Ms Kate Negri and Secretary, Department of Social Services
[2015] AATA 179
•26 February 2015
[2015] AATA 179
Division GENERAL ADMINISTRATIVE DIVISION File Number
2014/1657
Re
Ms Kate Negri
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Dr Roderick McRae, Member
Date 26 February 2015 Date of written reasons 26 March 2015 Place Melbourne For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal affirms the decision under review.
.............................[sgd]...........................................
Member
SOCIAL SECURITY - disability support pension - fibromyalgia - continuing inability to work - whether able to work 15 hours per week - decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 s 37
Social Security Act 1991 s 94(1) and (2)(aa)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011REASONS FOR DECISION
Ms Kate Negri (the Applicant) has been receiving disability support pension (DSP) since 10 January 2014 (Supplementary T (ST) document 2). She lodged an earlier claim for DSP on 16 October 2012. On 22 November 2012 a Centrelink Officer rejected the Applicant’s claim for DSP, stating that she had not actively participated in a program of support, a requirement for DSP eligibility (T document (T) 9). (Centrelink is the service delivery agency for the Department of Social Services.)
The Applicant requested a review of this decision by an authorised review officer (ARO) on 4 February 2013 (T23). The ARO affirmed the decision on 26 November 2013 (T15). The Applicant sought review of the ARO’s decision by the Social Security Appeals Tribunal (SSAT). The SSAT affirmed the ARO’s decision on 12 March 2014 (T2). On 2 April 2014 the Applicant lodged an application for review of the SSAT decision with this Tribunal.
The issue before the Tribunal is whether the Applicant was entitled to DSP according to the requirements of s 94(1) of the Social Security Act 1991 (the Act) at the time of her claim on 16 October 2012, or within the subsequent 13 week period ending on 15 January 2013 (the relevant period). The Tribunal’s decision is that the Applicant was not entitled to DSP during the relevant period.
The Applicant was represented by Ms A Wong, instructed by Ms A Siskovic of Victoria Legal Aid. The Respondent was represented by Ms V Chan, a Centrelink advocate. The Tribunal had before it documents lodged by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (the T documents).
BACKGROUND
The Applicant is a 37 year old, single woman from Melbourne who trained as a teacher and then worked in various management roles. She holds an Advanced Diploma of Marketing, Certificate IV in Business, Certificate IV in Business Administration, Certificate IV in Procurement, Certificate IV in Training and Assessment and Certificate II in Hospitality and Tourism (T6). The Applicant was employed by Victoria University as a teacher from July 2010 to December 2011 (T6).
In December 2007, the Applicant experienced pain while running for recreational exercise. In June 2008, following a bone scan (T11), she was advised that she had a stress fracture of her left inferior pubic ramus. On 1 October 2008 Dr R Karna, consultant rheumatologist, noted that the Applicant’s blood tests were normal and that the predominant problem…is fibromyalgia.
The Applicant lodged a claim for DSP on 16 October 2012. In a treating doctor report (TDR) dated 17 October 2012, Dr D Greene, the Applicant’s specialist general practitioner since October 2010, cited fibromyalgia, diagnosed 14 October 2008, as the medical condition with most impact on the Applicant (T7). Consistent with the rheumatologist’s recommendations of 2008, the condition was likely to persist for over two years, with treatment being medication for pain management and a referral to a psychologist. No other conditions were listed in this TDR.
Centrelink arranged for the Applicant to undergo a job capacity assessment (JCA) on 23 October 2012 (which was within the relevant period) (T8), by a registered psychologist and an exercise physiologist. These experts relied on information in the TDRs of Dr D Greene to develop and assign impairment point ratings according to Impairment Tables 1 and 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011(the Impairment Tables).
The JCA indicated that the Applicant suffered a moderate functional impact on activities requiring physical exertion or stamina and moderate functional impact on activities involving spinal function. It was noted that the Applicant stated today was a bad day, that she was able to go to the supermarket for light purchases, but if she mop[ped] the floor at home that [would be] all she would be able to do for the entire day. The JCA report also stated that her functional limitations can vary day to day, and she works from time to time in hospitality. The total impairment rating from the two separate Tables was 20 points. The JCA indicated that the requirement of active participation in a program of support was not met, and that the Applicant’s capacity for work within two years with intervention was 15-22 hours per week.
