Moncrieff; Secretary, Department of Social Services and (Social services second review)
[2023] AATA 2323
•2 August 2023
Moncrieff; Secretary, Department of Social Services and (Social services second review) [2023] AATA 2323 (2 August 2023)
Division:GENERAL DIVISION
File Number: 2021/5598
Re:Secretary, Department of Social Services
APPLICANT
AndRoslyn Moncrieff
RESPONDENT
DECISION
Tribunal:Member D Mitchell
Date:2 August 2023
Place:Brisbane
The Tribunal sets aside the decision under review and in substitution decides that the Respondent did not meet the requirements to be granted the disability support pension in relation to the claim made on 13 December 2018.
..............................[SGD].............................
Member D Mitchell
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 severe impairment – whether continuing inability to work - decision under review set aside and substituted
Legislation
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secretary, Department of Social Services v Doherty [2022] FCA 1242
Secretary, Department of Social Services and Moncrieff [2022] AATA 4052
Summers and Secretary, Department of Social Security [2014] AATA 165
REASONS FOR DECISION
Member D Mitchell
2 August 2023
INTRODUCTION
On 13 December 2018, Ms Roslyn Moncrieff (the Respondent) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T17, pages 102-111, Claim for DSP.
As a result of a lengthy and what became complicated process, the Respondent received two different decisions of the Social Services and Child Support Division (SSCSD) of the Tribunal in relation to her eligibility for the DSP arising from that claim.[2]
[2] Exhibit 1, T Documents, T2, pages 4-14, Decision of the SSCSD dated 6 July 2021 and Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, Annexure B, Decision of the SSCSD dated 1 October 2020.
As a consequence, the Applicant (the Secretary of the Department of Social Services) sought a second-tier review by the General Division of the Tribunal of the most recent decision of the SSCSD.[3]
[3] Exhibit 1, T Documents, T1, pages 1-3, Application for Review.
Issues in relation to the Tribunal’s jurisdiction were raised. On 29 November 2022, the Tribunal decided that it has jurisdiction to undertake a de novo review in relation to the reviewable decision.[4] The background to the Respondent’s claim for the DSP and how her application has progressed through the review process are set out in the Tribunal’s decision in Secretary, Department of Social Services and Moncrieff [2022] AATA 4052 at paragraphs 6 to 30 and will not be reproduced in this decision.[5]
[4] Secretary, Department of Social Services and Moncrieff [2022] AATA 4052.
[5] The Tribunal further notes that the facts in this regard are not in dispute. See Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, pages 1-5, paragraphs 3-23 and Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 1, paragraph 2.
On 21 July 2023, a Hearing was held in relation to this matter by Microsoft Teams. The Respondent was represented by Mr Jackson Mallory of Townsville Community Law and gave evidence under affirmation by telephone. The Applicant was represented by
Mr Matthew Hawker of Sparke Helmore Lawyers.
The present issue before the Tribunal is whether the Respondent was eligible to receive the DSP in relation to the claim she made on 13 December 2018.
THE LAW
The relevant law in assessing a person’s qualification for the DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Respondent’s application.Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of the DSP. In the present case, the predominate qualification questions before the Tribunal are:
(a)does the Respondent have a physical, intellectual or psychiatric impairment;[6]
(b)do the Respondent’s impairments attract 20 points or more under the Impairment Tables;[7] and
(c)does the Respondent have a continuing inability to work?[8]
[6] Section 94(1)(a) of the Act.
[7] Section 94(1)(b) of the Act.
[8] Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[9]
[9] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[10] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[10] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[11]
[11] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[12]
(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; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[12] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[13]
[13] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[14] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[15]
[14] Section 6(2) of the Determination.
[15] Section 8(1) of the Determination.
In selecting the applicable Impairment Table, the Determination considers it necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[16]
[16] Section 10 of the Determination.
In assessing impairments where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[17] Where multiple 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.[18]
[17] Sections 10(3) and (4) of the Determination.
[18] Sections 10(5) and (6) of the Determination.
An impairment rating: can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[19]
[19] Section 11(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or, 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 POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[20]
[20] Section 94(3B) of the Act.
The requirements that must be met for a person to be considered to have actively participated in a POS[21] are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Active Participation Determination).
[21] Section 94(3C) of the Act.
The Active Participation Determination sets out that a person has actively participated in a POS if the person has complied with the requirements of the POS and participated in a POS during the relevant period,[22] provided the required information regarding the applicable POS[23] and one of the following applies:[24]
(a)the person participated in the POS for at least 18 months during the relevant period;[25] or
(b)the duration of the POS was less than 18 months and the person completed the entire program during the relevant period;[26] or
(c)the POS was terminated before the end of the relevant period because the person was unable, solely because of his or her impairment, to improve his or her capability to prepare for, find or maintain work through continued participation in the program;[27] or
(d)at the end of the relevant period, the person is participating in the POS and the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.[28]
[22] Section 7(1)(a) of the Active Participation Determination.
[23] Section 7(1)(c) and section 7(6) of the Active Participation Determination.
[24] Section 7(1)(b) of the Active Participation Determination.
[25] Section 7(2) of the Active Participation Determination.
[26] Section 7(3) of the Active Participation Determination.
[27] Section 7(4) of the Active Participation Determination.
[28] Section 7(5) of the Active Participation Determination.
The relevant period (POS Period) in relation to the requirements set out in the Active Participation Determination in relation to a person whose impairment is not a severe impairment is the 3 years prior to the day on which the claim for DSP is made or is taken to have been made by the person.[29]
[29] Section 5 of the Active Participation Determination.
The Administration Act sets out that qualification for the DSP and therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for the DSP is the date the person becomes qualified.[30]
[30] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
The Federal Court and the Tribunal have concluded that there is a requirement to look at, in this case, the Respondent’s circumstances as they were, and the evidence that was available at the time of the application for the DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered, however, only insofar as it is referrable to the Respondent’s condition during the Relevant Period.[31]
[31] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922,[34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 13 December 2018, the date the Respondent lodged her claim for DSP and ended 13 weeks later on 14 March 2019. The Tribunal is therefore limited to considering evidence as far as it relates to the Respondent’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Respondent had impairments during the Relevant Period and therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[32] The Respondent’s impairments for the purposes of the claim for the DSP in question consist of Chronic Obstructive Airways Disease (COAD), fibromyalgia and plantar fasciitis conditions.
[32] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 6, paragraph 38.
The parties agree that for the purposes of section 94(1)(b) of the Act, the Respondent’s conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period and attract at least 20 points under the Impairment Tables. As such the parties agree that during the Relevant Period, the Respondent met the requirements of section 94(1)(b) of the Act.[33]
[33] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, pages 9-12, paragraphs 51-57 and Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 2-6, paragraphs 7-42.
The parties agree that the functional impairments resulting from the Respondent’s conditions can be assessed under Tables 1, 2 and 3 of the Impairment Tables.[34]
[34] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, page 9, paragraph 51 and Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 2-6, paragraphs 7-42.
