of Social Services (Social services second review) [2019] AATA 553 (27 March 2019)
Division:GENERAL DIVISION
File Number(s): 2017/4055
Re:Kerry Anne Mackenzie
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Mr S. Webb, Member
Date:27 March 2019
Place:Canberra
The decision to cancel Ms Mackenzie’s disability support pension is set aside, and in substitution thereof the Tribunal decides that Ms Mackenzie was qualified for disability support pension on 20 January 2017.
The decision denying unlimited portability of her DSP as of 25 August 2016 is affirmed.
The matter is remitted to the Secretary to calculate the amount of Ms Mackenzie’s DSP that is payable.
........................................................................
Mr S. Webb, Member
SOCIAL SECURITY – suspension of disability support pension – portability rules – cancellation of DSP – eligibility criteria – meaning of ‘impairment’ - difference between impairments and medical conditions – rules governing the assessment of impairments – permanency of conditions – no requirement for periodic specialist review in respect of chronic conditions established by evidence – speculation about treatment options and likely improvement not appropriate - rating of impairments – meaning of ‘common or combined impairment’ – requirement for impairment ratings of 20 points or more – continuing inability to work - probative value of prospective assessment of improvement in capacity for work with interventions where interventions are codified without explanation or rationale – cancellation decision set aside – portability decision affirmed
Social Security Act 1991, ss 94, 1218AAA
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Negri v Secretary, Department of Social Services [2016] FCA 879
Re Johansson and Secretary, Department of Social Services [2014] AATA 956
Re O’Cass and Secretary, Department of Social Services [2016] AATA 876
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
Secretary, Department of Family and Community Services v Michael [2001] FCA 1811
Sesalim v Secretary, Department of Social Services [2018] FCA 1189Department of Social Services, Review of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension, May 2012.
REASONS FOR DECISION
Mr S. Webb, Member
27 March 2019
Some years ago, Kerry Anne Mackenzie was afflicted by painful medical conditions that affected her ability to work. After ceasing work, she claimed and was paid a disability support pension (DSP). This continued for several years during which the medical conditions did not abate or improve. She undertook a trip overseas with a friend. She sought indefinite portability in respect of DSP. This was refused. She spent more than 28 days outside Australia. Her DSP was suspended. Her eligibility for DSP was reassessed. In the result, her DSP was cancelled. Ms Mackenzie is not happy with this outcome. She has exercised her review rights, but the cancellation decision has been affirmed by successive decision makers including, most recently, by the first tier of this Tribunal. She has applied for further review by the Tribunal.
FACTS
Ms Mackenzie was raised on a country property. She was previously employed in the meat industry.
She has a history of medically proven symptoms, spanning more than 20 years. In order to properly comprehend her medical circumstances at the time her DSP was cancelled, it is helpful to set out much of this information, albeit rather lengthy.
In her oral evidence Ms Mackenzie explained that she experienced burning sensations in her extremities as a child – she told me that, even in winter, when her feet were ‘burning’ she would go outside and sit with them in a dam. She described hypersensitivity to light touch, itchiness, pulsating sensations and skin colour changes. There is no evidence that these symptoms were investigated, diagnosed or treated at the time.
In or about 1992, she experienced aches and pains, especially in her lower back, for which she sought treatment from a physiotherapist.
In 1997, Dr Gaffney, her treating general practitioner at the time in Dubbo, requested scans of her lumbar spine. The resulting report refers to “minimal scoliosis concave left” with no other abnormality reported.[1]
[1] T5.
Soon thereafter, Ms Mackenzie relocated to the Gold Coast. She explained that the cold made her symptoms worse, so she moved to a warmer climate.
Dr Belthikiotis, Ms Mackenzie’s treating general practitioner at the time on the Gold Coast, requested further scans of her lumbar spine. On 2 November 1998, Dr Clowes, a radiologist, reported –
Minimal changes are shown at L5/S1. Other levels are thought to be normal.[2]
[2] T6.
Ms Mackenzie’s lumbar spine symptoms persisted. She experienced symptoms in her neck.
On 22 October 2003, further scans were undertaken. These indicate misalignment in the neck, mid-back and lower back.[3]
[3] T7.
On 22 June 2004, Ms Mackenzie obtained employment at a plastic factory – Sunplas (Australia) Pty Ltd (Sunplas).
On 26 August 2004, a further CT scan of Ms Mackenzie’s lumbar spine was reported to show –
Moderate to severe lumbosacral disc degeneration. No evidence of neural impingement.[4]
[4] T9.
On that same day, Dr Belthikiotis certified that Ms Mackenzie was unfit for work from 26 August 2004 to 26 September 2004 as a result of “Neck, mid-back & low back pain”, about which the doctor reported –
Recurring neck, mid-back & low back. Fluctuating severity: moderate – severe. Inc with activity. Inc this yr.[5]
[5] T8.
On 30 August 2004, a CT scan of Ms Mackenzie’s cervical spine was reported to show –
Small broadbased posterior disc lesion at C6/7 to the left of mid-line, appears to efface the ventral thecal sac and may impinge upon the cord. This would be better assessed by means of MRI.[6]
[6] T10.
On 3 September 2004, Dr Belthikiotis provided a Centrelink Treating Doctor’s Report. He diagnosed “Degenerative spinal disease”[7] about which he reported –
History: Long history recurrent neck, mid & low back pain & stiffness. Recurrent episodes. Increased severity and frequency of severe pain. Extensive chiropractic treatment – minimal effect. Recent CT scans confirm.
Current symptoms: Episodes severe neck, id & low back pain. Fairly constant back stiffness. Assoc headache & nausea. Frequent flares – few days/week at severe levels.
Current treatment: Chiropractor. Mobilising. Nurofen plus.
Past treatment: As above.
Future treatment: Neurosurgical & rheumatological review.
[7] T11 folio 89.
Dr Belthikiotis reported that the impact of this condition on Ms Mackenzie’s ability to function was likely to persist for more than 24 months and this would remain unchanged within 2 years.[8]
[8] T11, folio 90.
On 15 September 2004, a Work Capacity/Participation Assessment Report was completed by a rehabilitation consultant.[9] At the time, Ms Mackenzie was working 3 days per week at Sunplas, undertaking three 8-hour shifts on alternate days. The Assessor noted –
Customer reported she is required to work alternate days (eg. Mon, Wed, Fri) due to her condition, and works from 11.00pm - 07.00am. Customer reported she has attempted to work five shifts per week, however was regularly taking days off (every second day) due to exacerbation of her pain.[10]
[9] T13.
[10] Ibid, folio 102.
The Assessor reported that Ms Mackenzie’s work capacity could increase from 15 to 29 hours to “30+ hrs per week” within 2 years with interventions, namely vocational retraining and appropriate job matching.[11]
[11] Ibid, folio106.
On 20 December 2004, Ms Mackenzie’s employment by Sunplas ended, “due to failing health”.[12]
[12] T14.
On 24 January 2005, Dr Belthikiotis completed a further Centrelink Treating Doctor’s Report.[13] He reported a confirmed diagnosis of “Degenerative Spinal disease”[14] and a presumptive diagnosis of “Fatigue”[15]. Future treatment for the spinal disease was reported to be “Neurological r/v @ GCH”[16]. No past, present or future treatment was reported in respect of the ‘fatigue’ condition.[17] The doctor certified that Ms Mackenzie was unfit for work/study from 24 January 2005 to 24 April 2005 “ongoing”[18].
[13] T15.
[14] Ibid, folio 130.
[15] Ibid, folio 132.
[16] Ibid, folio 131.
[17] Ibid, folio 133.
[18] Ibid, folio 135.
On 7 September 2005, Dr de Jager, a rheumatologist, reported –
[Ms Mackenzie] has generalised Fibromyalgia syndrome, mechanical lumbar spinal pain due to L5/S1 disc degeneration and states she has Chronic Fatigue Syndrome which would probably tie in as well. Likewise her irritable bowel syndrome is also probably part of this whole process.
…
She has had pain in the wrists, knuckles, shoulders, neck and back and this is affected by weather and stress and her sleep has been significantly disrupted. The tiredness has been there for about 18 months…
…
… Her general examination was normal. There were no pathological changes in any of her joints. Her spinal movements were full. Neurological examination was normal. She was tender over the lateral epicondyles, the mid point of her trapezii and spinous processes but surprisingly not really over the greater trochanters.
…
… it might be useful taking Amitriptyline for two reasons: The first is to try and regulate her sleep pattern again and secondly it may alter pain threshold. The most important aspect of treatment is the aerobic exercise programme. Few people do well with either chronic fatigue or fibromyalgia unless they are able to get fit again.[19]
[19] T16.
On 4 October 2005, Dr Belthkiotis issued a medical certificate listing Fibromyalgia Syndrome with Chronic Fatigue Syndrome, treatment for which was noted to be –
Gentle mobilization. Amitriptyline 10mg nocte. Await neurosurgeon review.[20]
[20] T17.
On 7 November 2005, Dr Gurr, a Health Services Australia Medical Advisor, reported –
A 35 year old woman with
- Fibromyalgia (and? Chronic fatigue syndrome) – the 2 diagnoses cannot be considered separately. She has mild to moderate symptoms – attends to most daily activities – exercises 3 times a week for at least 20 minutes (aerobic type activity). She uses minimal analgesia…
- Low back pain – she has nearly normal range of movement. Minimal analgesia.[21]
[21] T18, folio 154.