Dr Greene completed another TDR dated 18 December 2012 (T10), again specifying fibromyalgia as the condition with the most impact on the Applicant, but also citing osteopenia, depression and wrist pain. There is an apparent overlap of attribution of medication to different co-existing medical conditions.
Centrelink arranged for the Applicant to undergo another JCA by different assessors on 31 January 2013 (which was after the relevant period) (T12). This JCA was conducted by a different registered psychologist and exercise physiologist. The new assessors noted that the Applicant reported fluctuating (sic) in symptoms and severity of symptoms…bad days… [and] …good days. Using Tables 1 and 4 of the Impairment Tables, they established a total impairment rating of 10 points. The assessors gave no rating to depression and wrist pain as these conditions were not fully documented, treated or stabilised as required by the Act.
On 7 March 2013 (which was after the relevant period) Dr D Lewis, consultant rheumatologist, re-examined the Applicant after a two year period and noted that the [c]linical examination is significantly improved compared to when I last saw her. The Applicant has been off all alcohol. Previously she had quite a high intake. His opinion was that the Applicant has symptoms and signs that fit within the spectrum of fibromyalgia and chronic fatigue. Dr Greene signed a letter on 24 October 2013 stating the Applicant was medically fit to work 4 days at the Spring Racing Carnival with rest days in between.
A further JCA was conducted on 12 February 2014 in connection with a new DSP claim (T20). It was undertaken by a qualified social worker, a registered psychologist and an accredited exercise physiologist. The assessors assigned the Applicant’s fibromyalgia an impairment rating of 5 points under Table 1 and her impaired lower limb function a rating of 5 points under Impairment Table 3, resulting in a total Impairment Rating of 10 points. They noted that the Applicant has never had any consistent treatment for her mental health issues and GP suspects the client has traits of an undiagnosed personality disorder. They referred to bad days, but noted that the Applicant does not receive any assistance with self-care or domestic chores. They determined the Applicant’s work capacity at 0-7 hours per week until 20 March 2014, followed by 8-14 hours per week, increasing to 15-22 hours per week within two years.
WITNESS STATEMENTS
Dr A Sillcock, consultant occupational physician, confirmed in her oral evidence that she provided a written report dated 5 September 2014 in relation to an examination undertaken four months earlier, on 5 May 2014, following a referral dated 31 March 2014. She relied on an illness history provided by the Applicant rather than reviewing the Applicant’s medical records, including those related to the Applicant’s mental state. Dr Sillcock stated that the Applicant told her she was under the care of a psychiatrist and a psychologist and that would generally suggest some mental health issues. She conceded she did not thoroughly read the (JCAs) appended to her referral letter, saying: I tend to scan the referral documents and get rid of the rest.
Dr Sillcock said that fibromyalgia is a poorly understood condition. Characteristic symptoms are pain affecting all parts of the body. She stated that fibromyalgia is often a diagnosis of exclusion. Dr Sillcock agreed with the statement that on examination there was tenderness …all over and that the Applicant had restricted movement in all directions of her neck. This was partly related to fibromyalgia, although the Applicant had a back condition as well. Dr Sillcock stated that non-organic pain behaviour is a symptom of a lot of things, which could include fibromyalgia. Dr Sillcock agreed that fibromyalgia is a condition that can fluctuate in severity almost from hour to hour and said that the concept of a bad day has to be self-reporting.
When asked if the Applicant would experience pain and fatigue when performing light exercise, Dr Sillcock stated I expect that she would. When asked if the Applicant would experience pain and require rest after experiencing the jerking movement of public transport, Dr Sillcock stated that this could be the case and that the Applicant would have difficulty performing things like cleaning the house and normal daily activities. She said that anything [the Applicant] does would have to be do (sic) a very small amount at a time. Dr Sillcock stated that while she previously assessed the Applicant as achieving 10 points under Table 1 of the Impairment Tables, she now considers 20 [points] would be more appropriate.