The point of contention lies around the assignment of impairment points under those tables, specifically in relation to Table 1 of the Impairment Tables. The Applicant contends that the Respondent’s COAD and fibromyalgia conditions caused impairments attracting 10 impairment points under Table 1 of the Impairment Tables.[35] The Respondent contends that her COAD, fibromyalgia and plantar fasciitis conditions caused impairments attracting 20 impairment points under Table 1 of the Impairment Tables.[36]
[35] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, pages 12-16, paragraph 58-74.
[36] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 2-6, paragraphs 10-39.
The parties agree that the Respondent’s fibromyalgia condition caused impairments attracting 5 impairment points under Table 2 of the Impairment Tables.[37]
[37] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, page 16, paragraph 75 and Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, page 6, paragraph 40.
The Applicant contended that the Respondent’s fibromyalgia and plantar fasciitis conditions caused impairments attracting 5 impairment points under Table 3 of the Impairment Tables.[38]
[38] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, page 17, paragraph 76.
The assignment of impairment points in this matter is particularly relevant as the Respondent conceded that she did not meet the program of support requirements at the Relevant Period. As such, if the Tribunal finds that the Respondent did not during the Relevant Period have a severe impairment, that is 20 impairment points under a single table, she will not meet the requirements of section 94(1)(c) of the Act and her
13 December 2018 claim for the DSP must fail.
Based on the extensive medical evidence before it and the contentions of the parties, the Tribunal finds that during the Relevant Period, the Respondent’s COAD, fibromyalgia and plantar fasciitis conditions were fully diagnosed, fully treated and fully stabilised and resulted in impairments that attract at least 20 points under the Impairment Tables.
Having considered the medical evidence before it, the Tribunal finds that in relation to the Relevant Period, the impairments resulting from the Respondent’s conditions attract a
5 point impairment rating under both Tables 2 and 3 of the Impairment Tables.
The remaining issues for the Tribunal to consider are:
1.
whether, within the Relevant Period, the Respondent’s conditions attracted
10 or 20 points under Table 1 of the Impairment Tables; and, if so
2.did the Respondent have a continuing inability to work?
TABLE 1 OF THE IMPAIRMENT TABLES
The Tribunal notes that Table 1 of the Impairment Tables deals with functions requiring physical exertion and stamina. Table 1 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[39]
[39] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.
10
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
In accordance with section 10(5) of the Determination it is appropriate that the functional impairment on the Respondent’s physical exertion and stamina resulting from her COAD and fibromyalgia conditions are considered together.
APPLICANT’S PRE-HEARING CONTENTIONS
The Applicant set out their contentions in a Statement of Issues, Facts & Contentions dated 25 January 2023.[40] In particular in relation to the assignment of an impairment rating under Table 1 of the Impairment Tables the Applicant provided the following:[41]
[40] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions.
[41] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, pages 10-11 and 13-16, paragraphs 53-54; 64 and 68-74.
53.The Secretary notes the following evidence regarding the functional impact of the Respondent’s COAD:
(a)In a medical certificate dated 13 June 2017, Dr Smithson (GP) listed COPD symptoms of ‘shortness of breath, wheezing with exertion, occasional cough, increased frequency of chest infections’ (T8, 83). Dr Smithson certified the Respondent could tolerate 20 hours per week of work, with pain limiting any extra hours.
(b) On 5 April 2018, pulmonary function tests found ‘Severe airflow obstruction. Gas trapping. Moderately impaired gas diffusion.’ (T13, 95).
(c)On 7 March 2019, Dr Smithson reported that the Respondent had been attempting to work 20 hours per week (T19, 114). She was struggling significantly with shortness of breath and wheeze due to her severe COPD. Dr Smithson stated the Respondent had now accepted that she would need to decrease her work hours to 12 hours per week for medical reasons.
(d)In a medical certificate dated 2 April 2019, Dr Smithson listed COAD symptoms of ‘persistent shortness of breath, cough, wheeze, difficulty with walking up stairs or long distances on the flat’ (T21, 119). Dr Smithson certified the Respondent could work up to 12 hours per week.
(e)On 9 May 2019, Dr Smithson reported the Respondent was attempting to work 20 hours per week and was struggling significantly with shortness of breath and wheeze, due to her severe COPD (T24, 130). Dr Smithson stated the Respondent had now accepted that she could only work significantly fewer hours for medical reasons. Dr Smithson stated the Respondent had severe COPD with shortness of breath on exertion, walking on the flat and especially trying to walk up stairs. She was unable to walk far outside the home, unable to change sheets on a bed without rest and unable to sweep/vacuum more than half a normal sized room without needing to stop and rest and catch her breath. Hanging up washing also caused shortness of breath.
(f)On 20 September 2019, Dr Smithson reported that the Respondent’s COAD was impacting her day to day function with severe dyspnoea walking up stairs and moderate dyspnoea walking on the flat requiring her to stop and rest after 100 metres (T25, 133). She was unable to maintain a normal walking pace after 50 metres. Daily activities around the house were significantly impacted. She was unable to make her bed without resting in between. Vacuuming and sweeping were also affected, needing to rest after half a room.
(g)At the hearing on 6 July 2021, the Respondent gave evidence to the AAT1 (T2, 7 at [17]-[20]) that she is always short of breath, her condition has changed very little since she applied for the pension in December 2018. She is unable to walk long distances and has to walk short distances very slowly. Her COAD also causes fatigue. At the date of application she was working 20 hours per week at Woolworths as a stock filler. On 11 March 2019, she reduced her hours to 12 hours per week. She lives alone but is given considerable assistance by her daughter who lives 5 minutes away. Her daughter does most of her shopping, cleans her house and makes her bed. If she goes to the supermarket with her daughter, her daughter collects and packs all the groceries. She has to lean on the trolley to walk around the supermarket. She generally does her own washing but puts her clothes straight from the washing machine into the dryer. She no longer hangs them on the line.
54.The Secretary notes the following evidence regarding the functional impact of the Respondent’s fibromyalgia:
(a)In a medical certificate dated 13 June 2017, Dr Smithson listed fibromyalgia symptoms of ‘severe whole body pain, muscle stiffness, fatigue, pain with movement, impaired sleep, decreased exercise tolerance’ (T8, 83).
(b)In a medical certificate dated 2 April 2019, Dr Smithson listed fibromyalgia symptoms of ‘whole body pain, muscle pain with activity, easy fatigability, increased time to recover after activity, insomnia’ (T21, 119).
(c)On 9 May 2019, Dr Smithson reported that the Respondent’s fibromyalgia resulted in a mild functional impact on using hands and arms, that is, she was unable to pick up objects heavier than a 2 litre carton, unable to carry a full shopping bag of groceries, she was fumbling with small objects and having trouble doing up buttons (T24, 130). She was unable to reach out or up to pick up heavy objects. Dr Smithson also stated that, due to the Respondent’s fibromyalgia, she experienced neck and whole back pain. She had difficulty looking up or down and trouble bending to knee level and straightening again.
(d)On 20 September 2019, Dr Smithson reported that the Respondent had longstanding bilateral foot pain, initially diagnosed as plantar fasciitis, but likely to be contributed to by fibromyalgia also (T25, 133).