On 15 February 2006, Ms Mackenzie was reviewed in Dr Withers Neurosurgical Outpatient Clinic following MRI scans of her cervical and lumbosacral spine the previous day. Dr B Leamon, a neurosurgical resident, reported –
Neurological examination of her upper and lower limbs was normal with no focal deficit noted.
The results of her MRI showed widespread degenerative changes however there was no thecal sac, nerve root or spinal cord compression noted by our radiologist. Her scans were also seen by Dr Withers.
At this stage there is no lesion which would be amenable to any neurosurgical intervention…[22]
[22] T19.
On 22 December 2006, Dr Belthikiotis provided a further Centrelink Treating Doctor’s Report in which he confirmed a diagnosis of degenerative spinal disease, the functional impact of which he expected to persist for more than 24 months and to deteriorate within that time.[23] He reported –
History: Long history of recurrent, chronic neck; mid & low back pain. Many years; onset since working abattoirs. Increased and limiting life style/activities since 1997. Physio/chiropractor with nil effects. Neurosurgeon r/v – not for operation. Rheumatologist review. Nil real change for no. years.
Current symptoms: Severe episodes severe neck pain associated with headaches and vomiting. Can last weeks when occur. Some days of only moderate pain. Frequent episodes moderate – severe low to mid back pain, but tolerated these better.
…
Future/planned treatment: ? Pain management clinic.[24]
[23] T20, folio 159.
[24] Ibid, folios 158-159.
The doctor also confirmed a diagnosis of “Chronic fatigue/Fibromyalgia”, the functional impact of which he expected to persist for more than 24 months, although he was “uncertain” whether this would improve, remain unchanged, fluctuate or deteriorate. He reported –
History: Long history of chronic fatigue/lethargy and pains in pattern of fibromyalgia. Confirmed by rheumatologist 2005 – see letter.
Current symptoms: Persistent lethargy, poor exercise tolerance, feels weak. Frequent sleeping though pain. Disturbed night sleeping pattern. Easily loses temper. Moderate – severe daily symptoms.
Current treatment: Sleep hygiene pattern. Gentle stretching & mobilising.
Past treatment: Endep 25 nocte. Rheumatologist review.
Future treatment: As above.[25]
[25] Ibid, folios 160-161.
On 3 January 2007, a Job Capacity Assessment was undertaken. Ms Mackenzie’s work capacity was reported to be –
Future capacity for work within 2 years without intervention: 8-14 Hours per week
Future capacity for work within 2 years with intervention: 8-14 Hours per week.[26]
[26] T21, folio 166.
Ms Mackenzie was granted DSP.
On 24 February 2010, a CT scan was taken of Ms Mackenzie’s lumbosacral spine and coccyx. Dr Somaia, a radiologist, reported the following conclusion –
There is mainly spondylosis at L5/S1 with degeneration of the disc and gas formation and sclerosis under the endplate and left para-central disc bulge shown but the is no disc protrusion. The spinal canal is of normal size.[27]
[27] T22.
On 11 March 2010, Dr Drew, a general practitioner, referred Ms Mackenzie to Dr Ian Maxwell an expert opinion “regarding a long-standing lower back ache and some neurological symptoms – including paraesthesia in the left leg”.[28]
[28] T24.
On 6 December 2011, the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) came into effect.
On 13 July 2016, Ms Mackenzie contacted Centrelink. She provided information about an overseas trip she was planning to Canada, leaving Australia on 25 August 2016 and returning on 29 September 2016.[29] Consequently, Centrelink sent Ms Mackenzie a letter setting out information about payments and concession card entitlements when leaving Australia. The letter states that DSP would be payable until 22 September 2016.[30]
[29] T42, folio 236.
[30] T26.
On 27 July 2016, Dr Goyal, a general practitioner, overcame his initial doubts about providing a medical report to Centrelink,[31] and did so in reference to Ms Mackenzie’s fibromyalgia.
[31] See T28.
On 4 August 2016, a Centrelink officer recorded –
Cus has requested a medical assessment to determine if CUS is medically eligible to receive DSP under:
- Indefinite portability provisions per s1218AAA, or
- The Social Security Agreement between Australia and Canada.[32]
[32] T42, folio 239.
On 18 August 2016, a Job Capacity Assessment was undertaken face to face by an Assessor whose ‘professional discipline’ is recorded as “Physiotherapist” and “Rehabilitation Counsellor (RCAA/ASORC eligible).[33] The resulting report was submitted to Centrelink on 24 August 2016.
[33] “T32, folio 203.
The Assessor reported that Ms Mackenzie’s spinal condition, fibromyalgia condition and irritable bowel condition were fully diagnosed, treated and stabilised.[34] Impairments resulting from these conditions were assigned a rating of 10 points.[35] The Assessor reported that Ms Mackenzie had a ‘Baseline work capacity’ of 8 to 14 hours per week and ‘Capacity for work within 2 years with intervention’ of 15 to 22 hours per week. The ‘interventions’ are stated to be “Injury management (H57)” and “Disability management education/counselling (H59)”. The Assessor explained that –
With disability specific intervention that provides Ms Mackenzie with disability management counselling and support to gain and maintain suitable employment she is expected to be able to work for up to 22 hours per week within 2 years.[36]
[34] Ibid, folios 203-205.
[35] Ibid, folio 206.
[36] Ibid, folio 207.
The basis on which this assessment was made is not explained; nor is it self-evident from the Assessor’s report. Nevertheless, the Assessor reported that “Impairment/work capacity criteria for indefinite portability of DSP are not met”.[37]
[37] Ibid.
It is clear enough that this assessment was adopted and applied by Centrelink, although the present documents do not reveal any specific decision of this kind. It is not established, however, that Ms Mackenzie was informed of the assessment and any related decision that she was not entitled to unlimited portability of DSP before she left Australia.
Ms Mackenzie departed Australia on 25 August 2016 and returned on 28 September 2016.[38]
[38] T41.
On 22 September 2016, Centrelink notified Ms Mackenzie that her DSP was suspended as she was still overseas (outside the 28 day limit for DSP portability).[39]
[39] T33.
On 29 September 2016, Ms Mackenzie returned to Australia and contacted Centrelink about her DSP. It appears that the suspension remained in place while her eligibility for DSP was re-assessed.
On 20 January 2017, a Centrelink officer decided that Ms Mackenzie did not meet the eligibility requirements for DSP and, therefore, did not meet the eligibility requirements for indefinite portability. The officer expressly agreed with the Job Capacity Assessment Report.[40] This is the primary decision for the purposes of these proceedings.
[40] T42, folio 243.
On 23 January 2017, Centrelink notified Ms Mackenzie that she was not eligible for DSP.[41]
[41] T34.
On 7 February 2017, at Ms Mackenzie’s request, the decision was referred for review by an Authorised Review Officer (ARO).
On 21 February 2017, the ARO decided that the primary decision was correct. The Officer reported –
The main issues in this review are whether:
- You can receive Disability Support Pension for more than 28 days in the last 12 months while you are absent from Australia.[42]
[42] T36, folio 214.
The Officer stated as a fact that-
You completed a medical review on 24 August 2016 as you were planning to leave Australia for more than 28 days in the last 12 months.
The nature and result of the ‘medical review on 24 August 2016’ is not expressly stated. There is no evidence of a ‘medical review’ taking place on or about 24 August 2016 in the records placed before the Tribunal. I note that a Job Capacity Assessment Report was submitted to Centrelink on 24 August 2016. In all likelihood, the ‘medical review’ was based on this Job Capacity Assessment Report, which was prepared by an Assessor who was not a medical doctor.
On 21 February 2017, a CT scan of Ms Mackenzie’s cervical spine was taken. Dr Rouse, a radiologist, reported –
There are degenerative disc, facet and uncovertebral joint changes are [sic] present throughout with moderately severe degenerative disc changes at C6/7. There is also reversal of the normal cervical lordosis which can be seen with muscle spasm.
...
There is a left sided paracentral disc prolapse at C6/7 with resultant moderate central canal stenosis and probable compression of the cervical cord through this level. MRI correlation would be recommended.[43]
[43] ST1.
On 2 March 2017, Ms Mackenzie applied to the Social Security and Child Support Division of this Tribunal (AAT-SSCSD) for review.
On 21 April 2017, an MRI of Ms Mackenzie’s cervical spine was taken. This was reported to show –
…
… Straightening of the normal cervical lordosis may be due to muscle spasm.
…
C6/7: Loss of disc height with left paracentral focal disc protrusion and compression of the left hemi cord. There is some foraminal narrowing on the left but no root compression.
…
There is no abnormal intramedullary cord signal to suggest cord oedema, myelomalacia or syrinx formation.[44]
[44] ST2.
On 24 April 2017, an MRI scan was taken of Ms Mackenzie’s lumbar spine. This was reported to show –
…
At L5/S1, there is loss of disc height with disc desiccation and prominent endplate oedema. There is a broad-based disc bulge with a right para-foraminal focal disc protrusion without neural impingement. No facet joint arthropathy and no significant central canal stenosis.
There are no other disc lesions. Mild L4/5 facet joint arthropathy.[45]
[45] ST3.
