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

Mannion and Secretary, Department of Social Services (Social services second review) [2017] AATA 2026 (31 October 2017)
Division:GENERAL DIVISION
File Number: 2016/6225
Re:Caroline Mannion
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:31 October 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed
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)
REASONS FOR DECISION
Member D K Grigg
31 October 2017
INTRODUCTION

On 10 September 2015 Ms Mannion lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as:[1]
·chronic lower back pain
·Raynaud’s disease
·restless legs syndrome
·clinical depression, post-traumatic stress, anxiety
·perimenopause
[1] Exhibit 1, T Documents, T 20, pages 92 – 124, Ms Mannion’s Claim for DSP dated 10 September 2015.
On 25 November 2015, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Ms Mannion by a Physiotherapist and Registered Psychologist. The JCA concluded that:[2]
(a)Ms Mannion’s spinal disorder and mental health conditions were fully diagnosed, treated and stabilised;
(b)Ms Mannion’s other conditions with temporary; and
(c)Ms Mannion’s spinal disorder and mental health conditions only attracted 10 points under the impairment tables.
[2] Exhibit 1, T Documents, T 22, pages 126 – 133, JCA Report dated 25 November 2015.
As a result of the JCA report the Department of Human Services (“Centrelink”) rejected Ms Mannion’s claim for DSP on 26 November 2015.[3]
[3] Exhibit 1, T Documents, T 23, pages 134 – 135, Letter from Centrelink dated 26 November 2015.
Claim History
Ms Mannion 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 Ms Mannion’s medical conditions did not have a total impairment rating of at least 20 points.[4]
[4] Exhibit 1, T Documents, T 26, pages 144 – 149, Decision of ARO and notes dated 19 April 2016.
Ms Mannion then sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Mannion’s claim and affirmed the ARO’s decision on 5 October 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 8 –14, SSCSD’s Decision and Reasons for Decision dated 5 October 2016.
Ms Mannion has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1 – 7, Ms Mannion’s Application for Review dated 17 November 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Mannion must have a physical, intellectual or psychiatric impairment;
(b)Ms Mannion’s impairments 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 Mannion must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Mannion meets the Section 94 Requirements is the date the claim is lodged (in this instance as at 10 September 2015), unless Ms Mannion 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 Mannion must have met the Section 94 Requirements between 10 September 2015 and 10 December 2015 (“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 Mannion’s 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 MANNION HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: 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 Mannion’s medical conditions
[10] Determination, s 3.
Spinal Condition
In 2011 Dr Keegan, General Practitioner, reported that Ms Mannion had chronic lower back pain and that the condition is permanent.[11]
[11]Exhibit 1, T Documents, T4, page 52, Medical certificate of Dr Keegan dated 21 June 2011; T6, page 58, Medical Certificate of Dr Keegan dated 29 September 2011.
In November 2011 Dr Chen, General Practitioner, reported that Ms Mannion had chronic lower back pain and that the condition is permanent.[12]
[12] Exhibit 1, T Documents, T7, page 59, Medical certificate of Dr Chen dated 8 November 2011.
In January 2012 Dr Keegan reported that Ms Mannion’s chronic lower back pain began in 2006 and that it was likely to affect her ability to function for more than 24 months although the effect of the condition on her ability to function within the next 2 years was uncertain. Dr Keegan reports that:[13]
(a)Ms Mannion’s chronic back pain developed as a result of repetitively lifting heavy weights at work and that she ceased working in June 2010 as a result;
(b)Ms Mannion has persistent pain in her lower back and sciatica in the left leg which has been episodic since 2006;
(c)the condition is treated with analgesics and physiotherapy and that future planned treatment was referral to intensive therapy;
(d)as a result of the condition Ms Mannion has a major problem with bending/twisting, lifting and prolonging static posture.
[13] Exhibit 1, T Documents, T8, pages 60 – 62, Medical report of Dr Keegan dated 30 January 2012.
A CT scan of Ms Mannion’s lumbosacral spine in February 2012 showed:[14]
(a)early degenerative changes at the L2/3,3/4,4/5 and L5/S1 levels;
(b)a left posterolateral broad-based protrusion of the disc which is protruding into the left lateral recess and causing an impression on the thecal sac at the L4/5 level; and
(c)a marked narrowing of the disc space at the L5/S1 level.
[14] Exhibit 1, T Documents, T9, page 68, CT scan dated 6 February 2012.