Under cross-examination on this point, Dr Sillcock stated I was wrong… the 20 points is actually more appropriate because there are things… she cannot use [such as] public transport, she has difficult[ty] performing light day-to-day activities and is, has or is likely to have difficulty sustaining work related tasks. Still under cross-examination, she agreed regarding the impairment points, I had originally given her 10 [points] which does correlate more with what was in that job capacity [report]. Dr Sillcock noted that the Applicant told her she had to stop a couple of times driving from Footscray to Rowville to see her. While she considered the Applicant’s conditions attracted 15 points as an average between 10 and 20 points, she preferred the 20 point rating as it was giving the person the benefit of the doubt. She said that these things are always difficult because you’re being asked to judge something, you know, that…was sort of 18 months earlier.
Dr Sillcock stated that depression and fibromyalgia quite frequently go together. She stated many of the Applicant’s symptoms of fibromyalgia are also symptomatic of depression. She explained that it is quite difficult to find corroborating evidence. Table 5 of the Impairment Tables says sort of mild difficulties and I think that she has far more than mild difficulties. Dr Sillcock agreed that antidepressant medications are prescribed in circumstances other than a clinical diagnosis of depression. She was familiar with antidepressant medications being prescribed in a program of pain management, with those drugs [being] used more for pain management these days than for the treatment of depression. Under cross-examination she testified that there is…perhaps some over-diagnosis of depression as opposed to just sadness. She accepted that there was nothing to suggest that the Applicant was suffering from significant anxiety.
Dr Sillcock agreed the Applicant’s impairment from fibromyalgia [would] be sufficient to prevent [her] from working 15 hours per week …. She said maybe on a good day she’d be able to work for three or four hours but on bad days she wouldn’t … I really don’t think she would be able to sustain that reliably. She conceded her statement pertaining to October 2012 was at best an educated guess based on what the Applicant had told her had been happening with her symptoms. Under cross-examination she said that on one of her good days she may well be able to do a couple of hours’ work but there’s no predicting when the good days will be.
The Applicant provided oral evidence. She testified that the pain from her fibromyalgia
seems to stem right through the body from headaches at the top of my skull, right down to my aching toes…my nerves feel like they’re stretching, pulling sensations…which cause pain… The fatigue seems to happen with the increase of physical exertion which includes increase of physical pain…there is no pattern with good days… They just happen when they happen.
She experiences pain at a 6/10 level on good days and at a 10/10 level on bad days. She has had no other life experience with such severe pain as her 10/10 pain caused by fibromyalgia. The Applicant stated that it’s hard to remember back [to the time of the application]. Under cross-examination, she stated her mobility would fluctuate. She may have a person assist her in a shopping centre, or [s]ometimes…use a walking stick. She agreed that in 2012, the year she travelled to Cairns, she could rely mostly on other tools and not on a person. Much depend[ed] on the pain.
The Applicant described her administrative and then teaching working positions at Victoria University from September 2010 until late 2011. She said that she could not remember her specific work arrangements, but thought she would have to take a break [p]robably every hour for between five and 20 minutes. She self-medicated with Lyrica above prescribed doses, but this also increased the symptom of anxiety. She used Endone but could not recall the dose. She agreed she took days off due to the pain. She ceased this work as the pain had become so bad. In 2011, she worked for Peter Rowland catering services as a floor supervisor or corporate box host for the four days of the Spring Racing Carnival at Flemington Racecourse, putting in shifts anywhere between a six and a 11 hour day. She was able to take breaks during her shifts.
The Applicant agreed that her mental state is related to the impact of fibromyalgia. This mental state manifests as low mood and motivation, as well as panic and anxiety symptoms. Although Lyrica provided some of those symptoms, they could occur without an increased dosage of Lyrica. She was prescribed Endep in 2010 [by someone whose name she cannot recall but stated was a psychiatrist], but said it was prescribed as a sleeping additive to begin with then increased for depression purposes… It’s one of those pills that is multifunctional so it can help with sleeping, it can help with pain. Her visit to a psychiatrist, Dr Kater, in early 2014 did not result in any alteration of her prescription and subsequent visits were with a psychiatric nurse.