(e)At the hearing on 6 July 2021, the Respondent gave evidence to the AAT1 (T2, 8-9 at [33]-[34]) that fibromyalgia causes pain all over her body, worse in her neck and across her shoulder blades. She can also get pain in the arms, hips and elsewhere in her body. Fatigue is also a major symptom.
…
64.The Secretary contends that the Respondent did not meet descriptor point (1)(a)(i) of the 20 point rating as found by the AAT1. It cannot be said that the Respondent was unable to walk around a shopping centre or supermarket without assistance from another person during the qualification period. The Secretary relies on the following:
(a)The Respondent gave evidence to the AAT1 (T2, 7 at [18]), which is corroborated by the records obtained from Woolworths (ST2), that at the date of her DSP claim she was working 20 hours per week at Woolworths as a stock filler. She reduced her hours to 12 hours per week on 11 March 2019 (i.e. a few day before the end of the qualification period). The task description for ‘Night Fill/Day Fill’ at Woolworths is as follows (ST2, 102): ‘Night fill duties are completed to re-stock shelving within the grocce4ries aspect of the store. Pallets are unpacked from dock room and boxes are placed on trolleys. These boxes are then distributed through the appropriate aisles of the store. Staff members are then required to unpack boxes and place items on shelving.’ The Respondent gave evidence to the AAT1 that she was working in the health and beauty section and her co-workers assisted her by moving anything heavy. There is no evidence that the Respondent required the assistance of another person to mobilise around the supermarket while at work.
(b)The Respondent gave evidence to the AAT1 that her daughter did most (i.e. not all) of her shopping, and that if she went to the supermarket with her daughter, her daughter collected and packed all the groceries and she had to lean on the trolley to walk around the supermarket. This is consistent with her self-reporting to Dr Forbes that she was able to perform grocery and personal shopping, but only if assisted by her daughter (Attachment C). However, on 9 May 2019 (i.e. nearly two months after the end of the qualification period), Dr Smithson reported that the Respondent had difficulty walking around a shopping centre, needing to lean on the shopping trolley and to rest in between shops (T24, 130).
(c) The evidence of Dr Forbes in his report dated 16 March 2022 was that the Respondent was able to walk around a supermarket without assistance (Annexure C).
…
68.The Secretary accepts that the Respondent had difficulty walking around a shopping centre or supermarket without assistance from another person, however contends that the evidence does not establish that she was unable to do this, nor that performing this activity would cause severe pain or fatigue or severe subsequent symptoms. It is apparent that the Respondent was able to walk around the supermarket without assistance in the course of her employment at Woolworths, between 12 and 15 hours per week during the qualification period.
69.In relation to descriptor point (1)(a)(ii), the Secretary contends it cannot be said that the Respondent was unable to walk from the carpark into a shopping centre or supermarket without assistance from another person, in circumstances where she would have walked from the carpark to Woolworths, in order to undertake her employment. The evidence before the Tribunal is that the Respondent could drive independently without limitations (Annexure C). There is no evidence to suggest that that the Respondent required the assistance of another person to walk between the carpark and her workplace.
70.In relation to descriptor point (1)(a)(iii), there is no corroborating evidence that the Respondent was unable to use public transport without assistance from another person. It may have been the case that she was not required to use public transport as she was independent with driving, however the JCA reports dated 15 April 2019 (T22, 122), 13 May 2020 (T27, 140) and 27 October 2020 (T29, 152) all recommended that the Respondent was not prevented from using public transport without substantial assistance.
71.In relation to descriptor point (1)(a)(iv), it cannot be said that the Respondent was unable to perform light day to day household activities. The Secretary relies on the following:
(a)The Respondent gave evidence to the AAT1 that she lived alone but was given considerable assistance by her daughter who lived five minutes away and cleaned her house and made her bed (T2, 7 at [20]). She did her own washing by putting her clothes straight from the washing machine into the dryer and no longer hung them on the line.
(b)This is inconsistent with the evidence of Dr Smithson on 9 May 2019 (i.e. nearly two months after the end of the qualification period) that the Respondent was unable to change sheets on a bed without rest, unable to sweep/vacuum more than half a normal sized room without needing to stop and rest and catch her breath, and hanging up washing caused shortness of breath (T24, 130).
(c)The Respondent reported to Dr Forbes (Annexure C) that she was able to self-perform housework, washing dishes and loading the washing machine without limitations, but these activities caused discomfort. She did a ‘bit of spot cleaning here and there’. She was able to self-perform preparing meals without limitations. She was unable to perform vacuuming, mopping, hanging out the washing, mowing and gardening. She was able to perform her hobby of sewing (using a sewing machine).
(d)The evidence of Dr Forbes in his report dated 16 March 2022 was that the Respondent was able to perform light day to day household activities (Annexure C).
72.Again, the Secretary accepts that the Respondent had difficulty performing light day to day household activities, however contends that the evidence does not establish that she was unable to do this, nor that performing these activities would cause severe pain or fatigue or severe subsequent symptoms.
73.In relation to descriptor point (1)(b), it cannot be said that the Respondent had or would be likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours. The Secretary relies on the following:
(a)The Respondent gave evidence to the AAT1 (T2, 7 at [18]), which is corroborated by the records obtained from Woolworths (ST2), that at the date of her DSP claim she was working 20 hours per week at Woolworths as a stock filler. On 11 March 2019, she reduced her hours to 12 hours per week, spread over 3 separated days.
(b)The tasks for Night Fill at Woolworths are described at paragraph 64(a) above. The Respondent was employed in a role with an overall physical demand rating of ‘light to medium’ (ST2, 102). There is no evidence of her attempting a trial of sedentary employment.
(c)The evidence of Dr Forbes dated 29 March 2022 was that that the Respondent would have capacity to perform work for more than 15 hours a week in a sedentary role, where her physical impairments would not have such an impact on her capacity for work (Annexure D).
(d)Even if it was the case that the Respondent was taking frequent breaks during her shifts at Woolworths, there is no evidence that she would be have been unable to work a continuous shift of at least three hours in a sedentary role.
74.The Secretary contends that the Respondent’s COAD and fibromyalgia caused impairments attracting 10 points under Table 1 during the qualification period. The Secretary relies on the evidence set out above as well as the report of Dr Forbes dated 16 March 2022 (Annexure C). Dr Forbes’ opinion was that the Respondent’s presentation was consistent with a moderate level of functional impact under Table 1.
RESPONDENT’S PRE-HEARING CONTENTIONS
The Respondent set out her contentions in a Statement of Issues, Facts and Contentions received on 24 February 2023.[42] In particular in relation to the assignment of an impairment rating under Table 1 of the Impairment Tables, the Respondent provided the following:[43]
[42] Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions.
[43]11.The Respondent has given evidence that she began to develop symptoms of COAD in about 2015. After being referred to Dr Minell at Townsville Hospital she was diagnosed with severe COAD (T2, 7) which was confirmed after pulmonary function tests on 5 April 2018 (T13, 95).