In 2013 Dr Keegan referred Ms Mannion to Dr Ragavan, a Rehabilitation Specialist. Dr Ragavan reported in March 2003 that:[15]
(a)the CT scan performed in February 2012 showed only very mild and clinically not significant facet joint osteoarthritis and a very mild stenosis from L4/S1;
(b)Ms Mannion “presents with a non-specific, non-radicular low back pain that does not warrant there is any significant intervention at this stage”;
(c)he asked Ms Mannion to trial Lyrica and to replace Mobic with Celebrex; and
(d)an MRI was planned.
[15] Exhibit 1, T Documents, T 12, page 80, Report of Dr Ragavan dated 21 March 2013.
A MRI of Ms Mannion’s lumbosacral spine in November 2013 showed “multilevel disc and facet joint degenerative change at L4 – 5 and L5 – S1”.[16]
[16] Exhibit 1, T Documents, T 13, page 81, MRI scan dated 11 November 2013.
In June 2014 Ms Mannion was seen by Dr Hsu, Orthopaedic Surgeon, who reported that “Ms Mannion does demonstrate significant discogenic symptoms with lumbar radiculopathy”. Dr Hsu recommended that Ms Mannion continue with non-operative treatment and that an injection could be tried if she experienced significant exacerbation.[17]
[17] Exhibit 1, T Documents, T 16, pages 84 – 87, Report of Dr Hsu dated 4 June 2015.
In October 2015 Dr Keegan provided a letter supporting Ms Mannion’s application for DSP noting that she had been suffering from chronic back pain, chronic pain syndrome and associated mood disorders.[18]
[18] Exhibit 1, T Documents, T 24, page 141, Letter from Dr Keegan dated 19 October 2015.
Mental Health Condition
In 2011 Dr Keegan reported that Ms Mannion had depression, and generalised anxiety disorder and that she was severely depressed but the condition was temporary.[19]
[19] Exhibit 1, T Documents, T4, page 52, Medical certificate of Dr Keegan dated 21 June 2011; T6, page 58, Medical certificate of Dr Keegan dated 29 September 2011.
In November 2011 Dr Chen reported that Ms Mannion had depression, and generalised anxiety disorder and that she was severely depressed but the condition was temporary.[20]
[20] Exhibit 1, T Documents, T7, page 59, Medical certificate of Dr Chen dated 8 November 2011.
In January 2012 Dr Keegan reported that Ms Mannion had major depression which had been brought on by chronic pain syndrome and interpersonal stresses and that the effect of the condition on her ability to function within the next 2 years is uncertain. Dr Keegan reported that:[21]
(a)Ms Mannion was treating the condition with medication and counselling;
(b)she was stable at that time on medication; and
(c)the condition was affecting Ms Mannion’s concentration, attention and memory.
[21] Exhibit 1, T Documents, T8, pages 63 – 64, Medical report of Dr Keegan dated 30 January 2012.
In 2013 Ms Mannion was seeing Ms Stacy Edwards, Psychologist, for therapy under a mental health care plan. Ms Edwards reports that:[22]
(a)she had had 7 sessions of therapy with Ms Mannion;
(b)Ms Mannion “symptoms were consistent with depression and anxiety associated with the complex grief reaction around the loss of her job approximately 2 ½ years ago”; and
(c)Ms Mannion is likely to need ongoing sessions and would benefit from coaching in self-care acceptance strategies.
[22] Exhibit 1, T Documents, T 14, page 82, Report of Ms Edwards dated 11 November 2013.
Dr Keegan prepared a mental health plan for Ms Mannion in 2014 pursuant to which the goal was to control her mental health symptoms and improve functioning by way of: [23]
·psychological management - counselling and review
·psychiatric review if needed
·pharmacological management.
[23] Exhibit 1, T Documents, T 15, page 83, Medical health plan dated 24 February 2014.
In September 2014 Ms Edwards reported that:[24]
(a)she had had 12 sessions of therapy with Ms Mannion;
(b)Ms Mannion had made some progress but that in a recent session Ms Mannion took offence at language used within the session and decided to cease psychological therapy with Ms Edwards.
[24] Exhibit 1, T Documents, T 17, page 88, Report of Ms Edwards dated 12 September 2014.
In October 2014 Ms Edwards provided a further report at Ms Mannion’s request. In that report Ms Edwards reports that Ms Mannion has been severely depressed and felt that at that stage it was unrealistic for Ms Mannion to work and urged Ms Mannion to seek an assessment for the disability support pension.[25]
[25] Exhibit 1, T Documents, T 18, pages 89 – 90, Report of Ms Edwards stamped received 8 October 2014.