The Applicant described pain associated with travelling on all forms of public transport. I get agony … All the symptoms that I’ve described with the fibromyalgia, basically [public transport would] trigger. She agreed she would not be able to work either in hospitality or at a desk after using public transport.
The Applicant agreed that she was a voluntary client of MatchWorks employment agency from September 2010 to May 2011. This was because she was looking for support for managing [her] condition in a work environment. She had difficulty remembering the circumstances. She described discussing pacing techniques and planning things around good and bad days in 2010 while at Dorset Rehabilitation Centre, however she can’t … remember [the] conversations. CRS Australia, the disability employment agency, could not help her because [she] wasn’t on a pension. They provided her with nothing in terms of services.
Under cross-examination, the Applicant stated there is no task that I can maintain consistently on any aspect of lifestyle or work-related. Compared to 2012, the Applicant thinks she has deteriorated but [she] think[s] the symptoms are exactly the same. [She] think they’ve just worsened.
APPLICANT’S SUBMISSIONS
The Applicant submitted that a physical impairment of difficulty turning her head and her inability to sit for 10 minutes as reported on 5 September 2014 warrant 20 impairment points, which means that she is not required to participate actively in a program of support. She submitted that she is unable to perform light household tasks on a normal, repetitive or habitual basis, which attracts 10 points under Table 4 of the Impairment Tables. She submitted that her anxiety and/or depression attract 10 points under Table 5 of the Impairment Tables. She also submitted that she has a continuing inability to work for at least 15 hours per week due to her medical conditions. She claimed that she met the requirements of the Program of Support Determination.
RESPONDENT’S SUBMISSION
The Respondent conceded that the Applicant has a physical impairment, but submitted that this impairment fails to rate 20 points or more under the Impairment Tables, including under any one Impairment Table. No Mental Health Functions were fully diagnosed, treated and stabilised, and so no Impairment Points could be allocated for those conditions. The Respondent further submitted that the Applicant did not have a continuing inability to work for 15 hours per week during the relevant period. The Respondent noted that the Applicant did not actively participate in a program of support for 18 months in the 36 months prior to her claim, or have her program terminated. The Respondent submitted this was not because she was unable, solely because of her impairments, to improve her capacity to find, gain or remain in employment through continued participation, but because she failed to attend the program and was unable to be contacted.
OTHER EVIDENCE
Dr D Lewis, consultant rheumatologist, stated on 17 March 2009 that the Applicant presented with a very significant chronic pain syndrome in association with a very significant alcohol addiction. On 27 Apr 2010, he stated the Applicant is functioning reasonably well, and recommended she attend a rehabilitation program at Dorset or Olympia hospitals.
In a referral letter to consultant psychiatrist Dr L Kader dated 20 February 2014, Dr Greene wrote that the Applicant, whilst attempting to obtain DSP, and having engaged in multiple pain management programmes, had a [w]orsening mood over time secondary to her underlying pain…but ha[d] never been reviewed independently by a psychiatrist. On 23 January 2009 Dr Lewis had referred the Applicant to Dr N Krapivensky of the Melbourne Medibrain Centre in the context of chronic pain management. Dr Krapivensky is a specialist psychiatrist.
In a faxed bundle of documents (five pages including a cover sheet) from Dr Krapivensky, there is a page headed Consultation Notes produced by the Royal Australian College of General Practitioners, with an unsigned, hand-written entry dated 12 February 2009, and a second unsigned, hand-written entry dated 22 October 2009. The latter includes the words [o]ngoing pain and depression ??alcohol. A letter dated 12 March 2009 and signed by Dr Krapivensky to an unnamed nurse manager at the Epworth Rehabilitation Hospital recommended an increase in the prescribed dosages of Effexor and Valium in the context of a pain management rehabilitation program.