12.The functional impact on the Respondent is variously described as:
a. Severe airflow obstruction. Gas trapping. Moderately impaired gas diffusion
(T13, 95)b. shortness of breath, wheezing with exertion, occasional cough, increased frequency of chest infections (T8, 83 and T24, 130)
13.The Respondent gave evidence that her fibromyalgia symptoms developed in 2008 and she was diagnosed in 2011 which was confirmed by a rheumatologist on 7 September 2016 (T5, 78).
14.The Respondent gave evidence that pain and fatigue is a major symptom of her Fibromyalgia. This was corroborated by medical certificates from the Respondent’s treating doctor, Dr Smithson, whose reports list the symptoms of whole body pain, fatigue, pain with movement (T8, 83 and T21, 119).
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18.This requires the Respondent to satisfy at least one of (1)(a)(i), (1)(a)(ii), (1)(a)(iii) or (1)(a)(iv) as well as (1)(b).
19.The Guide further states at 3.6.3.05:
When assessing whether a person can perform a certain activity described in the descriptor, the descriptor will only apply if the person can do that activity on a repetitive or habitual basis and not only once or rarely.
20. What qualifies as ‘regular or habitual’ was considered by the Tribunal in Caine and Secretary, Department of Social Services (Social services second review) [2020] AATA 2089 at [51]:
The question is whether she can be considered to be able to perform the specified tasks on a ‘regular or habitual basis’ or ‘once or rarely’. The term ‘regular and habitual’ implies a degree of frequency and ease.
21.The Secretary contends that, when taken in consideration with the Guidelines to Table 1 in the Guide at 3.6.3.10, the Respondent having difficulty with any of the above descriptors does not mean that she was unable to do so for the purposes of the Table.
22.The Secretary then sets out in paragraphs 68 to 72, their contentions that, although they accept the Respondent had difficulty with many of the descriptors, the Respondent was not unable to complete any of the descriptors.
23.With respect, the Respondent submits that this is a misapplication of the Guide. The focus of the legislation and policy is not on whether the Respondent is entirely unable to perform the activities set out above but instead whether she is unable to perform them on a ‘repetitive or habitual basis’.
24.In relation to descriptor point (1)(a)(i) the AAT1 found that the Respondent would be unable to walk around a shopping centre or supermarket without personal assistance on a repetitive basis.
25.The Secretary relies on the evidence that the Respondent was working 20 hours a week at Woolworths during the qualification period. With respect the Respondent contends that her role at Woolworths did not require continued mobilisation around the supermarket. Due to her time working with Woolworths her employer was amenable to making adjustments around her role such that:
a. She was only required to work on the health and beauty aisle with lighter objects.
b. She worked with a co-worker who would assist with higher shelves and heavy items.
c. The pallets were unpacked and wheeled to her aisle by other employees, so she was not required to mobilise around the shopping centre.
26.Even with modifications activity could not be maintained on a repetitive basis as she was required to take extensive leave to maintain this role and recover from her shifts and was required to reduce her hours to 12 hours a week on 11 March 2019 due to the severity of her symptoms. Dr Forbes also reports that the Respondent was taking around 20 Panadeine forte a month, usually after work (Annexure C of the Secretary’s Statement) while Dr Smithson reports she was at times ’going home from work shifts on 8 panadeine forte a day’ (T11, 91).
27.Further, evidence was provided by the Respondent that her daughter did most of her grocery shopping, this demonstrates that the Respondent was unable to complete this activity habitually without assistance.
28.The Respondent contends that it was open to the AAT1 to find on the medical evidence that she satisfied descriptor point (1)(a()i).
29.In relation to descriptor point (1)(a)(iv) the Respondent contends that the sum of medical evidence corroborates that she was unable to habitually complete most light day to day household activities such as those contemplated by the Impairment Table. The respondent contends she was unable to complete any vacuuming, mopping, hanging out the washing or gardening (Annexure C of the Secretary’s Statement, T24, 130)
30.In relation to preparing meals, the Respondent accepts that she was able to self-preform certain tasks for small meals however contends that most of her food is comprised of frozen meals that involves minimal preparations.
31.The Respondent accepts that she could place loads of washing into a washing machine and then into a dryer however contends this requires a lower level of exertion than the examples provided for by Table 1 and she would be unable to fold and put away laundry.
32.In contending that the Respondent’s impairment should attract 10 points under the Impairment Tables, the Secretary relies heavily on the medical evidence of Dr Forbes.
33.The value of reports obtained after the qualification period has been considered by the Tribunal in Re Fanning and Secretary, Department of Social Services [2014] AATA 447 where it was found that:
Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
34.This approach was approved by the Federal Court in Gallacher and Secretary, Department of Social Services [2015] FCA 1123.
35.While the Respondent accepts that the reports of Dr Forbes are useful insofar as they deal with the doctor’s opinion of the Respondents’ impairments during the qualification period, we note that the report was based off a single assessment without a physical examination, conducted on 1 March 2022, over 2 years past the qualification period.
36.The Respondent contends that, given the long-standing treatment of the Respondent and the contemporaneous nature of the reports, the evidence provided by Dr Smithson is a more persuasive account of her functional impairment during the qualification period.
37.In relation to descriptor point 1(b) the Respondent contends she would have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
38.As set out above, when considered in the context of the modified duties the Respondent undertook in her employment, the overall physical demand of the role would be light and it became a mostly stationary role. Even given this, her impairment resulted in her being unable to continue for over two hours without a break. The Respondent’s evidence is that in a 5 hour shift she would need to take at least an additional two (2) breaks on top of her 15-minute scheduled break.
39.The Respondent contends that she satisfied descriptor point (1)(a)(iv) and (1)(b) during the qualification period and therefore agrees with the finding of the AAT that her impairments attracted 20 points under table 1.
RESPONDENT’S EVIDENCE AT THE HEARING
At the Hearing the Respondent told the Tribunal that:
·She commenced employment with Woolworths in 2006 as a night fill team member.
·She was in that role when she applied for the DSP.
·The symptoms of her conditions started to affect her employment a couple of years before she made an application for the DSP but she struggled through. She could not remember having any symptoms in 2006, she first remembers asking questions about her symptoms in 2015.
·Before 2015 she did not have any adjustments in place in relation to her job.
·Woolworths did not make any changes she had to make the changes so she could do her hob. She did lighter work so she did not have to exert herself and her team allowed her to move to the lighter workload – she worked in the lighter aisle whereas usually the work was mixed and everyone was meant to work in the heavy and light aisles.
·By 2018 she worked only in the lighter area and had someone she worked with to help her, she got her work done but had to have regular breaks that others did not have.
·At that time her employer did not ask her to work in heavy aisles because she could not manage it.
On cross-examination, the Respondent:
·Said that she was employed at the same Woolworths store for the whole of her employment with the company.
·Said the Woolworth store was in a shopping centre.
·Said she started at Woolworths in 2006 as a casual so she worked any shifts she could get, sometimes up to 30 hours a week. Within 12 months she was put on a 25 hour a week permanent part time contract and also worked extra shifts when they were available. She dropped back to 20 hours a week around 2015 because she could not sustain 25 hours and extra shifts due to her symptoms.