In 2015 Ms Mannion participated in an initial assessment and 3 treatment sessions with Ms Kylie O’Brien, Clinical Psychologist. In Ms O’Brien’s opinion:[26]
“ she meets the criteria for a 307.9 unspecified communication disorder and a major depressive disorder as her symptoms most closely match the criteria set out for those disorders in the diagnostic and statistical manual of mental disorders (DSM-5)”.
[26] Exhibit 1, T Documents, T 21, page 125, Report of Ms O'Brien dated 26 October 2015.
The Diagnostic Statistic Manual of Mental Disorders provides that a 307.9 code means:
307.9 Unspecified communication disorder
Clinically significant symptoms of a communication disorder, but fails to meet the full criteria for any of the communication or neurodevelopmental disorders and the clinician does not specify the reason
Ms O’Brien reported that Ms Mannion had made minimal gains in treatment and that due to the communication disorder she would continue to experience clinically significant distress in social and occupational settings and that her current and future capacity for work was not favourable.[27]
[27] Exhibit 1, T Documents, T 21, page 125, Report of Ms O'Brien dated 26 October 2015.
In February 2016 Ms O’Brien reported that in her opinion Ms Mannion met “the criteria for a major depressive disorder as the symptoms most closely match the criteria set out for this disorder in the diagnostic and statistical manual of mental disorders (DSM-5). There also appears to be an onset of symptoms that suggest agoraphobia”.[28]
[28] Exhibit 1, T Documents, T 24, pages 138 – 139, Report of Ms O'Brien dated 8 February 2016.
In February 2016 Dr Prior, General Practitioner, reported that in her opinion Ms Mannion “suffers from a significant mental health disorder such that she is unable to undertake in part or full-time work. She suffers from major depression and unspecified communication disorder” and that “after consultation with psychologist Kylie O’Brien, we concluded that it is the communication disorder which carries the greater burden of the disease, and makes her essentially unemployable”.[29]
[29] Exhibit 1, T Documents, T 24, page 137, Report of Dr prior dated 29th every 2016.
On 28 June 2016 Ms Mannion was reviewed by Dr Hayes, Psychiatrist. Based on that assessment Dr Hayes reported that Ms Mannion “has a moderate function impairment in most activities involving her mental health functioning. These include simple task completion, engagement with authorities, time management, social and recreational activities and concentration. She has significant fluctuations in her mood and remains quite avoidant”.[30]
[30] Exhibit 1, T Documents, T 27, page 150, Report of Dr Hayes dated 28 June 2016.
Dr Hayes provided a further report in January 2017 and confirmed that as at 25 January 2017 he had seen Ms Mannion on 3 occasions. Dr Hayes reports that:[31]
(a)Ms Mannion “continues to be significantly suffering the symptoms of depression which are significantly entwined with her physical health issues, particularly orthopaedic problems and her pain”;
(b)Ms Mannion has reduced her antidepressant intake and manages the depression with a number of behavioral interventions, notably exercising as much as she can; and
(c)Ms Mannion is markedly avoidant and has great difficulty in social situations.
[31]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, Report of Dr Hayes dated 25 January 2017.
Hypermenorrhoea
In 2014 Ms Mannion was experiencing persistent hypermenorrhoea and had an ultrasound of her pelvis performed. The ultrasound showed us that Ms Mannion had a slightly bulky uterus with course myometrium and an endometrial thickness of 5 mm.[32]
[32] Exhibit 1, T Documents, T 19, page 91, Ultrasound Report dated 24 October 2014.
Conclusion on Impairment
The Secretary accepts that Ms Mannion suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[33]
[33] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, para 22.
Considering the above medical evidence, I find that during the Qualification Period Ms Mannion suffered a Spinal impairment and a Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the other conditions listed in Ms Mannion’s DSP application, there is simply a lack of corroborating medical evidence regarding the status of those conditions, the evidence of any recommended treatment or treatment having been undertaken and further corroborative evidence of the impact on function of those conditions had during the qualification period. As a result, those conditions cannot be considered for the purposes of this DSP application.
DO MS MANNION’S 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.[34] They are function based[35] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[36]
[34] Determination, s 4(2) and 5(2)(a).
[35] Determination, s 5(2)(b) and (c).