On 2 May 2017, in an unsigned medical certificate, Dr Gay, Ms Mackenzie’s then treating general practitioner in Cowra, reported –
Chronic neck pain … She reports constant neck pain that varies in intensity. When the pain is very bad is [sic] stops her being able to get out of bed. When the pains [sic] not too bad she can do all normal activities with caution. She gets pain that confines her to bed about twice a month…
Chronic low back pain … She is not currently undergoing any treatment but may benefit from a chronic pain specialist review… She reports her current low back symptoms to be pain and reported weakness although this is not demonstable [sic] on examination. Her symptoms vary on a day to day basis. When the pain is bad it impacts her day to day function by making it difficult to hang clothes on the line, do the washing up at a sink and even stir when she’s cooking.
Fibromyalgia … Symptoms include chronic fatigue which is a daily problem and makes it difficult to get up daily. She also gets irritable bowel syndrome requiring 3-8 visits to the bathroom. Sometimes she reports being numb from the waist down after sitting on the toilet for a prolonged period. She gets stomach pain and burning and stabbing sensations in her feet and pins and needles in the feet.[46]
[46] ST4.
On 2 June 2017, the AAT-SSCSD decided to affirm the decision, cancelling Ms Mackenzie’s DSP.[47]
[47] T2.
Ms Mackenzie applied for further review.
In the course of the proceedings, Ms Mackenzie provided additional medical documents, including a number of medical certificates and care plans by Dr Gay and Dr Thomson (treating general practitioners); and reports by Dr Nham (for Professor Hawke, a consultant neurologist),[48] Jenny Duggan (clinical psychologist),[49] Dr Spencer (rheumatic disease specialist),[50] Dr Blackwood (consultant neurologist),[51] Dr Erdstein (respiratory and sleep physician),[52] Dr Urriola (for Dr Blackwood),[53] Dr Stone (respiratory and sleep physician),[54] Dr Latief (specialist rheumatologist),[55] Dr Chin Goh (consultant respiratory and sleep physician)[56] and Andrea Carter (physiotherapist).[57]
[48] ST9.
[49] ST10 and ST30.
[50] ST11.
[51] ST13.
[52] ST18
[53] ST19.
[54] ST22 and ST34.
[55] ST26.
[56] ST31.
[57] ST36.
It is appropriate to have regard to these materials insofar as they are relevant to and assist understanding of Ms Mackenzie’s medical status when her DSP was cancelled.
Considering these materials, it appears that the following conditions have been diagnosed and treatments recommended after the cancellation decision was made –
(a)pituitary macroadenoma – Professor Hawke, Dr Blackwood and Dr Urriola recommended repeat MRI but no other treatment;[58]
(b)minimal sleep apnoea – Dr Erdstein recommended Melatonin 2-4 mg daily;[59]
(c)anxiety and depression – Dr Thomson and Ms Duggan recommended ongoing psychological treatment;[60]
(d)possible hypersomnolence and sleep phase delay – Dr Stone recommended sleep phase adjustment;[61] and
(e)right lateral epicondylitis – Dr Thomson recommended analgesia, activity modification and bracing.[62]
[58] ST13 and ST19.
[59] ST18.
[60] ST12, ST21 and ST30.
[61] ST22 and ST34.
[62] ST25.
ISSUES
The first issue to be decided is whether Ms Mackenzie’s DSP should be cancelled. This requires consideration of the mobility and eligibility provisions for DSP under the Social Security Act 1991 (the Act).
In order to qualify for unlimited portability of DSP, which is the second issue to be determined, the provisions of s 1218AAA of the Act must be satisfied –
1218AAA Unlimited portability period for disability support pension—severely impaired disability support pensioner
(1) The Secretary may make a written determination that a particular person’s maximum portability period for disability support pension is an unlimited period, if all of the following circumstances (the qualifying circumstances) exist:
(a) the person is receiving disability support pension;
(b) the Secretary is satisfied that the person’s impairment is a severe impairment (within the meaning of subsection 94(3B));
(c) the Secretary is satisfied that the person will have that severe impairment for at least the next 5 years;
(d) the Secretary is satisfied that, if the person were in Australia, the severe impairment would prevent the person from performing any work independently of a program of support (within the meaning of subsection 94(4)) within the next 5 years.
As can be seen, it is necessary to determine if Ms Mackenzie had a ‘severe impairment’ at the time she departed Australia on 25 August 2016, and when the cancellation decision was made. If she did, the time limit on payment of her DSP while she was overseas that gave rise to suspension (and cancellation) of her DSP would not apply.
Under the eligibility provisions set out in s 94 of the Act, it is necessary to determine if Ms Mackenzie qualified for DSP at the time the cancellation decision was made, on 20 January 2017. In order to meet the qualification requirements, it must be established that –
(a)Ms Mackenzie had a physical, intellectual or psychiatric impairment;
(b)the impairment is of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination); and
(c)the impairment causes her to have a continuing inability to work.
It is convenient to deal with these matters first.
IMPAIRMENT
The first qualification requirement for DSP under s 94(1)(a) of the Act relates to the existence of ‘physical, intellectual or psychiatric impairment’ at the relevant time.
In making submissions about the existence of impairment in this case, the Secretary referred to medical conditions. It is not the presence of medical conditions that must be assessed when applying the test set out in s 94(1)(a) but the existence at the relevant time of ‘a physical, mental or psychiatric impairment’. Well it may be that a medical condition might cause an impairment of one of these kinds, but the distinction between a medical condition and impairment is important – it is impairment that underlies the legislative mechanisms by which qualification for DSP is to be decided. It is only impairment that is to be assessed. And the assessment requires specificity, in terms of the particular function that is impaired. Specificity of this kind may not be apparent in the description of a medical condition. It is not the presence of the medical condition that is important, but the nature of impairment or impairments that result which must be assessed.
The word ‘impairment’ is not given any special meaning in the Act. It is, however, given meaning in s 3 of the Impairment Determination which is to be applied for the purposes of the second test under s 94(1)(b) of the Act –
Impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
This definition, being set out in an Instrument that is subservient to the Act, cannot limit or constrain proper construction of the Act. Having regard to the text of s 94(1)(a), it is quite clear that ‘impairment’ in that context relates to physical, intellectual or psychiatric functions.
The Oxford English Dictionary provides the following meaning for ‘impairment’ –
The action of impairing, or fact of being impaired; deterioration; injurious lessening or weakening.
The words ‘impair’ and ‘impaired’ are given the following meanings –
Impair
1. To make worse, less valuable, or weaker; to lessen injuriously; to damage, injure.
2. To grow or become worse, less valuable, weaker, or less; to suffer injury or loss; to deteriorate, fall off, or decay.
Impaired
1. Rendered worse; injured in amount, quality, or value; deteriorated, weakened, damaged.
On this basis, the word ‘impairment’ can be taken to mean the loss of strength, value or function of a body part, organ or system.
This is consistent with and serves the purposes of the legislation. Those purposes include assessing the eligibility of a claim for DSP where the claimant has an impairment that affects their ability to work. The relationship between impairment, in the ordinary sense, and ‘loss of functional capacity affecting the person’s ability to work’ arises under the Impairment Determination for the purposes of s 94(1)(b). The extent to which ‘impairment’ of that kind causes inability to work arises under s 94(1)(c). For the purposes of s 94(1)(a), a physical, intellectual or psychiatric impairment may be found to exist on medical grounds, the question whether it affects the person’s ability to work is to be dealt with under s 94(1)(b).
In Ms Mackenzie’s case, the present materials establish on the balance of probabilities that she had the following physical and mental impairments as of 25 August 2016 and 20 January 2017 –
(a)neck impairment due to a degenerative cervical spine condition, fibromyalgia and pain;
(b)lower back impairment due to a degenerative lumbar spine condition, fibromyalgia and pain;
(c)upper limb impairment due to fibromyalgia, pain and paraesthesia;
(d)lower limb impairment due to fibromyalgia, pain and paraesthesia;
(e)gastrological impairment due to irritable bowel syndrome;
(f)exertion and stamina impairment due to fibromyalgia, altered sleep hygiene, headaches and pain;
(g)cognitive impairment involving reduced concentration and memory due to fibromyalgia, altered sleep hygiene, headaches and pain.
Many of the medical records and reports precede the date on which DSP was cancelled, some by many years. Nevertheless, the weight of the medical evidence establishes that Ms Mackenzie’s medical conditions and resulting impairments have been ongoing for more than 15 years without improvement.
It follows that the requirements of s 94(1)(a) of the Act are met.
I note that, as of the cancellation decision date, psychiatric impairment relating to anxiety and depression is not established by the present materials, which indicate diagnosis and treatment of these conditions in 2017, some months after the date I must consider.
Furthermore, Ms Mackenzie gave evidence about other health conditions, including a Baker’s cyst in her left knee that was diagnosed in 2018, pituitary adenoma and the onset of menopause. The medical evidence does not establish that these conditions caused impairments at the time I must consider.
Furthermore, the present evidence does not establish that other medical conditions described in paragraph 57 (above) caused impairment when Ms Mackenzie’s DSP was cancelled or when her request for indefinite portability was refused.