·Said that over time her shifts changed from starting at 9 pm, to 8 pm to 7 pm. That by December 2018 she started at 7 pm or 8 pm and worked five-hour shifts. She drove herself to work, parked in the shopping centre carpark, caught the lift up and walked into the store by the front entrance, walked out to the staff room and then started work. When she finished work, it was late and she had to go out the staff exit which meant she had to walk upstairs to get back to her car.
·Said that at the start of her shift they would have to go to the back dock where the load comes in, however when she was getting worse she did not go to those meetings as she knew what to do and that saved her having to do that walking. The load is broken down however by then she just had people bring her trolleys with the stock in it that she needed to refill the shelves and she was in the light end of the store, in the Health and Beauty aisle.
·Said she would do the one aisle, which is two sides with gaps that had ends in the middle. She did not have to move big distances.
·Said she had a 15 minute break halfway through her shift and she could take breaks when she needed them, when she was tired. She also had a plastic stool that she could sit on or she could go to the staff room and have a drink and a short break as she needed.
·Confirmed that in 2015 she had started cycling, water aerobics and went on her first cruise which was relaxing. Her daughter took her on a seven day cruise around the South Pacific Islands. At that time she was climbing two flights of stairs at work to get out the staff exit and was gardening. Had started using a walking machine as she was trying to get fitter because she was starting to get shortness of breath, but she could not maintain it and could not push through and that is when they found out about her conditions.
·Confirmed that in 2016 she had a Fitbit and aimed for 10,000 steps each day and that she lived in a highset rental, was a carer for her Mum, worked 20 hours a week as a night filler at Woolworths, her physical function was reviewed by Dr Bryant and she remained independent with limitations and had a multi-discipline exercise program.
·Confirmed that the GP note on 7 April 2017 that referred to her being in pain and walked a lot at work referred to the amount of walking she did being a lot because of the pain in her feet.
·Agreed that her job as a night filler at Woolworths was a moderate intensity job not a sedentary job.
·Confirmed that by 2018 she was living by herself.
·Said that when she first started working at Woolworths she also worked at a café during the day and gave that job up around May 2017. She was working varied hours in the café, mainly lunch time shifts of three to four hours, sometimes five days a week but other times just a couple of days a week. She gave up her day job because she could no longer do both, then she could rest during the day.
·Said that she did both jobs between 2006 and 2017 to earn money and worked whatever she was offered.
·When referred to a GP note that mentioned she attended with her 8 month old grandson in May 2018, said that at that time she thinks she was looking after him one day a week.
·Said that by August 2018 she was looking after her grandson for three or four hours, three days a week, when his mum went to work.
·Confirmed that she was still working at Woolworths of an evening when she was also looking after her grandson.
·Agreed that looking after a toddler is physically demanding and that she entertained him by being in the garden or inside playing with toys.
·Said that at that time she realised that she needed to work less as she had to push through and was always tired.
·Said that when she made her claim for the DSP in December 2018 she was still looking after her grandson and was working four nights a week, 20 hours in total at Woolworths.
·
Said she reduced her hours at work to 12 hours a week after the week ending
10 March 2019 because she was told by Centrelink that she needed to work less than 15 hours a week in order to be able to get the DSP.
·Said she had talked to her GP prior to March 2019 about reducing her hours as she could not do everything, but financially she had to push through.
·Said she told Centrelink she was struggling to do 20 hours a week and they said that unless he reduced her hours her application for the DSP would not progress.
·Said she was still looking after her grandson at the time but could not remember how many days.
·When asked about a GP note recorded on 7 March 2019 that said, ‘has to be less than 15 hours/week to access centrelink benefit, work has agreed to cut down to 12 hours/week, hardest is climbing stairs at night’,[44] said that she was struggling with 20 hours but needed to work financially. She agreed that the stairs at the end of her shifts was the hardest thing.
·When asked if what she was doing through the day and then working at night was too much for her, said that it was a medical issue and that anyone that had her condition would have needed to reduce hours, she had used all of her sick pay but struggled through so that she could continue to pay her bills.
·Said she accepts that the records provided by Woolworths were correct.
·Said she recalled having an appointment with Dr Forbes in 2022 and confirmed that the things he reported that she had told him she could do during the Relevant Period were accurate.
·Said she likes to sew quilts and things for her grandchildren and could sit at her sewing machine for about an hour and a half, it is something she enjoys but she feels exhausted after she finishes.
·Said that in December 2018 she still had plants in her garden, however she had already slowly moved them into pots as that made them easier to look after. She enjoys watering and being in her garden. Her daughter helps her when she needs her to.
·Said that references to her gasping are to when she over exerts herself, she did not know she was doing it until she lost her breath and has problems getting it back again, but it is too late once she had done something.
[44] Exhibit 2, Supplementary T Documents, ST1, page 54, Material from Health & Wellbeing North Ward, Consult notes.
MEDICAL EVIDENCE OF DR NATALIA SMITHSON AND DR ANGUS FORBES
Evidence of Dr Natalia Smithson
Dr Natalia Smithson has been the Respondent’s treating general practitioner since
August 2014.[45] There are a number of reports and certificates completed by Dr Smithson before the Tribunal as well as records from the Health & Wellbeing North Ward medical practice.[46]
[45] Exhibit 1, T Documents, T8, page 83, Medical Certificate of Dr Smithson and ST1, pages 20-60, Bundle of material from Health & Wellbeing North Ward, consult notes.
[46] Exhibit 2, Supplementary T Documents, ST1, pages 1-60, Bundle of material from Health & Wellbeing North Ward.
The Tribunal’s attention was specifically drawn to the report of Dr Smithson dated
9 May 2019 which provided:[47]
[The Respondent] was attempting to work 20 hours/week and was struggling significantly with shortness of breath and wheeze, due to her severe COPD. [The Respondent] now has accepted that she can only work significantly fewer hours for medical reasons.
She has severe COPD, with shortness of breath on exertion, walking on the flat and specially trying to walk upstairs, despite maximum medical therapy. She has fatigue and frequent shortness of breath, eg she is unable to walk far outside the home, is unable to change sheets on a bed without rest and is unable to sweep/vacuum more than ½ a normal sized room without needing to stop and rest and catch her breath. Hanging up washing also causes shortness of breath.
[The Respondent] has chronic pain, fibromyalgia, so that she has mild functional impact on using hand and arms, that is unable to pick up objects heavier than a 2 litre carton, she is unable to carry a full shopping bag of groceries, she is fumbling with small objects and having trouble doing up buttons. [The Respondent] is unable to reach out or up to pick up heavy objects.
Her above conditions and plantar fasciitis (pain in both feet) impact on her lower limb function. She has difficulty walking outside the house to facilities and walking around a shopping centre, needing to lean on the shopping trolley and to rest in between shops. She has significant difficulty climbing stairs even less than one flight and less problems with going downstairs but has instability due to her foot pain. [The Respondent] is required to stand at work but gets significant pain after 10 minutes and needs to manoeuvre or rest.
…
[47] Exhibit 1, T Documents, T24, page 130, Report of Dr Smithson.