[36] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[37]
(a)Ms Mannion’s 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.
[37] Determination, see s 6(3).
Ms Mannion’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[38]
(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.
[38] 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[39] the following must be considered:[40]
(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.
[39] For the purposes of ss 6(4)(a) and (b) of the Determination.
[40] Determination, see s 6(5).
A condition is fully stabilised[41] if:[42]
(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[43]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[41] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[42] Determination, see s 6(6).
[43] 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.
Is Ms Mannion’s Spinal Condition permanent and likely to persist for at least 2 years?

The Secretary accepts that Ms Mannion’s Spinal Impairment was fully diagnosed fully treated and stabilised during the Qualification Period.[44]
[44] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, para 31.
Given the medical evidence referred to in paragraphs 12 to 19 above concerning this condition, the Tribunal finds that Ms Mannion’s Spinal Impairment is permanent for the purpose of this DSP application and an Impairment Rating can be assigned.
Using the Impairment Tables
I have to assess the level of impact of Ms Mannion’s Spinal Impairment against the descriptors[45] (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).[46]
[45] Determination, see ss 3 and 5(3).
[46] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an 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.[47]
[47] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[48]
(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.
[48] Determination, see s 7.
I must not take into account the following information in applying the Tables:[49]
(a)symptoms reported by Ms Mannion 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 Mannion’s local community.
[49] Determination, see s 8.
Which Tables are appropriate are determined by:[50]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[50] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[51]
[51] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[52]
[52] 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.[53]
[53] 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.[54]
[54] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
In June 2014 Dr Hsu reported that:[55]
(a)Ms Mannion’s back pain is rated 7/10 in severity and her leg pain 10/10 in severity;
(b)her pain is exacerbated with bending, lifting and prolonged sitting for more than one hour;
(c)Ms Mannion can rise from a seated position without any assistance; and
(d)Ms Mannion demonstrated a normal range of motion of the lumbar spine in forward flexion.
[55] Exhibit 1, T Documents, T 16, pages 84 – 87, report of Dr Hsu dated 4 June 2014.
The JCA reported in November 2015 that Ms Mannion said she:[56]
[56] Exhibit 1, T Documents, T 22, pages 126 – 133, JCA report dated 25 November 2015.
·can bend to knee level and straighten up again but that prolonged or repetitive bending aggravates her pain;
·can sit in a car for up to an hour;
·can hang clothes on the line;
·can bend forward to pick up a light object at knee height;
·does not require assistance to get up out of a chair;
·can do light gardening including weeding by sitting on a crate;
·can do the mowing for a short period;
·can swim up to 4 km; and
·can walk for an hour.
In August 2016 Ms Thomas, Physiotherapist, reported that Ms Mannion was unable to perform heavy lifting and could sit for up to 20 minutes before changing positions.[57]
[57] Exhibit 1, T Documents, T 28, pages 152 – 153, report of Ms Thomas dated 4 August 2016.
Mr Brett Charlier, Ms Mannion’s partner, provided a Statutory Declaration and written submissions setting out his observations of how Ms Mannion’s Spinal Impairment impacts on her ability to function which he reiterated at the hearing.[58] The evidence of Mr Charlier and Ms Mannion is that:
[58]Exhibit 5, Statutory Declaration of Brett Charlier dated 9 October 2017; Exhibit 4, submissions of Ms Mannion prepared by Mr Charlier dated 21 September 2017.
·Mr Charlier began living with Ms Mannion in June 2015;
·the impact on Ms Mannion’s ability to function as a result of her Spinal Impairment is severe because she is unable to remain seated for at least 10 minutes;
·“If Caroline was required to travel in a vehicle to attend interviews, appointments, etc, any extended period of sitting (i.e. longer than 5 minutes), entailed constant adjustments to seating position, weight shifting, stretching, regular relief stops, and additional pain medications , as well as massage to affected areas, both during and after the driving event. Upon returning home, recovery included periods of laying flat on her back, usually with a hot water bottle, for up to several hours, and if I was home, massage for up to 1 hour. This was the case for every single driving event, whether Caroline was driving herself, or seated as a passenger”;[59]
[59] Exhibit 5, Statutory Declaration of Brett Charlier dated 9 October 2017.