IMPAIRMENT ASSESSMENT
The second qualification requirement for DSP under s 94(1)(b) is whether the impairments attract a rating of 20 or more points under the Impairment Determination.
For this purpose, the Impairment Determination sets out rules that must be applied.
The rules provide that an impairment may only be assigned a rating if it results from a ‘permanent’ medical condition, and the impairment is likely to last for more than two years: s 6(3).
A ‘permanent’ medical condition is one that has been ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ that is likely to persist for more than two years. If a medical condition is not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’, it cannot be taken as ‘permanent’ and the functional impact of any resulting impairment cannot be assigned points under the Impairment Tables.
Furthermore, the functional impact of chronic pain that results from a ‘permanent’ condition is to be assessed under the Table relevant to the area of function affected: s 6(9). Should an impairment result from a ‘permanent’ medical condition with an episodic or fluctuating character, a rating must be assigned under the relevant Table that reflects the ‘overall functional impact’, taking into account ‘the severity, duration and frequency of the episodes or fluctuations’: s 11(4). Where a single condition causes multiple impairments, each impairment should be assessed only once under the relevant Table: s 10(3) and (4). When two or more conditions cause a ‘common or combined impairment’, a single rating should be assigned under the relevant Table: s 10(5). It is not appropriate to assess a common or combined impairment more than once: s 10(6).
Impairments resulting from permanent conditions
The medical evidence establishes that Ms Mackenzie the following medical conditions caused impairment as of 25 August 2017 and 20 January 2017 –
(a)a cervical spine condition;
(b)a lumbar spine condition;
(c)fibromyalgia;
(d)chronic fatigue syndrome; and
(e)irritable bowel syndrome.
It is not established by evidence that Ms Mackenzie had been diagnosed with anxiety or depression on or before 25 August 2016 or 20 January 2017.
The Secretary nominates several other conditions, including headaches, memory problems and a sleep disorder.
If these are separate medical conditions, and there is some doubt about this, they were not diagnosed prior to August 2016 or January 2017. There is evidence, including the reports of Dr Belthikiotis for example, that suggests headaches, memory and concentration difficulties and altered sleep may be symptoms or results of one or more of the chronic medical conditions Ms Mackenzie experienced over many years.
Each of these symptoms or conditions has been investigated and treatments commenced since Ms Mackenzie’s DSP was cancelled. The reports of Dr Hawke, Dr Blackwood, Dr Urriola, Dr Erdstein, Dr Stone, Dr Chien, Dr Goh and Ms Duggan are compelling evidence of this.
That being so, even though there is medical evidence spanning many years that establishes the existence of headaches, concentration difficulties and altered sleep, I am not persuaded that these symptoms or conditions were fully investigated, diagnosed, treated and stabilised when Ms Mackenzie’s DSP was cancelled. Nor am I satisfied that anxiety and depression are conditions that were fully diagnosed, fully treated and fully stabilised on or before January 2017.
Cervical spine condition
The Secretary concedes, correctly in my view, that Ms Mackenzie’s neck condition is ‘permanent’ for the purposes of the Impairment Determination – it has been fully diagnosed, fully treated and fully stabilised for the present purposes. This condition has been referred to in medical reports over many years. It has been investigated radiologically[63] and assessed by a neurosurgeon.[64] The condition is degenerative in nature and it is likely to persist for more than 2 years without improvement – all reasonable treatment has been undertaken. I note in particular discovertebral changes and cord compression at the C6/7 level, and the reverse cervical lordosis (first reported on 30 August 2004),[65] which was associated with muscle spasm on 21 February 2017 and 21 April 2017.[66]
[63] See, for example, T10, ST1 and ST2.
[64] T19, folio 156.
[65] T10, folio 87.
[66] ST1 and ST2.
From this it follows that impairment resulting from Ms Mackenzie’s cervical spine condition may be assigned a rating under the relevant Table.
Lumbar spine condition
The Secretary accepts that Ms Mackenzie’s low back condition is ‘permanent’. On the evidence before the Tribunal, this is correct.
It is quite clear that Ms Mackenzie has degenerative discovertebral changes in her lumbar spine at the L5/S1 level that have been fully diagnosed, fully treated and fully stabilised for present purposes.
It follows that impairment resulting from this condition may be assigned a rating under the relevant Table.
Fibromyalgia
The Secretary asserts that this condition was fully diagnosed, but not fully treated and fully stabilised on the day Ms Mackenzie’s DSP was cancelled.
In the Secretary’s submission, Ms Mackenzie had not undertaken all reasonable treatment, including recommended medications, aerobic exercise and rheumatological review, prior to the cancellation of her DSP.
I do not agree.
While the evidence may be scant, there is sufficient medical material to establish that Ms Mackenzie did adhere to medical recommendations in respect of treatment, at least for a time.
Amitriptyline was recommended by Dr De Jager in 2005. A short while later, Dr Gurr reported that the dose of Endep, which is an amitriptyline preparation, was increased. This corroborates Ms Mackenzie’s evidence that she took amitriptyline for a time, but stopped as it was not effective in alleviating her symptoms or her condition. In 2017, Dr Spencer noted that Ms Mackenzie had tried tricyclic antidepressants in the past, without good effect. There is no medical evidence suggesting that further treatment with amitriptyline would be likely to significantly improve Ms Mackenzie’s condition such that she would be able to work.
Aerobic exercise was recommended by Dr De Jager in 2005 and again by Dr Urriola in 2017. There are two things to say about this. Firstly, there is sufficient evidence to establish that Ms Mackenzie engaged in regular exercise, as recommended, for a time. In 2006, Dr Gurr reported that Ms Mackenzie was attending to exercise 3 times each week. Dr Belthikiotis reported that she was undertaking gentle stretching and mobilising. On the report of Dr Belthikiotis and Dr Goyal, Ms Mackenzie had poor exercise tolerance as a result of her debilitating medical conditions. I should say at this point that Ms Mackenzie’s fibromyalgia is a chronic condition, complicated by other medical conditions, including chronic fatigue syndrome, irritable bowel syndrome, as well as cervical and lumbar spine conditions. When considering aerobic exercise, it is important to consider the effect other medical conditions had on her exercise tolerance. Ms Mackenzie’s neck and low back conditions, which are associated with dicsovertebral changes in her spine, were likely to reduce her exercise tolerance. Furthermore, on Dr Goyal’s report, Ms Mackenzie experienced increased pain with activity. In all likelihood, these factors may explain why Dr Belthikiotis recommended gentle stretching and mobilising exercise. This evidence corroborates Ms Mackenzie account of undertaking exercise as recommended by her treating doctors, although she asserts that the exercise was not effective in alleviating symptoms, rather it exacerbated her pain and it was not possible for her to continue. This is consistent with Dr Spencer’s 1 September 2017 report.[67] The balance of the evidence does not establish that further aerobic exercise is likely to result in functional improvement, such that Ms Mackenzie might be able to do any work within 2 years.
[67] ST11, folio 268.
The present evidence does not establish that treatment by a clinical psychologist, a sleep physician or any other doctor is likely to result in significant functional improvement to a level enabling Ms Mackenzie to undertake work within 2 years. On evidence of Dr Goyal, Dr Spencer and Dr Thomson, functional improvement is not expected to result and remains no more than a possibility. On this point, I accept Dr Goyal’s statement on 27 July 2016 –
[Ms Mackenzie] has been like this for 10 years and even though I have not seen pt bef unlikely things are going to change after 10-12 years.[68]
[68] T29, folio 191.
It should not be assumed without evidence that further treatment, in the form of a rheumatological review for example, is likely to reduce the functional impact of this condition. Speculation about such matters is not a sound basis for determining a claim.[69]
[69] Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [30].
I do not accept the proposition that periodic specialist review of an established chronic condition is required to establish that the condition has been fully treated and fully stabilised for present purposes – there is no such requirement in the legislation. In Secretary, Department of Employment and Workplace Relations v Harris[70] a Full Court of the Federal Court made the following uncritical observations in respect of remarks made by Gyles J in disposition of Mr Harris’ appeal –
30 His Honour found it troubling that an applicant with a long standing diagnosed condition being treated in a conventional fashion was rejected for benefit simply on the basis that further examination by another medical practitioner might suggest some other diagnosis or some other treatment. An applicant for benefit should present with a properly prepared application supported by a treating doctor. His Honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion. His Honour said (at [18]):
That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.He went on to observe that the AAT stood in the shoes of the Department and was in precisely the same situation as the decision maker. It could have arranged investigation of the claim under the provisions of s 33 of the AAT Act. This having been said, his Honour did not go so far as to say that the AAT was obliged in this case to carry out an investigation but rather that, absent investigations, it should have made a decision on the material before it without taking account of hypothetical third party investigations.[71]
[70] [2007] FCAFC 130.
[71] Ibid, at [30].
Even though these remarks related to the previous legislative regime for DSP that was in force at the time, to my mind, they are apposite here.
Nor do I accept that ongoing or possible further treatment intended to enable the person to better cope with the symptoms of an established chronic condition, such as Dr Thomson refers to in Mental Health Care Plan documents,[72] necessarily means the condition has not been fully treated or fully stabilised. Speculation about such things is not appropriate.
[72] See ST12, folio 272 and ST21, folio 288.