At the Hearing, Dr Smithson gave evidence under affirmation and appeared by MS Teams.
In response to questions put to her by the Respondent, Dr Smithson told the Tribunal:
·When referred to her letter of 9 May 2019 and asked whether her description of the Respondent’s symptoms was also an assessment applicable to December 2018 to March 2019, that the Respondent’s symptoms had not declined that much so the assessment related to the period six to twelve months earlier.
·That in her opinion, based on her notes, that the Respondent was properly able to walk about 100 metres in March 2019.
On cross-examination, Dr Smithson:
·Confirmed that she was the Respondent’s treating general practitioner and that she was giving evidence in that regard, not as an independent medical examiner (IME).
·Agreed that the role of a treating practitioner was to seek a history from their patient, treat their symptoms and advocate for them.
·Agreed that an IME has access to all reports and records and forms their opinion on a wholistic basis.
·When put to her that she on the other hand forms her opinion based on the history the patient tells her, said that she forms her opinions based on patient history, results from medical investigations, observations and examinations.
·Agreed that there are specialists that deal with work place functionality, specifically occupational physicians.
·Agreed that occupational medicine focuses on function and health in the workplace.
·Agreed that an occupational physician assesses workplace capacity.
·Said that she did not believe she had seen the reports of Dr Forbes.
·When put to her that Dr Forbes provided an opinion that during the Relevant Period the Respondent had capacity to work more than 15 hours in a sedentary role, where her physical impairments would not have a significant impact on her work and asked whether she thought that was a fair assessment, said that it was. Said that if there was a chance for a sedentary role then it was possible the Respondent would be fit to work 20 hours a week, however it would also need to fit with her training and education.
·When asked if she was aware that during the Relevant Period and prior to reducing her work hours to 12 hours per week that the Respondent was undertaking unpaid carer duties three days a week in relation to her grandson, said she was aware of the Respondent’s childcare duties and that they were becoming difficult for her.
Evidence of Dr Angus Forbes
The Applicant sought an independent medical examination of the Respondent by
Dr Angus Forbes, occupational & environmental physician.[48]
[48] Exhibit 6, Applicant’s briefing letter to Dr Forbes.
Dr Forbes examined the Respondent on 1 March 2022 and provided a report dated
16 March 2022.[49] Dr Forbes also provided an Addendum Report dated 29 March 2022[50] in response to clarification sought by the Applicant.[51]
[49] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, Attachment C, Report of Dr Forbes, pages 43-61.
[50][51] Exhibit 7, Applicant’s briefing email to Dr Forbes.
In relation to the assessment of the Respondent’s functional impairments under Table 1 of the Impairment Tables during the Relevant Period, Dr Forbes opined:[52]
Her presentation is consistent with “There is a moderate functional impact on activities requiring physical exertion or stamina.” As such, the appropriate rating is 10 points.
…
She is able to walk around a supermarket without assistance and perform light day to day household activities, and as such does not meet the criteria for “severe functional impact”. She would be able to “perform work-related tasks of a clerical, sedentary or stationary nature” and as such meets the criteria for “moderate functional impact”.
…
[52] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, Attachment C, Report of Dr Forbes, page 55.
In relation to the Respondent’s capacity for work, specifically whether the impairments resulting from her conditions during the Relevant Period would have prevented her from undertaking work of at least 15 hours per week within two years of the Relevant Period or undertaking a training activity that would assist her to do so, Dr Forbes opined:[53]
…
In my opinion it is surprising that she was reportedly managing 20 hours a week in her role as a night filler in a supermarket. Her report of taking sick leave and having the support of other staff to only perform the lighter tasks is consistent with her medical history. In my opinion she would not have had the capacity to perform the inherent and essential requirements of her role as laid out in your attached documentation. With a sympathetic employer she was able to manage 20 hours a week until she reduced her hours.
I note your further comments with regards her capacity to perform any work.
In my opinion she would have the capacity to perform work for more than 15 hours a week in a sedentary role, where her physical impairments would not have such a significant impact on her capacity for work. I note that she does not have recent experience in such roles.
[53]At the Hearing, Dr Forbes gave evidence under affirmation and appeared by MS Teams.
In response to questions put to him by the Applicant, Dr Forbes:
·Confirmed his full name, that he was an occupational physician and had assessed the Respondent on 1 March 2022 and that she was unaccompanied at that assessment.
·
Confirmed that he continued to hold the opinions expressed in his reports dated
16 March 2022 and 29 March 2022.
·Confirmed that in providing responses to the questions asked of him in the briefing letters that he was referring to the Respondent’s situation during the Relevant Period.
·Confirmed that he considered the material provided to him as set out in his reports in formulating his opinion and writing his reports.
On cross-examination, Dr Forbes:
·Said that he had read and considered Dr Smithson’s report dated 9 May 2019 and still continues to hold the view that the Respondent’s functional impairment under Table 1 of the Impairment Tables was moderate.
·When asked what he takes ‘walk around a supermarket to mean’, said it means walking around a shopping centre not necessarily carrying shopping, it is not a daily function for everyone and the Respondent was working in a supermarket.
·When asked if it could be defined by distance or time, said depends on how much shopping is to be done, but 10 to 20 minutes.
·When asked if he was aware of how far the Respondent could walk during the Relevant Period, said not specifically however enough to work in that environment.
·When asked if his response in relation to that indicator in the Impairment Table relied on the fact that the Respondent was working in a supermarket, said significantly yes.
·Said that the distance someone could walk would also depend on the gap between rests.
·When asked if someone was limited to being able to walk 100 metres if he would consider they could walk around a shopping centre, said yes if they rest and lean on a trolley they can do it. Said that no one walks around a shopping centre or supermarket without stopping, otherwise you cannot buy anything.
·When put to him that paragraph 71 of his report means that the Respondent did not have capacity to work, said that his report does not say she does not have capacity as she was still doing it.
·Said it was clear that the Respondent could clearly walk from a carpark unassisted and could perform light day to day activities as she was loading the washing machine, making meals and washing dishes.
·Said that in assessing whether the Respondent met the 20 point descriptors on Table 1 of the Impairment Tables he was looking at it from a perspective that the Respondent would have to meet all (1)(a) descriptors and the (1)(b) descriptor.
·When asked if he would consider work at a sewing machine to be a sedentary role, said it would depend on the job and kinds of material, whether it was industrial or domestic.
·When asked if someone was not able to work on a domestic sewing machine for a continuous period of 3 hours, if that would mean they could not undertake sedentary work for that period of time, said it depends on why they could not undertake the work. Said that most people in that kind of role will have to take postural breaks and change tasks as sitting over a machine without breaks and changes of tasks is not consistent with occupational health and safety.
On re-examination, Dr Forbes:
·Said his opinion was that the Respondent could maintain work of a sedentary nature while taking postural breaks.
·Said that in his opinion the Respondent could walk from a carpark into a shopping centre or supermarket without assistance.
·Said that in his opinion, although he had not discussed it with her, the Respondent would have been able to use public transport without assistance but drives her own car.