·Ms Mannion is in constant pain and experiences significant pain throughout any period of being seated;
·Ms Mannion can sit for a time but she is always in pain;
·anything that requires significant bending, or reaching Mr Charlier will do;
·they hang out washing together although Ms Mannion can hang out a small load of washing on her own;
·Ms Mannion can sweep on occasion when things are going well;
·the pain is there constantly so they make adjustments to minimise exacerbating the pain;
·Ms Mannion can mow for short periods;
·Mr Charlier gives her a daily massage just so she can function with pain;
·Ms Mannion can sit for 40 minutes in a car, for example when attending appointments with Ms O’Brien, although her seat needs to be regularly adjusted and she has to lie down afterwards because of the constant pain;
·Ms Mannion goes the pool approximately 3 times a week during the swimming season because it is great physical therapy for her back. Ms Mannion generally swims (freestyle or backstroke) 2.5 – 3 km each occasion;
·they walk the dogs together between 5 and 45 minutes approximately 2 to 3 times a week;
·the medication provides some relief for her pain - she has been on Lyrica since 2012;
·Ms Mannion’s Spinal Impairment has deteriorated.
Relevant Impairment Table and Impairment Rating
Table 4 which concerns spinal function is the relevant table. The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·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 purpose 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 spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a 5-point rating the corroborating evidence would need to show that Ms Mannion has some difficulty in:
(a)activities over head height (e.g. activities requiring her to look upwards); or
(b)bending to knee level and straightening up again without difficulty; or
(c)turning her trunk or moving her head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that Ms Mannion:
(a)is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(i)[she] is unable to sustain overhead activities (e.g. accessing items over head height); or
(ii)[she] has difficulty moving [her] head to look in all directions (e.g. turning [her] head to look over [her] shoulder); or
(iii)[she] is unable to bend forward to pick up a light object placed at knee height; or
(iv)[she] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20-point rating the corroborating evidence would need to show that Ms Mannion is unable to:
(a)perform any overhead activities; or
(b)turn [her] head, or bend [her] neck, without moving [her] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
The Secretary submits that an appropriate Impairment Rating for Ms Mannion’s Spinal Impairment is 5 points and relies on the findings of the JCA, that Ms Mannion had some difficulty bending to knee level and straightening up again without difficulty, satisfying descriptor (1)(b) of the 5-point rating.[60]
[60]See Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 August 2017, para 31; Exhibit 1, T Documents, T 22, page 130, JCA report dated 25 November 2015.
Ms Mannion submitted that her Spinal Impairment is having a severe functional impact on activities involving spinal function and warrants an Impairment Rating of 20 points and relies on the report of Dr Prior in July 2017 indicating that the level of functional impairment Ms Mannion experienced in the period 10 September 2015 and 10 December 2015 as a result of her spinal impairment was severe and that she should be awarded 20 points because she was unable to remain seated for more than 10 minutes and suffers from pain which may or may not be relieved with medication.[61]
[61]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, report of Dr prior dated 12 July 017.
Ms Mannion submits that the JCA report should not be given much weight because the issue of pain was not discussed and that because of her social anxiety and mental health conditions she was not able to properly communicate at that assessment. However, overall the JCA report is not inconsistent with the evidence provided by Ms Mannion and Mr Charlier.
The Secretary submits that Dr Prior’s report is not relevant because it was provided 18 months after the Qualification Period. The concern the Tribunal has with Dr Prior’s report is that, as Ms Mannion acknowledged, there has been clearly a significant deterioration in her spinal impairment since the Qualification Period, which is some 2 years ago. The Tribunal was informed at the hearing that Centrelink has recently granted Ms Mannion the DSP. However, for the purposes of this application the tribunal has to consider the status of the condition during the Qualification Period and cannot take into account the fact that there has been a subsequent deterioration. The Tribunal also notes that Dr Prior is not saying that Ms Mannion cannot sit for more than 10 minutes but that she is unable to remain seated for more than 10 minutes without suffering pain.
There is no corroborating medical evidence that Ms Mannion meets the criteria for a severe impairment.
The corroborating evidence demonstrates that during the Qualification Period Ms Mannion had some difficulties bending to knee level and straightening up again and that it is likely she would be unable to sustain overhead activities. This means that the Tribunal finds Ms Mannion spinal impairment falls between 2 impairment ratings, namely a 5-point rating and a 10-point rating. The Determination provides that if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[62]
[62] Determination, see s 11(1).
Therefore, the Tribunal assigns an Impairment Rating of 5 points for Ms Mannion’s Spinal Impairment.