When considering such matters, the rules set out in s 6 of the Impairment Determination must be applied. Medical evidence dealing with the history of the condition and past, present and future treatment options must be considered when assessing whether all reasonable treatment has been undertaken and, if not, whether such treatment is likely to result in significant function improvement to a level enabling the person to work within 2 years.
In Ms Mackenzie’s case, on Dr Spencer’s report, the only further options posed related to a vocational assessment and the possibility that a clinical psychologist ‘might identify any features that could ease this chronic and rather distressing problem’.[73] Dr Thomson referred to “Ongoing specialist review – investigation and medical optimisation of chronic illness”.[74] To my mind, these treatment options do not amount to further ‘reasonable treatment’ that is likely to result in significant functional improvement within 2 years. Dr Spencer and Dr Thomson make no such suggestion.
[73] ST11 folio 268.
[74] ST12, folio 272 and ST21, folio 288
On balance, I am satisfied that Ms Mackenzie’s fibromyalgia condition was fully diagnosed, fully treated and fully stabilised in August 2016 and January 2017. It follows that resulting impairments which are likely to persist for more than two years may be assigned a rating under the relevant Tables.
In view of the Secretary’s written submissions in which it is argued that fibromyalgia cannot be assigned a rating, it is important to observe that the legislation requires assessment of impairment and the assignment of a rating for each impairment under the relevant Tables. There is no basis on which to rate a medical condition under the Impairment Determination or s 94 of the Act.
Chronic fatigue syndrome
The Secretary asserts that Ms Mackenzie’s chronic fatigue syndrome is inextricably associated with her fibromyalgia condition, and for this reason it should be assessed in conjunction with fibromyalgia. Furthermore, the chronic fatigue condition has not been fully treated or fully stabilised, such that it can be considered ‘permanent’ for the purposes of the Impairment Tables. Consequently, the Secretary submits, any resulting impairment cannot be assigned a rating.
In part, I agree.
Ms Mackenzie’s chronic fatigue syndrome is a medical syndrome that is identified by diagnostic criteria. It is a syndrome characterised by symptoms, including lethargy and fatigue. That Ms Mackenzie experiences these symptoms, and has done so for many years, is quite clear in the medical records. There is a difficulty distinguishing the symptoms and functional impacts of chronic fatigue syndrome from those of fibromyalgia. In all likelihood this underlies Dr Gurr’s suggestion that these conditions should be assessed together. There is some merit in this suggestion, and in the Secretary’s submissions.
Nevertheless, if one accepts, as I do, that chronic fatigue syndrome is a medical condition from which Ms Mackenzie suffered at the relevant times, it must be properly considered and assessed, applying the rules set out in the Impairment Determination.
The medical evidence clearly establishes that Ms Mackenzie has experienced chronic fatigue and lethargy for a period of years. There are also reports of her having an altered sleep pattern and poor sleep hygiene.[75] This was being investigated in 2017 and 2018, well after the particular dates I must consider. A treatment regimen to correct her altered sleep pattern was recommended. This is significant insofar as the treatment is intended to address her fatigue and lethargy, if the treatment is successful, her chronic fatigue syndrome may be improved and its functional impact reduced by correction of her sleep pattern.
[75] See T20 folio 160-161.
For this reason, I am satisfied that Ms Mackenzie’s chronic fatigue syndrome was not fully treated and fully stabilised in August 2016 or January 2017. In consequence, any resulting impairments cannot be assigned a rating under the Impairment Determination Tables.
Irritable bowel syndrome
In the Secretary’s submission, Ms Mackenzie’s irritable bowel syndrome condition was fully diagnosed, but it was not fully treated or fully stabilised on the relevant dates. As this condition was not ‘permanent’ at those times, the Secretary says resulting impairments cannot be assigned a rating.
There are difficulties assessing this condition, primarily because there is very little medical evidence on point.
Dr De Jager’s 2005 report suggests a diagnosis of irritable bowel syndrome.[76] But the doctor does not refer to any investigations or other basis on which the diagnosis was made, and no treatment was recommended or prescribed.
[76] T16.
Even if I accept that irritable bowel syndrome was diagnosed, there is insufficient evidence before the Tribunal on which to assess whether the condition had been fully treated and fully stabilised by August 2016 or January 2017. Furthermore, there is not sufficient medical evidence to assess the character and extent of any resulting impairment. While I am prepared to accept Ms Mackenzie’s account of bowel upset, necessitating frequent and prolonged visits to the toilet, which is corroborated by reports of Dr Belthikiotis more than 12 years ago, there is no probative evidence on which findings can be made in respect to the nature and extent of impairment in August 2016 and January 2017.
I am not persuaded, on the evidence, that Ms Mackenzie’s irritable bowel syndrome was fully treated and fully stabilised in August 2016 or January 2017. For this reason, no rating can be given for any resulting impairment.
Impairment assessment
The next step is to assess impairments resulting from Ms Mackenzie’s ‘permanent’ conditions and, where the impairment is likely to persist for more than 2 years, then to assign a rating under the relevant Tables.
The following impairments result from Ms Mackenzie’s ‘permanent’ cervical spine, lumbar spine and fibromyalgia conditions –
(a)neck impairment;
(b)low back impairment;
(c)upper limb impairment;
(d)lower limb impairment;
(e)physical exertion and stamina impairment; and
(f)cognitive impairment.
I note Dr Gurr’s comment that Ms Mackenzie’s fibromyalgia and chronic fatigue syndrome should be assessed together. That is not possible as I have found that her chronic fatigue syndrome is not ‘permanent’ for present purposes and resulting impairment cannot be assigned a rating. While some impairments may be common to both conditions, in circumstances such as this, where one cause of impairment drops away, it is necessary to determine the extent to which the level of impairment resulting from the remaining cause is reduced, if at all, when assessing the level of functional impact under the relevant Table.
Neck impairment
In the Secretary’s submission, this impairment attracts a rating of 5 points under Table 4.
The evidence of Dr De Jager, Dr Belthkiotis, Dr Goyal and Dr Thomson, is that Ms Mackenzie experiences neck pain as result of her cervical spine condition as well as from her fibromyalgia condition. Ms Mackenzie explained that she cannot differentiate the causes of her neck pain.
It is not appropriate to assess Ms Mackenzie’s neck impairment stemming from discogenic causes separately from impairment arising from fibromyalgia.
There are two reasons for this. Firstly, as Ms Mackenzie explained, it is not possible to distinguish pain-related impairment on the basis of medical causation. Secondly, it is quite clear that Ms Mackenzie’s neck impairment results from both medical conditions and may be characterised as common to those conditions, such that only a single rating should be made.
There is some evidence of Ms Mackenzie experiencing headaches and nausea as a result of neck pain.[77] There is also evidence from Professor Hawke that her headaches are “compatible with common migraine”.[78] If that is correct, it is a diagnosis made well after the decision to cancel her DSP. For this reason, migraine headaches, as a separate medical condition, cannot be accepted as ‘permanent’ when Ms Mackenzie travelled overseas in August 2016 or when the decision to cancel her DSP was made in January 2017. It follows that impairment resulting from migraine headaches cannot be assigned a rating.
[77] See T15, folio 131 and T32, folio 205, for example.
[78] Report of Professor Hawke, 26 November 2018.
Ms Mackenzie’s evidence is that, previously, she had experienced more frequent intense headaches and nausea than she does presently. She explained that she would experience severe headaches 2 or 3 times each week in 2016 and 2017, when Professor Hawke assessed her, but now they are “not often”. With regard to neck-related nausea, Ms Mackenzie’s evidence is that she experienced this every day in the past, but now it occurs once per week, with episodes lasting for between 30 minutes and a whole day.
I note that on 24 January 2005, Dr Belthikiotis reported “Frequent episodes severe neck, mid low back pain and stiffness associated with headaches & nausea. Frequent exacerbations. Can last days – weeks, at times”.[79] On 22 December 2006, Dr Belthikiotis reported “Severe episodes severe neck pain associated with headaches and vomiting. Can last weeks when occur. Some days of only moderate pain”.[80]
[79] T15, folio 130.
[80] T20, folio 158.
On 2 May 2017, several months after the date I must consider, Dr Gay reported that Ms Mackenzie complains of “constant neck pain that varies in intensity” and, when her neck pain is not too bad, she can do “all normal activities with caution”, although she “gets pain that confines her to bed twice a month”.[81]
[81] ST4, folio 255
On 21 August 2017, Dr Nham reported that Ms Mackenzie had a full range of neck movement.[82] This is consistent with previous medical examination findings over many years.
[82] ST9, folio 265.
I note Ms Mackenzie’s description of difficulties in the Work Capacity form she completed on 15 July 2016.[83] Her evidence is that she has difficulty washing dishes, vacuuming the house, lifting objects, hanging out washing, reaching behind and overhead to the left, and washing her hair. This is broadly supported by the medical evidence, although much of the medical evidence lacks specific detail in respect of functional particularities at or about the particular time I must consider.
[83] T27, folio 179.
Considering the available evidence, I am satisfied that Ms Mackenzie’s neck pain is constant but fluctuates, day to day. On some days she can do most things, albeit cautiously and slowly, but on other days she cannot do much at all and is confined to bed with related nausea and headaches.