LEGISLATION
Section 94(1) of the Act provides that
A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
…
Section 6 of the Impairment Tables reads as follows:
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’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.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(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.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully Stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(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.
…
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
FINDINGS
The Applicant claimed DSP on 16 October 2012. The associated qualification period ran from that date until 15 January 2013.
Dr Greene, having managed the Applicant since 8 October 2010, completed a reasonably contemporaneous medical report on 17 October 2012. This cited fibromyalgia as the sole medical issue. Management was by multimodal oral analgesia and referral to a psychologist for ongoing consultations.
The Applicant has fibromyalgia subsequent to a left inferior pubic ramus fracture in 2007. This condition is fully diagnosed, treated and stabilised, although it has had a fluctuating clinical course over time. The Tribunal is satisfied the Applicant meets the requirements of s 94(1)(a) of the Act.
The Tribunal is satisfied that the Applicant’s fibromyalgia is permanent as required by the Act, so it does attract impairment points under the Impairment Tables. Fibromyalgia causes periods of severe incapacity, as well as periods of manageable symptoms associated with chronic pain and fatigue. Such times are unpredictable. The Tribunal considers that the Applicant’s and Dr Sillcock’s testimony relate to a time close to the present, rather than to the relevant period. Despite many attempts to direct her attention to the relevant period, the Applicant was frequently unable to remember her experiences within the relevant period with any degree of precision, tending to assume everything was as it is today; or to refer to her recent experience of pain. There is no test result available to provide a measure of clinical events related to fibromyalgia
Dr Sillcock relied on what the Applicant told her, and the Applicant has a poor memory of specific events in the relevant period. Dr Sillcock is, at best, guessing what the Applicant’s circumstances may have been like18 months before she met the Applicant. Her report was dated four months after the examination she undertook, and she formed her views through a prism of giving the Applicant the benefit of any doubt. Dr Sillcock noted the difficulty of assigning an impairment rating in such circumstances. She belatedly altered her opinion to a more favourable one for the Applicant, awarding an increase from 10 points to 20 points under Impairment Table 1 because she thought the Applicant was somewhere in between the two settings in the Table.
The Tribunal finds that Dr Sillcock did not read the contemporaneous JCA report of 23 October 2012 by a registered psychologist and an accredited exercise physiologist until she was in the witness box. The Tribunal finds that Dr Sillcock’s examination assessment is too remote from the relevant period to be useful and that it is too speculative to hold the weight that the Applicant favours. The Tribunal prefers the contemporaneous assessment of the JCA, which incorporates available medical reports and the contemporaneous history from the Applicant to Dr Sillcock’s retrospective favourable guesses written almost two years after the date of claim and open to alteration on ungrounded intuition informed by the unreliable memory of the Applicant. That JCA assigned the condition 10 points under Impairment Table 1.
The Tribunal notes that another JCA undertaken by another registered psychologist and accredited exercise physiologist on 31 January 2013, just after the relevant period but well before Dr Sillcock’s examination, also informed by relevant medical reports and the Applicant’s history, allocated only 5 points for fibromyalgia. The Tribunal accepts that this is consistent with the fluctuating history of fibromyalgia, and is consistent with Dr Lewis’s observation of improvement in his letter of 7 March 2013.
On the basis of the best information available to it, the Tribunal assigns the Applicant 10 impairment points under Impairment Table 1 for the fibromyalgia. The Tribunal notes that even Dr Sillcock would be obliged to do this based on her own evidence and consistent with the requirement of the Act to assign the lower of two ratings pursuant to s 11(1)(c) of the Impairment Tables.
Another condition raised at the hearing was the Applicant’s mental health, comprising primarily depression but also an element of anxiety. The Tribunal cannot identify any evidence of a diagnosis of anxiety. Therefore, it finds that the condition has not been diagnosed, let alone treated and stabilised. As a consequence, it is not possible to allocate an impairment rating for anxiety.