In association with Ms Mannion’s Spinal Impairment, she has chronic pain and her current treatment for this Impairment is pain management. Section 6(9)(b) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(b)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the condition causing the chronic pain, the Spinal Impairment, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to that condition. I do not consider that the evidence justifies any increase in that Impairment Rating.
Is Ms Mannion’s Mental Health Condition Permanent and Likely to Persist for At Least 2 Years?
The Secretary accepts that Ms Mannion’s Mental Health Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[63]
[63] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 17 August 2017, para 37.
Considering the medical evidence outlined in paragraphs 20-33 above, the Tribunal finds that Ms Mannion’s Mental Health Impairment was fully diagnosed, fully treated and fully stabilised. Therefore, an Impairment Rating can be assigned for this condition.
Evidence Identifying the Loss of Function at the Qualification Date
In September 2015 Ms Mannion indicated in her DSP claim form that her disability did not make it difficult for her to care for herself and did not make it difficult for her to use public transport.[64]
[64] Exhibit 1, T Documents, T 20, page 117, Ms Mannion's claim for DSP dated 10 September 2015.
in June 2016 Dr Hayes reported that he felt Ms Mannion “has a moderate function impairment in most activities involving her mental health functioning. These include simple task completion, engagement with authorities, time management, social and recreational activities and concentration. She has significant fluctuations in her mood and remains quite avoidant.” Dr Hayes also reported that Ms Mannion said her depressive symptoms are better than they were in 2014 but that she requires considerable input from her partner to assist her day-to-day activities which is contributing to her subjective improved mood.[65]
[65] Exhibit 1, T Documents, T 27, page 150, report of Dr Hayes dated 28 June 2016.
The Tribunal takes note of the evidence regarding the activities that Ms Mannion can engage in as referred to in paragraphs 57 and 59 above and notes specifically that she enjoys swimming, gardening and walking the dogs.
The JCA reported in November 2015 that Ms Mannion said she:[66]
·had few social activities although she goes to the pool 3 times a week and has casual discourse with the patrons and may offer them advice regarding swimming technique;
·helps some neighbours with gardening at times;
·has some difficulties interacting with other people;
·has some difficulties of planning and organisation and that Mr Charlier tends to look after most things;
·uses a calendar to help with planning into the immediate future.
[66] Exhibit 1, T Documents, T 22, pages 126 – 133, JCA report dated 25 November 2015.
The evidence of Mr Charlier is that:[67]
[67]Exhibit 5, Statutory Declaration of Brett Charlier dated 9 October 2017; Exhibit 4, submissions of Ms Mannion prepared by Mr Charlier dated 21 September 2017.
·“When suffering frequent bouts of stress and/or anxiety, Caroline regularly spent several days of severe withdrawal at a time, sleeping between 15 to 20 hours per day, and engaging only for necessity in normal activities such as cleaning, cooking (missed several meals at a time), and personal hygiene (e.g. toileting), when unassisted. These bouts of stress and anxiety occurred weekly, and would mean even the most menial of tasks such as collecting mail from the post box were not performed for days or even weeks, without support”;
·Caroline avoided travel anywhere new without my presence
·Caroline avoided travel even to familiar places without my presence if at all possible
·For travel I was unable to do on her behalf, Caroline timed any travel that was absolutely necessary (e.g. doctor, employment provider appointments, filling medication prescriptions) to avoid busiest times where possible to avoid people
·Caroline avoided crowded places without my presence and if crowds were unavoidable, I was always required to be in visual range
·Often if attendance was not mandated (e.g. visit to pool for swimming), Caroline would sit outside for periods up to half an hour in her attempt to attend the activity, and would often just go home rather than attend, if I was not available to attend with her.
·Caroline avoided any social engagement as much as possible, limited in the main to mandatory interactions such as doctor appointments, chemist visits, late night shopping
·Caroline regularly requested me to make phone calls for appointments, to organise repairs, deal with tradespeople, do shopping, etc, to avoid any unnecessary contact with people
·Caroline often wanted me to attend appointments on her behalf without her being there
·Even with people she knew well and liked, a maximum of 30 minutes of social interaction is all Caroline could manage
·Caroline required my presence for any extended social engagement. If I was not available, Caroline would not attend
·Caroline required my support for interactions with service providers, doctors, etc
·Caroline often ignored unplanned visits to the home, even if the visitor was well known to her (Caroline would pretend not to be at home to avoid any interaction)
·Caroline's spinal impairment has had a significant bearing on her ability to concentrate on any task for more than 10 minutes, as well as reduced her ability to perform tasks in a timely manner.