In circumstances of this kind, it is necessary to take account of the severity, duration and frequency of episodes or variations when assessing the overall function impact of related impairments. It is not appropriate to assign a rating on the basis of days when the impairment is most severe; nor is it appropriate to assign a rating on the basis of days when the functional impact of the impairment is lowest.
Doing the best with the available material and considering the contents of Table 5, I am satisfied that, overall, Ms Mackenzie’s neck impairment had a moderate functional impact when she travelled overseas in 2016 and when the primary decision was made in January 2017. I am satisfied that, at those times, Ms Mackenzie was able to sit in a car for at least 30 minutes and was unable to sustain overhead activities. She also had difficulty moving her head to look over her left shoulder.
I am not persuaded that the overall functional impact of Ms Mackenzie’s neck impairment was mild. The descriptor at that level of ‘some difficulty’ is not consistent with the medical evidence and Ms Mackenzie’s own account of the functional impact of the neck pain and related symptoms she experiences. Nor am I persuaded that her neck impairment is properly rated as ‘severe’. The available evidence does not establish that Ms Mackenzie was unable to perform any overhead activities or to turn her head without moving her trunk, for example.
It is appropriate to assign a rating of 10 points under Table 4 for Ms Mackenzie’s neck impairment.
Lower back impairment
The Secretary accepts that Ms Mackenzie’s low back condition is ‘permanent’. On the evidence before the Tribunal, this is correct.
It is quite clear that Ms Mackenzie has degenerative discovertebral changes in her lumbar spine that have been fully diagnosed, treated and stabilised, insofar as this possible in the circumstances. It is also clear that Ms Mackenzie’s fibromyalgia condition contributes to cause pain in her lower back.
It follows, therefore, that Ms Mackenzie’s low back impairment can be assessed under Table 4.
On 2 May 2017, Dr Gay reported –
“Her symptoms vary on a day to day basis. When the pain is bad it impacts her day to day function by making it difficult to hang clothes on the line, do the washing up at the sink and even stir when she’s cooking.”[84]
[84] ST4, folio 255.
In the Secretary’s submission, it is not appropriate or permissible to assign a rating under this Table, however, as a rating has already been given in respect of Ms Mackenzie’s neck impairment. The Secretary argues that a common or combined impairment cannot be rated more than once, and the phrase ‘common or combined impairment’, which is not defined, should be understood to mean “similar impairments affecting the same aspect of bodily function”.[85] Thus, so the argument goes, conditions affecting the same bodily function cannot be assigned separate impairment ratings. The Secretary asserts that each Table is directed to a particular bodily function and, for this reason, “more than one impairment rating cannot be assigned under the same impairment table”.[86] Furthermore, the Secretary draws support for these contentions from the Review of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (the Review),[87] in which it was said –
The HPAU was consulted and an approach of splitting the spinal function table into two tables was suggested, i.e. one impairment table for functions of the cervical spine and another impairment table for the thoraco-lumbar-sacral spine. Splitting Table 5 in this way may not be consistent with the Advisory Committee’s suggested movement away from a body-system based assessment approach.[88]
[85] Secretary’s written submissions, 7 February 2019, paragraph [14].
[86] Ibid, paragraph [28].
[87] Review of the Tables for the Assessment of Work-Related Impairment for Disability Support Pension, May 2012.
[88] Ibid, page 30.
In the Secretary’s submission, an impairment of cervical spine function and an impairment of lumbar spine function cannot be assigned separate ratings under Table 4. This construction, the Secretary argues, has been accepted by the Tribunal in different cases[89] and, although there is no binding precedent, the same construction should be accepted in this case.
[89] See, for example. Re Johansson and Secretary, Department of Social Services [2014] AATA 956 and Re Cox and Secretary, Department of Social Services [2017] AATA 1550.
I should say immediately, that while previous decision of this Tribunal are not binding in any strict sense, it is desirable for Tribunal decisions to be consistent, such that, in principle, one might follow another. But one must be careful to properly discern common principle, especially as so many Tribunal cases turn on their own facts.
The uncontroversial principle arising from the legislation and the decisions to which reference has been made is that a common or combined impairment cannot be assigned more than one rating.
Essentially, resolution of this issue turns on proper construction of the legislation and, in particular, the meaning of ‘impairment’, ‘function’ and ‘common or combined impairment’.
As I have said, for the purposes of the Impairment Determination, the word ‘impairment’ is given meaning in s 3. It refers to ‘a loss of functional capacity affecting a person’s ability to work that results from the person’s condition’.
The conception of ‘functional capacity’ in this context requires some illumination. It is directed to the functioning of bodily systems rather than anatomic structures, and the person’s ability to perform the particular function.
Thus, impairment exists when the person’s ability to perform a particular bodily function is reduced to the extent that the person’s ability to work is affected.
Section 5(2) provides that the Tables are function based and that the descriptors, the functional activities, abilities, symptoms and limitations set out in each Table, are intended as measures of the ‘functional impact of impairment’.[90] Clearly enough, the descriptors provide graduated examples against which a person’s loss of ability to perform a particular physiological function is to be evaluated or assessed. The descriptors are not conditions of eligibility to be strictly applied.[91] As Bromberg J said in Sesalim v Secretary, Department of Social Services (Sesalim’s case) –
The examples are not definitional but are illustrative in the sense they provide examples of the extent of the functional difficulties that a person who falls within that particular rating may be expected to have in relation to the activities exemplified.[92]
[90] Negri v Secretary, Department of Social Services [2016] FCA 879 at [39]; Sesalim v Secretary, Department of Social Services [2018] FCA 1189 at [14].
[91] Negri v Secretary, Department of Social Services [2016] FCA 879 at [43].
[92] Sesalim v Secretary, Department of Social Services [2018] FCA 1189 at [20].
It is in this way that the functional basis of the Tables can be understood. The Tables are for ‘the assessment of work-related impairment”: s 4(2). They are intended to enable assessment of the functional impact of impairment using a graduated structure of ratings - “no”, “mild”, “moderate”, “severe” or “extreme”, with points specified at each level. Each Table deals with an area of physiological function, under which the functional impact of impairment, or loss of that function, is to be evaluated.
Things become less clear when dealing with the conception of ‘common or combined impairment’. The words themselves can readily be understood. A common impairment is a singular impairment that arises from or is attributable to two causes. A combined impairment treats two or more impairments as one for the purposes of the Impairment Determination. The circumstances in which two impairments are to be treated as one are not clearly spelled out. It is conceivable, as the Secretary contends, this might arise when a neck impairment and a low back impairment result from different medical conditions, such that the impairment is to be treated as common, being a singular impairment of spinal function, or the two impairments are to be combined for rating purposes, as only one rating is permissible under each Table.
Under the construction for which the Secretary contends, spinal function is a singular bodily function for the purposes of the Tables. It is for this reason the Secretary argues that only one rating may be assigned under Table 4.
The process to be followed is set out in s 10 of the Impairment Determination –
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
As can be seen, there is no express bar to multiple ‘impairments’ being assessed under a single Table. The bar arises where impairments are common or combined or there is a ‘combined or common effect’. If the Minister intended to impose a bar such as proposed by the Secretary, it would have been a matter of simplicity to state that only a single rating under each Table is permissible. But this was not done.
Take the example of a person with two medical conditions, where the first causes a neck impairment characterised by difficulty moving the head in all directions, and the second causes a low back impairment characterised by inability to bend forward to knee height. It can readily be accepted that a neck impairment and a low back impairment are both impairments of spinal function. Under Table 4, each impairment, separately assessed, might attract a rating of 10 points, producing an overall rating of 20 points, whereas if the impairments are considered as ‘common or combined,’ a rating of 10 points would then result. In effect, the functional impact of the ‘common or combined’ impairment would be the same as the functional impact of the neck impairment or the low back impairment.
Under the construction for which the Secretary contends, only a single rating would be given.
There are three difficulties with this.
Firstly, a result of this kind may not properly reflect the true functional impact resulting from both impairments. I am not persuaded that a result of this kind is consistent with the text, objects and purposes of the Impairment Determination and s 94 of the Act - impairments should be rated in a manner that properly reflects the degree of functional loss that is established by evidence. In some cases, possibly even many cases involving rateable impairments of the neck and lower back, the functional impact, and the degree of functional loss affecting the person’s ability to work, of two such impairments may be greater than a singular impairment of spinal function. These are matters for evidence in the particular case. As the Secretary has noted, I raised similar issues in 2016 in the case of Re O’Cass and Secretary, Department of Social Services.[93]
[93] [2016] AATA 876 at [46]-[50].
Secondly, the selection and assessment processes set out in the Impairment Determination must be applied. Where impairments are common or combined for the purposes of s 10(5) of the Impairment Determination, or they have a combined or common effect, a single rating should be assigned to reflect the overall functional impact, noting that the overall rating might be at a higher level than a single rating for either impairment should there be sufficient evidence to do so. Where impairments are not common or combined and they do not have a combined or common effect, separate ratings should be assigned. It is important to note that the descriptors set out at each level in the Tables are indicative examples only. They are not criteria to be strictly applied.
And thirdly, if there is ambiguity in the text of the Impairment Determination, and the Secretary’s submissions serve to highlight an area of ambiguity, a beneficial construction should be adopted. The Impairment Determination is a creature of the Act, and it serves the purposes of the legislation under which it is made. In that context, both are beneficial in nature, and each should be construed generously in the presence of ambiguity. Certainly, there is logic in the Secretary’s reasoning, but it is not the only logical interpretation of the legislation that is open, and it is not the most beneficial.
