Na Lin and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 663
•2 October 2012
[2012] AATA 663
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/2061
Re
Na Lin
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Ms N Bell, Senior Member
Dr M Couch, MemberDate 2 October 2012 Place Sydney The decision under review is set aside and instead the Tribunal decides that Ms Lin satisfies the requirements of section 94(1) of the Act.
....[Sgd]....................................................................
Ms N Bell, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – impairment tables – impairment rating – qualification for DSP – continuing inability to work – whether applicant’s migraine condition prevents her from undertaking work – decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42, Sch 1B, Sch 2
REASONS FOR DECISION
Ms N Bell, Senior Member
Dr M Couch, Member2 October 2012
Na Lin migrated to Australia from China in 1989. After attending English classes, Ms Lim obtained a Bachelor of Business degree. She has a daughter and lives with her and with her own parents.
Ms Lin claimed disability support pension on 19 January 2011, and described a lower back condition, migraine, hypertension and stomach upset. Her treating doctor (Dr Low) referred to “arthritis/low grade synovitis of the right sacroiliac joint” present since 1992; “migraines”, present since 2000; “reflux oesophagitis, hyperlipidaemia, hypertension and weight excess”.
After assessment by a Job Capacity Assessor on 20 January 2011, Ms Lin’s claim was rejected on the basis that she had nil impairment points. On review and after lodging a further medical certificate from Dr Low, which included the conditions of anxiety and depression, an Authorised Review Officer allocated 10 points in respect of Ms Lin’s back pain and the decision to reject was affirmed. This was affirmed by the Social Security Appeals Tribunal.
ISSUES
Section 94 of the Act provides for the following requirements for eligibility for disability support pension:
(i)a physical, intellectual or psychiatric impairment; and
(ii)an impairment rating of at least 20 points or more under the Impairment Tables in Schedule 1B to the Act; and
(iii)a continuing inability to work.
The combined effect of sections 41 and 42 and clause 3 of Schedule 2 to the Social Security (Administration) Act 1999 is that only the conditions suffered by Ms Lin during the period from the date of his claim and for the following 13 weeks may be considered for assessment of his qualification for disability support pension. Those conditions must be assessed against the Impairment Tables as they were during that 13 week period, that is, from 19 January 2011 to 20 April 2011.
It is not in dispute that Ms Lin has impairments and so meets the first requirement of section 94. The remaining requirements give rise to the issues in this application.
DO MS LIN’S CONDITIONS ATTRACT AN IMPAIRMENT RATING OF 20 POINTS OR MORE?
At the hearing, Ms Lin pursued her claim only in respect of her back condition and her migraines. It was conceded that Ms Lin’s neck and shoulder conditions were not, in the relevant period, fully treated and stabilised.
We note that for a condition to attract an impairment rating under the Impairment Tables it must be permanent within the meaning of that term in the Introduction to the Tables. The Introduction provides at paragraph 5:
The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next two years.
Paragraph 6 of the Introduction provides that when considering whether a condition is fully diagnosed, treated and stabilised, one must consider:
What treatment or rehabilitation has occurred;
Whether treatment is still continuing or is planned in the near future;
Whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years.
Back condition
There is now no dispute that Ms Lin’s back condition is permanent in that it is diagnosed, treated and stabilised in accordance with the Impairment Tables in Schedule 1B to the Act.
Ms Lin states that her back condition, which began after the birth of her daughter in 1992, is a source of daily pain. She said the pain was constant between 1993 and 1996 and forced her to take time off work as a nursing home assistant. She said she saw a chiropractor and had acupuncture but it gave only temporary relief. She finally took Western medicine for the condition in 2010 when her local doctor, Dr Low, prescribed Celebrex after she had experienced constant pain again from 2000. She said her back pain is worse when sitting, standing or walking for extended periods.
Dr McGill, rheumatologist, reported on Ms Lin’s back as follows:
… She has good spinal movements.
… Her symptoms relate to the false joint between the transverse process of L5 and the pelvis. They are not fixable but nor would I expect those problems to interfere with her function in any major way. She should do her best to keep up regular exercise to control her weight. Intermittent use of analgesic or low dose anti-inflammatory therapy is appropriate. She does not require any further investigation. Unfortunately the fluctuating pain will continue.
Angus Moncrieff prepared his Assessment of Ms Ling’s condition in December 2011. He assessed her condition to be permanent and fully diagnosed, treated and stabilised but assigned a nil impairment rating under the Tables, due to “no loss of spinal movement” based solely on the report of Dr McGill.
Table 5.2 concerns spinal function and provides:
TABLE 5.2 Thoraco—lumbar‑sacral spine
As spinal mobility is a composite movement, this Table measures overall mobility of the trunk including hip movement and is not intended to measure mobility of individual spinal segments.
Rating Criteria
NIL Normal or nearly normal range of movement.
FIVE Loss of one‑quarter of normal range of movement.
TEN Loss of one‑quarter of normal range of movement as well as back pain or referred pain:
with many physical activities and
with standing for about 30 minutes and
with sitting or driving for about 60 minutes.
or
Loss of half of normal range of movement.
TWENTY Loss of half of normal range of movement as well as back pain or referred pain:
with most physical activities and
with standing for about 15 minutes and
with sitting or driving for about 30 minutes.
or
Loss of three‑quarters of normal range of movement.
FORTY Ankylosis in an unfavourable position, or unstable joint.