·A planned shopping trip, bill-paying or daily exercise program would regularly be abandoned due to inability to face people at the supermarket, shops or swimming pool, meaning tasks assigned to her were often not completed.
·Any appointments lasting longer than 10 minutes (with her psychologist for example), would result in increased anxiety, withdrawal and increased frustration in having to attempt to focus on the discussions at hand, and with greater and greater difficulty.
·If lengthy documents were required to be read, Caroline was unable to completely read through said document in a single sitting, often having to return to the document a number of times to fully complete the process. The document would also have to be reread several times in this manner for her to fully comprehend the document.
·Caroline's had difficulty coping with situations involving stress, pressure or performance demands. Attending appointments of any sort provoke a desire to flee, or at least a great desire to finalise the appointment as quickly as possible, even to Caroline's detriment (e.g. providing a doctor or JCA interviewer less or minimal information just to finalise the interaction.
·Often Caroline had asked that I attend such appointments, not only to provide the physical support of my being present at the appointment but to also assist in providing relevant information to doctors, psychologists, etc. It should be noted here that at the time of her initial JCA appointment of 25 November 2015, she was unaware that she could have me present as a support person during that interview process.
·Also as noted earlier (Self Care and Independent Living), and later at Work/Training Capacity, when suffering frequent bouts of stress and/or anxiety, Caroline's activity levels were noticeably reduced, regularly spending several days of severe withdrawal at a time, sleeping between 15 to 20 hours per day
·Caroline's anxiety was amplified at times of mandated interactions (e.g. attendance at Centrelink appointments or Nortec job provider appointments, General Practitioner or physiotherapy appointments). The behaviours manifested commencing 2 to 3 days prior to any appointment, with Caroline becoming more and more withdrawn, becoming less and less involved in normal daily activities, rarely going outside of the home, and sleeping up to 15 to 20 hours per day. Very little conversation occurred between Caroline and myself, and any attempts to discuss anything of significance, especially the upcoming appointment, would result in terse words, and further withdrawal by Caroline. Once the appointment had been completed and Caroline arrived home, the behaviours of withdrawal and minimal participation continued for at least another 2 to 3 days, with periods of sleep continuing to be anywhere from 15 to 20 hours per day. Discussion regarding the appointment were very limited during this period, and only after this period of recovery were any significant discussions about the appointment able to take place between Caroline and myself.
·I would like to note here that the behaviours described above were not atypical for any of Caroline's social interactions, her interpersonal relationships, her self-care, or her capacity to work, rather the norm. Whether it was paying bills, shopping, visiting friends for dinner, going to the pool for a planned exercise session, or attending employment agency interviews, each and every interaction had a significant element of the abovementioned behaviours. These behaviours were modified somewhat if I was in attendance with Caroline, and whether other attendees were known, friendly, etc., however even in a friendly environment with myself in attendance, 30 minutes of engagement was the maximum comfortable limit for Caroline. This was the case during the qualification period, and remains the case today.

During cross-examination Mr Charlier said:
·Ms Mannion can cook and dress herself for the most part
·Ms Mannion rarely goes to the pool on her own
·he has never seen Ms Mannion interact with people at the pool
·Ms Mannion is not able to assess her own health status
·they enjoy watching television together, for example documentaries such as Four Corners and the news and that they watch every night for between 30 and 60 minutes. Sometimes Ms Mannion has to have a break to stretch because of her Spinal Impairment but they can watch usually up to 30 minutes of television before she needs to do that;
·Ms Mannion subscribes to a gardening magazine but can only read one article at a time
·Ms Mannion can engage in discussions but not for hours at a time
·Ms Manning can drive from 40 minutes by herself to get to a doctor’s appointment
·Ms Mannion is highly anxious particularly in social circumstances and can take 2 to 3 weeks to prepare for an evening with other people
·there are occasions during the week when Mr Charlier works that Ms Mannion is on her own although often his shifts are overnight so she is sleeping at that time.
In January 2017 Dr Hayes considered Table 5 of the Determination and reported as follows:[68]
·self-care independent living - mildly affected by her chronic depressive state
·behaviour planning and decision-making - mildly affected by her chronic depressive state
·capacity to concentrate and complete tasks - moderate to severe
·interpersonal relationships - severely impacted by her depression
·very limited social activity
·social and recreational activities, travel and work training capacity - all impacted at an extreme level
[68]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, Report of Dr Hayes dated 25 January 2017.