Nevertheless, presently, for reasons that will appear, I do not need to resolve these issues in this case. Ms Mackenzie’s claim succeeds for other reasons. That being so I will not proceed to assign an additional rating to the functional impact of her low back impairment under Table 4.
Upper limb impairment
The Secretary did not address this impairment, preferring to address fibromyalgia (in combination with chronic fatigue syndrome) globally.
I am not persuaded that Ms Mackenzie’s upper limb impairment can be subsumed in an overall rating for fibromyalgia. Fibromyalgia is a medical condition not amenable to rating under the Impairment Determination. Only impairments are capable of rating under the applicable Tables and, once the threshold of permanence has been crossed, each impairment, as defined, must be rated under the relevant Table.
Ms Mackenzie asserts that she experiences pain, joint stiffness, tingling and hypersensitivity in her hands and arms. There is very little medical evidence addressing this point.
In 2005, Dr De Jager reported Ms Mackenzie’s complaints of “pain in the wrists, knuckles, shoulders, neck and back”.[94]
[94] T16, folio 137.
In August 2016, a job capacity assessor reported that Ms Mackenzie “experiences the sensation of intermittent tingling and numbness in her arms and hands”.[95]
[95] T32, folio 205.
On 3 August 2017, Dr Thomson issued a medical certificate in which she diagnosed “Right lateral epicondylitis”, with “Elbow pain, inability to weight bear dominant hand, inability to perform any repetitive push-pull exercises”, as well as fibromyalgia, with “Multijoint pain and fatigue”.[96] The basis for Dr Thomson’s diagnosis of right lateral epicondylitis and the extent to which, if at all, it related to Ms Mackenzie’s fibromyalgia is not made clear. There is no other reference to epicondylitis in the documents provided to the Tribunal. Ms Mackenzie explained that this condition arose when she undertook house cleaning employment over the Christmas period. Her evidence is that this work was largely undertaken by a friend and “It cruelled me”.
[96] ST25, folio 296.
On 2 November 2017 and 8 January 2018, Dr Thomson noted that Ms Mackenzie’s day to day symptoms included “chronic aches in joints”.[97]
[97] ST12, folio 271 and ST 21, folio 289.
On 7 March 2018, Dr Latief, a specialist rheumatologist, reported that Ms Mackenzie complained of “suffering from pain all over since the end of 1992 including her head, her neck, her shoulders, her hands, arms, legs and feet”.[98]
[98] ST26, folio 297.
On 19 March 2018, Dr Sharma, a general practitioner, reported that Ms Mackenzie “currently has pain in her neck and shoulders”.[99]
[99] ST28, folio 303.
As can be seen, Ms Mackenzie has a long history of upper limb symptoms which, with the exception of the epicondylitis Dr Thomson diagnosed, have been related to her fibromyalgia.
The functional impact of her upper limb impairment is not clearly expressed in the medical documents before the Tribunal. Dr Goyal referred to difficulties with lifting and carrying.[100] The Job Capacity Assessor reported that Ms Mackenzie “is unable to sustain overhead work and has difficulty using her hands at times”.[101] These reports are consistent with Ms Mackenzie’s account of experiencing difficulties with daily chores as a result of chronic pain and other symptoms of fibromyalgia, including in her upper limbs.
[100] T29, folio 191.
[101] T32, folio 205.
The materials to which I have referred above, clearly demonstrate the persistence of upper limb impairment over a long period commencing many years before, and continuing after, August 2016 and January 2017. I am satisfied that her upper limb impairment is likely to persist for at least two years.
It follows that Ms Mackenzie’s upper limb impairment may be assigned a rating under Table 2.
Considering the descriptors at the specified gradations of functional impact from ‘no’ to ‘extreme’ and the episodic or fluctuating nature of Ms Mackenzie’s upper limb impairment, I am satisfied that the available evidence, including Ms Mackenzie’s own account of the impairment,[102] is consistent with an overall mild functional impact – she has some difficulty lifting things and using her hands. I accept that on bad days, when the upper limb pain and impairment flares, she is unable to do most things, such that a severe functional impact might be found on those days. I also note that, on other days, Ms Mackenzie is able to carry out most activities of daily living, albeit cautiously and with some difficulty.
[102] See T27, folio 179 for example.
Having regard to the descriptors set out in Table 2, I am satisfied that the overall functional impact of her upper limb impairment is greater than nothing and less than moderate. Ms Mackenzie’s upper limb impairment is consistent with a rating of 5 points.
Lower limb impairment
The Secretary does not address Ms Mackenzie’s lower limb impairment and proceeds on the basis of fibromyalgia, generally.
Ms Mackenzie maintains that she experiences chronic lower limb pain and sciatica that affect her functional capacity. In a Centrelink Work Capacity questionnaire on 15 July 2016, she referred to “Long periods of time spent in the bathroom due to IBS (which will often result in severe pins and needles and numbness down both legs)”.[103]
[103] T27, folio 177.
Once again, as with the upper limb impairment, there is only scant medical evidence to go on.
On 16 February 2006, Dr Leamon, a neurosurgical resident for Dr Withers, reported persisting complaints of, among other things, “bilateral sciatic symptoms” and his neurological examination of Ms Mackenzie’s upper and lower limbs.[104]
[104] T19, folio 156.
In a referral to Dr Maxwell on 11 March 2010, Dr Drew, a general practitioner, reported “neurological symptoms – including parasthesiaes in left leg”.[105] It is not clearly established if these lower limb symptoms had a neurological character, perhaps involving radiculopathy, or were symptoms of fibromyalgia.
[105] T24, folio 171.
On 24 August 2016, the Job Capacity Assessor reported that Ms Mackenzie “experiences intermittent tingling and numbness in her legs”.[106]
[106] T32, folio 204.
I accept that Ms Mackenzie’s lower limb impairment is characterised by pain, tingling and numbness, and that these symptoms fluctuate with activity and from day to day. I am satisfied that the impairment has persisted for many years and it is likely to persist into the future, for at least 2 years.
I accept that on bad days she experiences chronic pain that prevents her from doing most things, including activities involving use of her lower limbs, and on other days she is able to do most things involving use of her lower limbs, albeit cautiously and slowly. On those days, she may experience tingling and numbness, but the available evidence does not establish that these symptoms cause her difficulty undertaking activities using her lower limbs. I am satisfied that Ms Mackenzie has some difficulty walking to and around a supermarket and on bad days she is unable to stand for more than 10 minutes.
Considering the graduated scale of functional impacts and the descriptors set out in Table 3, and noting the scant medical evidence corroborating Ms Mackenzie’s account of the functional impact of this impairment, I am satisfied that the level of her impairment is between no functional impact and a mild functional impact. Her lower limb impairment is not consistent with the descriptors at the severe functional impact level. Overall, she has some difficulty with activities involving use of her lower limbs. This exceeds the descriptors at the no functional impact level, but it does not fully meet the descriptors exemplifying a mild functional impact.
Under s 11(1)(c) of the Impairment Determination, where an impairment is assessed as falling between to impairment ratings, the lower rating should be assigned.
It follows that her lower limb impairment is assigned a rating of 0 points under Table 3.
Exertion and stamina impairment
In the Secretary’s submission, Ms Mackenzie’s fibromyalgia and chronic fatigue syndrome impairment is characterised by weakness, memory difficulties and fatigue. This impairment, the Secretary argues, should be assigned 0 points under Table 1. This, so the argument goes, is because the impairment is less than ‘mild’ – Ms Mackenzie can walk to the shopping centre without being out of breath, she can negotiate some stairs in her home, and she can walk one block to the hospital and back, the return journey being uphill. Furthermore, the Secretary asserts that Ms Mackenzie is engaging in activities to improve her fitness and exercise tolerance. The Secretary asserts that these capabilities are not consistent with descriptors at the ‘mild’ level of functional impact under Table 1.
Ms Mackenzie asserts that her fibromyalgia often prevents her from undertaking common activities and household chores, and when she is able to undertake such things, she can only do so slowly, cautiously, when compared with a normal person. Her evidence is that she is able to walk from her home to the hospital but this is only a short distance, past 5 houses, and it takes her 5 minutes to walk there and 15 minutes to return home, uphill. She gave evidence that washing dishes can take hours and she avoids the steps at the front of her house, opting instead to enter and exit through the rear door.
Once again, there is very little medical evidence addressing the functional impact of Ms Mackenzie’s exertion and stamina impairment. Nevertheless, the medical materials that address this point span a long period of time, from 2005 to 2018, and they confirm that Ms Mackenzie’s fibromyalgia and the resulting exertion and stamina impairment has persisted through this time.
I am satisfied that Ms Mackenzie’s exertion and stamina impairment is likely to persist for more than two years. From this it follows that the functional impact of this impairment may be assigned a rating under Table 1.
Considering the gradations of functional impact from ‘no’ to ‘extreme’ and the related descriptors that are set out at each level, I am satisfied that the overall impact of Ms Mackenzie’s exertion and stamina impairment is moderate. The available evidence establishes that she is not able to undertake age-appropriate exercise for at least 30 minutes at a time, and she experiences difficulty undertaking physically active tasks – the functional impact exceeds the ‘no functional impact’ level.