·Said that in his opinion the Respondent could perform light day to day household activities as outlined in his report as part of the history taken from the Respondent.
·When put to him that during the Relevant Period the Respondent was doing night fill at Woolworths where she was allowed to work in lighter duties and take breaks when required for five hour shifts four nights a week and that three days a week she also looked after her grandson for three to four hours a day, that factoring in even though she said it was difficult and asked whether he held the opinion that the Respondent could walk around a shopping centre or supermarket without assistance during the Relevant Period, said his opinion had not changed, as it was self-evidence she was able to do so.
PARTIES CLOSING SUBMISSIONS
At the Hearing, in closing submissions the Applicant sought to rely on its previously filed Statement of Issues, Facts and Contentions. The Applicant further contended that:
·The most reliable and persuasive evidence before the Tribunal leads to a 10 point impairment rating on Table 1 of the Impairment Tables, not a 20 point rating.
·It relies on the assessment provided by Dr Forbes.
·That it was clear that Dr Forbes initially assessed the Respondent on the basis that each criteria in the 20 point descriptors on Table 1 of the Impairment Tables however he stepped through each descriptor and his evidence was that it was clear that the Respondent did not meet any of them.
·Dr Smithson was not asked about Table 1 of the Impairment Tables and did not provide a competing assessment to that of Dr Forbes.
·Having regard to what the Respondent was in fact doing during the Relevant Period in relation to the hours she was working at Woolworths and her unpaid caring activity, then it is reasonable to accept Dr Forbes opinion.
·Without a severe impairment the Respondent’s claim for the DSP cannot be successful as she has not completed POS.
·The evidence of Dr Forbes with regards to work capacity should be preferred.
·Dr Smithson conceded that the Respondent may have been fit to work 20 hours in a sedentary role that considered her restrictions.
At the Hearing, in closing submissions, the Respondent sought to rely on her previously filed Statement of Issues, Facts and Contentions. The Respondent further contended that:
·The evidence of Dr Forbes should be given limited or no weight on the basis that:
ohis interpretation of walking around a supermarket had no clear indications of the requirements or expectations;
ohis opinion with regards to Table 1 of the Impairment Tables was based on the work that the Respondent was undertaking;
ohe made a concession that if someone could not walk more than 100 metres that they would be unable to walk around a supermarket;
ohe assumed that all 20 point indicators had to be met on Table 1 of the Impairment Tables; and
ohe acknowledged that he did not ask the Respondent if she could use public transport without assistance.
·Consideration must be given to the amount of leave the Respondent had taken to contextualise that she was not working 15 hours during the Relevant Period.
·In reducing her work hours at the end of the Relevant Period, the Respondent was also acting on the advice given by Centrelink, she had not previously reduced her hours because she could not afford to be financially penalised for needing to work less.
In reply, the Applicant contended that the criticisms of Dr Forbes evidence ought not be given any weight as he did not provide any concessions when you consider his evidence on examination, cross-examination and re-examination, he gave the best medical interpretation of the Table 1, 20 point (1)(i) descriptor in relation to minutes and was briefed on the correct situation of what the Respondent was doing during the Relevant Period, and looked at her functionality while considering the situation overall.
CONSIDERATION
Did the Respondent’s conditions attract 10 or 20 points under Table 1 of the Impairment Tables – section 94(1)(b) of the Act?
The evidence before the Tribunal is clear. That is, the Respondent had difficulty due to her COAD and fibromyalgia conditions with mobilisation and activities of daily living, this is not in contention.
The Tribunal accepts the evidence from the Respondent that during the Relevant Period despite her fatigue, difficulties and pain she pushed through so that she could still do what she needed to, in her role at Woolworths, caring for her grandson and taking care of herself. The Respondent gives the clear impression that she would rather be able to work than experience the medical conditions she does.
The 20 point descriptor on Table 1 of the Impairment Tables provides:
20
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The Tribunal acknowledges the parties contentions in relation to whether unable means that someone is unable to ever do something or whether it means that they are unable to do the task on a repetitive basis. The Tribunal agrees that for the purposes of Table 1 of the Impairment Tables it is more reasonable to approach ‘unable to’ perform the described tasks as unable to perform it with the repetition normally expected.
To that extent when considering the descriptors set out at (1)(a) of the 20 point impairment rating on Table 1 of the Impairment Tables it is important to consider what limitation of repetition of an activity someone experiences in line with a reasonable repetition for that task.
Further, the Tribunal notes that for the purposes of the Impairment Tables, assistance means assistance from another person.[54]
[54] Summers and Secretary, Department of Social Security [2014] AATA 165 and Secretary, Department of Social Services v Doherty [2022] FCA 1242.
In relation to descriptors (1)(a)(i) and (ii) of the 20 point impairment rating on Table 1 of the Impairment Tables, the Tribunal considers that in relation to those descriptors someone would not be expected to walk around a shopping centre or supermarket or from the carpark into a shopping centre or supermarket without assistance on multiple occasions on the same day or for hours at a time. If a person is able to walk into and around a shopping centre or supermarket a couple of times a week for short periods of time, the Tribunal considers that their functional impairment would not satisfy those descriptors.
The evidence before the Tribunal was that during the Relevant Period the Respondent was driving herself to work three to four nights a week and was able to walk from the carpark into the shopping centre and to the supermarket without assistance. It was the stairs that she was required to use at the end of her shift that was causing her the most trouble during the Relevant Period.
The Respondent was also working at Woolworths (a supermarket) during the Relevant Period three to four nights a week for four or five hour shifts. The Respondent told the Tribunal that she would enter the store from the front and walk out to the staff room and then to the aisle she was stocking. The Respondent also said that to take breaks she would sometimes go back to the staff room and have a drink of water or sit down and then come back. The Respondent’s evidence as set out in the Applicant’s contentions outlined above, to the SSCSD was that during the Relevant Period her daughter did most of her shopping and that if she went with her daughter she had to lean on the trolley to walk around the shopping centre, this was consistent with her evidence to Dr Forbes.
The Tribunal further notes that when taken to her report of 9 May 2019 (as provided above) Dr Smithson said that her opinion at that time would have also extended back to the Relevant Period. Dr Smithson had reported that the Respondent had difficulty walking outside the house and walking around a shopping centre, needing to lean on the shopping trolley and to rest in between shops.
There is no evidence before the Tribunal that the Respondent required the assistance of another person to walk into or around a shopping centre or supermarket. While her daughter may have assisted with the shopping, there is no suggestion she was required to assist the Respondent to mobilise.
The Tribunal accepts that walking into and around a shopping centre or supermarket may have been difficult for the Respondent and that she would need to take her time and may have needed to rest. However, the evidence clearly demonstrates that she was able to do it on a repetitive basis, being at least three to four nights a week and did so without assistance. The evidence before the Tribunal indicates that the Respondent may have been taking pain killers after her shifts however she was also taking care of her grandson approximately three days a week during this period. There is no evidence before the Tribunal to suggest that walking into a shopping centre or supermarket or walking around a supermarket or shopping centre caused the Respondent to later be so fatigued or in so much pain that she could not manage anything else for an extended period or that they resulted in severe subsequent symptoms.