Ms O’Brien provided a further report in April 2017 and confirmed that she attended a review with Ms Mannion on 12 April 2017. In Ms O’Brien’s opinion “there have been no further changes are Ms Manning’s progress since her last assessment report dated 8 February 2016”. Ms O’Brien said she concurred with the findings of Dr Hayes in his January 2017 report. Considering Table 5 of the Determination Ms O’Brien reported as follows:[69]
·self-care and independent living - mild-to-moderate difficulty
·social and recreational activities - extreme difficulty
·interactions with others - extreme difficulty
·cognitive abilities such as concentrating and focusing - extreme difficulty
·cognitive abilities such as planning and organising - extreme difficulty
·workplace setting or training environment - extreme difficulty
[69]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, Report of Ms O'Brien dated 12 April 2017.
Ms O’Brien reiterated again in June 2017 that “there has been no change in Ms Mannion psychological functioning and prognosis as discussed” in her previous reports and that “Ms Mannion psychological impairment as discussed in these reports also includes the period between 10 September 2015 to 10 December 2015”.[70]
[70]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, Report of Ms O'Brien dated 7 June 2017.
In July 2017 Dr Prior provided a report indicating that the level of functional impairment Ms Mannion experienced in the period 10 September 2015 and 10 December 2015 as a result of her mental health impairment was severe to extreme in accordance with the Descriptors in Table 5. Dr Pryor says that when unassisted Ms Mannion:[71]
(a)tends to completely withdraw and neglects herself;
(b)is essentially unable to communicate with other people without her carer’s help
(c)is almost completely unable to concentrate/attend to tasks without that carer’s support
(d)is unable to plan or make decisions without carer’s support.
[71]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 August 2017, Report of Dr Prior dated 12 July 2017.
Relevant Impairment Table and Impairment Rating
The Secretary submits that an appropriate Impairment Rating for Ms Mannion’s mental health Impairment is 10 points.[72]
[72] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 August 2017, para 38.
Ms Mannion submitted that her Mental Health Impairment is having a severe functional impact on activities involving spinal function and warrants an Impairment Rating of 20 points.
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The Introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·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;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function. The Descriptors for an Impairment Rating of 10 points are:
1. The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
To assign an Impairment Rating of 20 points the evidence would need to show that Ms Mannion’s Mental Health Impairment is having a severe functional impact on activities involving mental health function. The Descriptors for an Impairment Rating of 20 points are:
2. The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
The Secretary submitted that when you consider Dr Hayes January 2017 report, only 3 of the 6 criteria that are set out in the Descriptors in Table 5, were assessed by him as severe and that to attract an impairment rating of 20 points Ms Mannion would have to have difficulty with most of the criteria. The Tribunal also notes that Ms O’Brien reported that she accepted the findings of Dr Hayes in his January 2017 report. Dr Hayes originally described Ms Mannion’s Mental Health Impairment as having a moderate impact in his June 2016 report. This report is closer in time to the Qualification Period. The Tribunal considers that it is probably very difficult for the treating practitioners to provide detailed assessments regarding somebody’s condition and its impact 12 to 18 months earlier. The situation as it is currently described by Ms Mannion’s treating practitioners is that Ms Mannion’s Mental Health Impairments are having a significant and severe impact on her daily life and in particular in relation to the criteria listed in the descriptors of Table 5. As referred to before Centrelink has now granted Ms Mannion DSP pursuant to a subsequent application to the application being considered by this Tribunal.
Considering the evidence available to the Tribunal, the Tribunal considers that it is unable to assign impairment rating of 20 points and finds that Ms Mannion’s Mental Health Impairment falls between a 10-point rating and a 20-point rating. The Determination provides that if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[73]
[73] Determination, see s 11(1).
Therefore, the Tribunal assigns an Impairment Rating of 10 points for Ms Mannion’s Mental Health Impairment.
DID MS MANNION HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Mannion’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period therefore it is unnecessary for me to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Ms Mannion’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period and as a result she did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 31 October 2017

Date of hearing: 19 October 2017

Applicant: By Phone

Advocate for the Respondent: Ms Claire Campbell

Solicitors for the Respondent: Department of Human Services

[2017] AATA 2026

31 October 2017

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Appeal

Date of hearing:	19 October 2017
Applicant:	By Phone
Advocate for the Respondent:	Ms Claire Campbell
Solicitors for the Respondent:	Department of Human Services