I am satisfied that the impairment exceeds the ‘mild’ functional impact level. The available evidence is sufficient to establish that Ms Mackenzie experiences frequent symptoms and difficulties walking to local facilities and performing even mild physical activities, such as washing dishes. The present evidence does not establish, as a matter of probability, that Ms Mackenzie is able to perform most work-related tasks.
The functional impact of Ms Mackenzie’s exertion and stamina impairment is consistent with the descriptors of a moderate level of functional impairment. Her symptoms are frequent and these cause her difficulty performing day to day activities around her home. She is able to use public transport and to walk around a supermarket, albeit with some difficulty and slowly. It is possible that she may be able to undertake some work-related tasks that do not involve physical exertion. However, her ability to do so is likely to be impeded by other impairments that affect her ability to sit or stand, and cause difficulties with her memory and concentration.
Overall, Ms Mackenzie’s exertion and stamina impairment is not consistent with the descriptors of a severe functional impact. I accept that on bad days the impairment may reach a severe level of functional impact. It would not be appropriate, however, to assess the functional impact of her impairment on those days, alone. An overall assessment must be made.
For these reasons, a rating of 10 points under Table 1 is appropriate.
Impairment rating
Ms Mackenzie’s assessable impairments are of 25 points under the Tables set out in the Impairment Determination.
This means she satisfied the second qualification requirement for DSP under s 94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
The next step is to assess whether Ms Mackenzie satisfied the third qualification requirement for DSP set out in s 94(1)(c) of the Act, relating to a continuing inability to work on the day her DSP was cancelled.
The phrase ‘continuing inability to work’ is given meaning by s 94(2) of the Act –
(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.
The Secretary accepts, correctly, that s 94(2)(aa) does not apply in this case.
Ms Mackenzie maintains that she would like to work if she could, but her medical conditions and related impairments prevent her from doing so. Furthermore, in her submission no employer would offer employment to a person who needs to take so many breaks for health reasons, noting that absenteeism was a significant problem in the past.
The Secretary asserts that Ms Mackenzie does not meet this requirement as her work capacity was assessed just before the cancellation decision was made, and the assessor reported that Ms Mackenzie would be able to work between 15 and 22 hours per week within 2 years. Furthermore, the Secretary argues that medical certificates in evidence refer to only limited periods in which Ms Mackenzie was unfit for work or study and, in some cases, these were certificates issued by doctors without a detailed knowledge of her case. In the Secretary’s submission, the medical certificates were produced in order to meet job network requirements and should be considered in this context.
While there is some force to the Secretary’s submissions, the weight of evidence points to a different conclusion.
The Job Capacity Assessment on 24 August 2016 reported the following in terms of work capacity –
Baseline Work Capacity: 8-14 hours per week
(Excludes any temporary impacts noted above)
Rationale: Ms Mackenzie has a recommended baseline work capacity of 8-14 hours per week due to restrictions imposed by her fibromyalgia and gastrointestinal and back conditions. Her symptoms of pain have a significant impact on her ability to perform work related and daily living activities.
Suitable work: Light less skilled (WO3)
Examples: Process worker
Capacity for work within 2 years with Intervention: 15-22 hours per week
Rationale: Ms Mackenzie has a recommended with intervention work capacity of 15-22 hours per week due to restrictions imposed by her fibromyalgia and gastrointestinal and back conditions which have a significant impact on her functional capacity. With disability specific intervention that provides Ms Mackenzie with disability management counselling and support to gain and maintain suitable employment she is expected to be able to work for up to 22 hours per week within 2 years.
Suitable work: Light less skilled (WO3)
Examples: Process worker
…
Interventions that were identified for this client
Intervention: Injury management (H57)
Intervention: Disability management education/counselling (H59)[107]
[107] T32, folio 207.
The secretary urged me to accept this reported assessment as it was produced by a qualified assessor with special training.
Well it may be that the assessor is qualified and has undertaken some training, although evidence of this was not placed before the Tribunal, but the assessment is less than compelling. At hearing, no explanation was provided about the particular nature of the ‘interventions’ specified in the report that were expected to lift Ms Mackenzie’s work capacity above 15 hours per week. The assessor was not called to give evidence, so it is difficult to go further into these matters. Nevertheless, to my mind, the ‘interventions’ are as opaque as the rationales provided.
It is possible that ‘injury management’ and ‘disability management education/counselling’, whatever they may involve, might provide Ms Mackenzie with some assistance. But I struggle to understand how such ‘interventions’ might be expected to lift her work capacity in the context of ‘permanent’ medical conditions which the assessor acknowledges “have a significant impact on her functional capacity”. I note the assessor reported that Ms Mackenzie’s ‘permanent’ conditions were expected to remain the same or deteriorate within 2 years. Without some evidence on these points, the Job Capacity Assessment is hardy compelling. This is especially so when it is compared with a previous Job Capacity Assessment on 3 January 2007 which reported no change from the baseline work capacity of 8-14 hours per week with interventions within 2 years,[108] and the available medical evidence does not suggest any improvement or other material change in the functional impact of Ms Mackenzie’s impairment during the intervening period.
[108] T21, folio 166; T32, folio 206 refers.
The evidence of medical doctors who have produced reports and medical certificates over a long period, before and after the times I must consider, clearly indicates that impairments resulting from Ms Mackenzie’s ‘permanent’ conditions significantly impact upon her ability to undertake many activities, rendering her unfit for work or study.
The medical certificates in evidence do not certify the Ms Mackenzie has been unfit for work or study continuously, although the Secretary’s submissions on this point suggest that medical certificates have been produced in satisfaction of job network requirements. If that is correct, clearly enough, all of the medical certificates have not been provided to the Tribunal.
The Secretary’s submission in respect of medical certificates produced for job network requirements seems to suggest that certificates of this kind are not evidence that the person is actually unfit for work or study. If that is the submission, I reject it. I would need compelling evidence to find that a medical certificate given by a legally qualified medical doctor in some way misrepresented the actual state of the person’s fitness for work. There is no such evidence before the Tribunal in this case.
I accept, nevertheless, that a medical doctor may not have expertise in assessing ‘interventions’ that may assist a person to improve their work capacity within 2 years. Without evidence of the particular nature and content of the interventions that are recommended by the Job Capacity Assessor, however, it is difficult to accept these over the certified medical assessments of Ms Mackenzie’s treating doctors.
To my mind, the work capacity reported by Job Capacity Assessment of 24 August 2016 carries less weight than the medical certificates and opinions of doctors who have assessed and treated Ms Mackenzie before and after that date, namely the medical certificates of Dr Belthikiotis,[109] Dr Thomson,[110] and Dr Gay.[111] Even though Dr Belthikiotis’ assessment of Ms Mackenzie’s ability to work was made more than 10 years prior to the date on which her DSP was cancelled, on the evidence of Dr Goyal, which was not challenged, the effect of fibromyalgia on Ms Mackenzie’s ability to function remained unchanged.[112] The medical certificates of Dr Thomson and Dr Gay establish that this continued. I am satisfied that these effects of assessable impairment on Ms Mackenzie’s ability to function and work are ongoing.
[109] See T15, folio 135, for example.
[110] T39, folio 226; ST17, folio 278; ST25, folio 296.
[111] T40, folio 227
[112] T29, folio 191.
It is conceivable that she may benefit from counselling or a vocational assessment, as recommended by Dr Spencer, but the present materials and evidence do not establish that such activities would be likely to improve her capacity to work – it is no more than a possibility.
On balance, I am satisfied that Ms Mackenzie’s assessable impairments prevent her from doing any work independently of a program of support (as defined), or undertaking a training activity, within 2 years. Furthermore, even if Ms Mackenzie was found to be able to undertake a training activity within 2 years, the present evidence does not establish that doing so would be likely to enable her to undertake any work independently of a program of support within 2 years.
It follows that Ms Mackenzie meets the requirements of s 94(1)(c) of the Act.
UNLIMITED PORTABILITY
Finally, it is necessary to determine if Ms Mackenzie qualified for unlimited portability as of 25 August 2016.
I am satisfied that Ms Mackenzie did not have a ‘severe impairment’ attracting a rating of 20 points under a single Table for the purposes of s 94(3B) of the Act at that time.
For this reason, she did not satisfy s 1218AAA(1)(b) of the Act and she was not entitled to payment of DSP after 28 days outside Australia, being the applicable maximum portability period.
CONCLUSION
Ms Mackenzie was qualified for DSP on 20 January 2017.
Nevertheless, the decision to suspend payment of DSP on 25 September 2016 was correct, as she did not qualify for indefinite portability of DSP at that time.
DECISION
The decision to cancel Ms Mackenzie’s DSP is set aside, and in substitution thereof the Tribunal decides that Ms Mackenzie was qualified for DSP on 20 January 2017.
The decision denying unlimited portability of her DSP is affirmed.
The matter is remitted to the Secretary to calculate the amount of Ms Mackenzie’s DSP that is payable.
I certify that the preceding 223 (two hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member Simon Webb.
……………………………………………………
Associate
Dated: 27 March 2019
Date of hearing: 21 January 2019
Applicant: In Person
Solicitor for the Respondent: Mr James Pratt, Department of Human Services
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