The Tribunal finds that it is difficult, on the evidence before it, to separate depression from fibromyalgia and its associated chronic pain. This finding is supported by the oral evidence of Dr Sillcock. The Tribunal is aware from its own experience, that the management of chronic pain is undertaken by a multidisciplinary team comprising pain management experts, often anaesthetists, rehabilitation experts, rheumatologists, neurologists and psychiatrists. The Tribunal considers that the Applicant’s interaction with a psychiatrist in 2009 was in the context of overall pain management and not specifically related to a referral for depression. The Tribunal considers that an unsigned, hand-written note featuring the word depression is not sufficient to establish a diagnosis of depression, even if it can be proven that the author of the note is a consultant psychiatrist. This is particularly so given that there was no follow-up correspondence related to this potential diagnosis, no management plan and no plan for regular review.
In addition, not all recipients of antidepressant medications have a clinical diagnosis of depression, and antidepressant medications are used in the management of chronic pain syndromes. Moreover, the Applicant herself stated that she was prescribed antidepressants to assist with sleep and pain management. In his referral letter to consultant psychiatrist Dr L Kader dated 20 February 2014, Dr Greene stated the Applicant has never been reviewed independently by a psychiatrist. The Tribunal infers that the Applicant’s treating specialist general practitioner was not aware of the Applicant’s receiving a purely psychiatric assessment unrelated to a pain management program. There is no evidence Dr Greene was aware that Dr Krapivensky met the Applicant, let alone discussed a diagnosis of depression.
The Tribunal finds that during the relevant period, the Applicant evinced features of a lowered mood associated with her diagnosis of fibromyalgia. This is consistent with the written opinion of Dr Greene in his TDR dated 18 December 2012 related to fibromyalgia. However, there is insufficient evidence to confirm a diagnosis of depression, despite Dr Greene’s adding it as a third, less pressing, medical condition in the same TDR. The Tribunal holds that the link between a meeting with Dr Krapivensky and a formal diagnosis of depression is too tenuous to constitute a diagnosis. The Tribunal notes the letter of a psychologist, Ms M Donati, dated 20 September 2012, but observes that its tone and references to both anxiety and depression are out of keeping with other contemporaneous medical assessments, including the regular specialist general practitioner’s TDR, and that Ms Donati moreover states these are secondary to a medical condition. At best this may indicate an unstable clinical trajectory, but it is consistent with a reactive mood alteration to the fluctuating symptoms of fibromyalgia and self-induced overuse of a prescribed medication combined with intermittent excessive alcohol ingestion.
The Tribunal cannot identify any firm evidence related to a diagnosis of depression per se at the relevant period. Accordingly, it finds that the condition has not been diagnosed, let alone treated and stabilised. Depression cannot be considered a permanent condition. As a consequence, it does not attract an impairment rating.
The Tribunal notes that other medical conditions have been contemplated during the consideration of the claim for DSP on 16 October 2012. These were not given specific attention at the hearing, and the Tribunal notes the difficulty of isolating them from fibromyalgia. The Tribunal finds that the Applicant’s lower back pain is not fully diagnosed, treated and stabilised and so it cannot be considered a permanent condition. As a consequence, it is not possible to allocate an impairment rating for lower back pain.
The Tribunal finds that the Applicant’s chronic wrist and hand pain is not fully diagnosed, treated and stabilised and so it cannot be considered a permanent condition. As a consequence, it is not possible to allocate an impairment rating for chronic wrist and hand pain.
CONCLUSION
The Applicant satisfies s 94(1)(a) of the Act in that she had fibromyalgia during the relevant period. However, this condition did not attract 20 impairment points as required by the Act.
The Tribunal concludes that, at the time of her claim for DSP and in the following 13 weeks, the Applicant did not satisfy the requirements necessary to qualify for DSP.
DECISION
Accordingly, the decision to reject the claim for DSP was the correct decision. The Tribunal affirms the decision of the SSAT made on 12 March 2014.
I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Dr Roderick McRae, Member .......................[sgd]......................................
Administrative Assistant
Dated 26 March 2015
Date of hearing 26 February 2015 Counsel for the Respondent Ms A Wong Solicitors for the Applicant Ms A Siskovic, Victorian Legal Aid Advocate for the Respondent Ms V Chan, Department of Human Services
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