The Tribunal accepts the evidence of Dr Forbes in relation to whether the Respondent was unable to walk into and around a shopping centre or supermarket during the Relevant Period. In the Tribunal’s view there is no divergence between the evidence of Dr Forbes and Dr Smithson, both have opined that the Respondent had difficulty doing these tasks rather than was unable to undertake them. In the circumstances, the Tribunal does not accept the Respondent’s contentions that during the Relevant Period she was unable to walk around a shopping centre or supermarket.
There is no corroborating evidence before the Tribunal to establish that the Respondent was unable to use public transport without assistance. The Respondent’s evidence was that she drove her car where she needed to go.
In relation to whether the functional impairments resulting from the Respondent’s conditions mean she was unable to perform light day to day household activities during the Relevant Period, the Tribunal considers that when considered wholistically, the evidence before it indicated that she had difficulty with many day to day household activities, however, not that she was unable to undertake them. The Tribunal considers that the Applicant habitually undertook day to day household activities albeit at her own pace.
The Respondent told the Tribunal that she enjoyed watering her garden and had over time moved her plants to pots which are easier to deal with, that she does spot clean at home, she was able to look after her grandson for a few days a week, of which the Tribunal understands would also include tending to his needs and she was able to arrange her own meals, although she did not cook much. The Respondent also told the Tribunal that the things Dr Forbes reported that she told him she could do during the Relevant Period were correct. Dr Forbes reported that the Respondent had told him that she could do some spot cleaning, wash her dishes and load the washing machine without limitations but that they caused discomfort. She was unable to perform vacuuming, mopping, hanging out the washing, mowing and gardening.
Dr Smithson reported that the Respondent was unable to change sheets on a bed without rest and was unable to sweep/vacuum more than half a normal sized room without needing to stop and rest and catch her breath and that hanging up washing also caused shortness of breath. Dr Smithson did not report that the Respondent was unable to do those things, rather that she would need to stop and rest before completing them.
When considering the totality of the evidence before it, the Tribunal formed the view that during the Relevant Period, the Respondent would have difficulty in performing day to day activities be that light or normal day to day activities. Based on the evidence before it, the Tribunal considers that the Respondent was during the Relevant Period able to perform light day to day household activities, she was able to water her garden, engage in her sewing, look after her home and personal needs, care for her grandson and perform her work at Woolworths.
There is no evidence before the Tribunal to suggest that performing light day to day household activities caused the Respondent to later be so fatigued or in so much pain that she could not manage anything else for an extended period or that they resulted in severe subsequent symptoms.
Consequently, based on the evidence before it, the Tribunal is not satisfied that during the Relevant Period, the Respondent met any of the (1)(a) descriptors of the 20 point impairment rating on Table 1 of the Impairment Tables in relation to the functional impairment that resulted from her COAD and fibromyalgia conditions. The Tribunal does not consider that it is necessary to determine whether or not the Respondent met the (1)(b) descriptor of the 20 point impairment rating on Table 1 of the Impairment Tables as to meet the 20 point impairment rating criteria a person is required to satisfy one element of the (1)(a) descriptors as well as the (1)(b) descriptor.
For completeness, having considered the evidence before it, the Tribunal accepts the opinions of Dr Forbes and Dr Smithson (as provided at the Hearing) that during the Relevant Period the Respondent would have been able to undertake work of a clerical, sedentary or stationary nature.
Based on the evidence before it, particularly the evidence provided by the Respondent,
Dr Smithson and Dr Forbes, the Tribunal finds that the Respondent’s functional impairment that resulted from her COAD and fibromyalgia conditions was moderate and can appropriately be assigned 10 impairment points on Table 1 of the Impairment Tables. Noting that the Tribunal accepts that during the Relevant Period the Respondent: could not walk far outside her home; drove to the shops or community facilities; had difficulties performing day to day household activities, could walk around a shopping centre or supermarket and could perform work-related tasks of a clerical, sedentary or stationery nature as demonstrated by her sewing activities.
Did the Respondent have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that during the Relevant Period the Respondent’s conditions did not result in a severe impairment, however, could be assigned 20 impairment points across three Impairment Tables, it must consider whether or not she met the POS requirements.
During the relevant POS Period, from 12 December 2015 to 12 December 2018, the evidence before the Tribunal indicates that the Respondent had actively participated in a POS for 191 days.[55] As such, during the POS Period the Respondent did not participate for the required 547 days (18 months).
[55] Exhibit 1, T Documents, T41, pages 278-279, POS calculations and summary.
There is no evidence before the Tribunal, that the Respondent met any of the exemptions to the active participation requirement.[56] This is not disputed by the Respondent, who at the Hearing acknowledged that if the Tribunal found that she did not have a severe impairment that she would not be eligible to be granted the DSP during the Relevant Period.
[56] Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, pages 18-19, paragraphs 83-91.
As the Tribunal has found that during the Relevant Period the Respondent did not have a severe impairment and did not meet the POS requirements there is no need to consider whether she was unable to work for at least 15 hours per week independently of a POS or unable to participate in a training activity in the following two years.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Respondent did not meet the requirements of section 94(1)(c) of the Act.
CONCLUSION
Based on the evidence before it, the Tribunal finds that the Respondent had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Respondent’s:
(a)COAD, fibromyalgia and plantar fasciitis conditions were fully diagnosed, fully treated and fully stabilised and, therefore, could be considered permanent for the purposes of assigning a rating under the Impairment Tables.
(b)Functional impairment resulting from her COAD and fibromyalgia conditions attracted a 10 point impairment rating under Table 1 of the Impairment Tables.
(c)Functional impairment resulting from her fibromyalgia condition attracted a 5 point impairment rating under Table 2 of the Impairment Tables.
(d)Functional impairment resulting from her fibromyalgia and plantar fasciitis conditions attracted a 5 point impairment rating under Table 3 of the Impairment Tables.
The Tribunal, therefore, finds that, during the Relevant Period, while the Respondent’s conditions did not result in a severe impairment, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments attracted 20 points under the Impairment Tables.
Based on the evidence before it, the Tribunal finds that the Respondent did not meet the POS requirements.
Consequently, as the Tribunal found that the Respondent did not have a severe impairment, the Tribunal finds that during the Relevant Period she did not meet the requirements of section 94(1)(c) of the Act.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and in substitution decides that the Respondent did not meet the requirements to be granted the DSP in relation to the claim made on 13 December 2018.
I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell
............................[SGD]...........................
Associate
Dated: 2 August 2023
Date of hearing: 21 July 2023 Solicitors for the Applicant: Mr Matthew Hawker
Sparke Helmore LawyersSolicitors for the Respondent: Mr Jackson Mallory
Townsville Community Law
Exhibit 5, Respondent’s Statement of Issues, Facts and Contentions, pages 2-6, paragraphs 11-14 and
18-39.
Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, Attachment D, Addendum Report of
Dr Forbes, pages 62-77.
Exhibit 4, Applicant’s Statement of Issues, Facts and Contentions, Attachment D, Addendum Report of
Dr Forbes, pages 76-77.
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