Because there is no evidence of a loss of range of movement in Ms Lin’s back, we must allocate a rating of nil points under this table.
Table 20 sometimes provides an alternative where pain is chronic:
TABLE 20. MISCELLANEOUS – MALIGNANCY, HYPERTENSION, HIV INFECTION, MORBID OBESITY (ie BMI >40), HEART/LIVER/KIDNEY TRANSPLANTS, MISCELLANEOUS EAR/NOSE/THROAT CONDITIONS & CHRONIC FATIGUE OR PAIN
Table 20 can be used for miscellaneous conditions, for example, malignancy, HIV infection, morbid obesity, transplants, miscellaneous ear/nose/throat conditions, disorders with chronic fatigue (including Chronic Fatigue Syndrome) or pain and hypertension. Where there is a separate loss of function, in addition to the loss which can be rated using the system‑specific Tables, Table 20 can be used. Double‑counting of a particular loss of function, by the use of more than one Table, must be avoided.
Rating Criteria
NIL Controlled hypertension
Malignancy in remission with a good to fair prognosis
Minor symptoms which are easily tolerated and have no appreciable effect on ability to work.
TEN Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work‑related tasks. There is minimal effect/impact on work attendance.
Hypertension that is difficult to control despite intensive therapy but without end‑organ damage
Potentially life‑threatening condition which is currently not interfering with daily activities eg. malignancy in remission with a poor prognosis
Heart/Liver/Kidney transplants – well controlled (well functioning) with only mild systemic symptoms.
FIFTEEN Moderate to severe symptoms which are more distressing but prevent few everyday activities. Self‑care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work‑related tasks and/or attend work. Full‑time work would still be possible.
Potentially life‑threatening condition which is currently interfering with daily activities but self‑care is unaffected.
TWENTY More severe symptoms with a decreased ability/efficiency to carry ou many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work‑related tasks. Symptoms may cause prolonged absences from work.
THIRTY Very severe symptoms which lead to substantial difficulty with most daily tasks. Assistance with elements of self‑care may be required. Symptoms cause severe interference with ability to work or attend work (ie. minimal residual work capacity).
Heart/Liver/Kidney transplants – poorly controlled (poorly functioning) with fairly severe symptoms which lead to substantial difficulty with most daily tasks
Malignant hypertension – severe, uncontrolled
Inoperable, symptomatic and life‑threatening aneurysm or malignancy. Very poor prognosis with only a very limited lifespan.
FORTY Major restrictions in many everyday activities. Capacity for self‑care is restricted, leading to dependence on others. No residual work capacity.
However, in light of Dr McGill’s opinion as to the fluctuating nature of Ms Lin’s back condition, we do not consider it is appropriate to rate her back condition under this table. It follows that Ms Lin’s back condition attracts an impairment rating of nil points.
Migraines
The Secretary submits that Ms Lin’s migraines are not permanent within the meaning of the Introduction to the Impairment Tables.
Ms Lin said she first experienced migraines in 1992 or 1993, but as a recent arrival in Australia, she did not have Medicare and so did not consult a doctor.
Ms Lin first saw Associate Professor Nicholson of Concord Hospital in 2002. In a report of that year he writes Ms Lin’s headaches “are probably true migraine headaches. They are frequently familial and seem to follow the female line of inheritance.” He prescribed a weekly dosage of Inderal and Suvalan. Dr Nicholson has seen Ms Lin on three occasions; twice in 2002 and again in 2011. In a report of 2011 he writes that Ms Lin suffers from severe migraine headaches which occur up to five times a week that can last from one to two hours. They result in pain and vomiting. He states that Ms Lin takes Inderal two times a week and her current treatment includes sodium valprotate twice daily.
As to whether a work environment would exacerbate a migraine Dr Nicholson wrote “not necessarily but likely.” He said her prognosis is poor “as the patient is not compliant”.
Ms Lin’s evidence was that she did abandon her migraine medication at times in favour of Chinese traditional medicine and oils. However, she said she recommenced to take Inderal and sodium valprotate in 2009 when they were prescribed for her by Dr Low. She said she has taken the Inderal consistently since 2009. She said the Inderal made her drowsy and so she saw Associate Professor Nicholson on Dr Low’s referral again in 2011 and he reduced her dose. Ms Lin said she has had no improvement, but she continues to take the medication.
Ms Lin said her migraines have been the same for many years. She said she suffers photosensitivity, loss of vision, pain in the whole of her head and vomiting. When they occur they come on almost instantly and she must lie down in a dark, quiet place. They last for three to four hours and tend to occur in the afternoons or evenings and more frequently in the warmer months. She said she very occasionally suffers two migraines in one day.
Ms Lin said she has seen Associate Professor Nicholson twice since the date of his 2011 report and that no further medication has been prescribed and no other treatment has been recommended by him. She also said he did not raise or discuss her compliance with his recommendations.
Ms Lin provided a detailed diary of her migraine occurrence from 1 October 2011 to 25 July 2012, completed, she said contemporaneously.
Ms Lin’s mother, with whom she lives, gave evidence that she first observed her daughter’s migraines when she visited Australia in 1994. She noted that they have become more severe. She confirmed that when her daughter has a migraine she vomits, complains that her head may explode, applies ointment and goes to bed and stays there for hours. She said they occur nearly every day in summer and less frequently in the colder months.
Amber McLennan conducted a job capacity assessment of Ms Lin in September 2009. She concluded that Ms Lin’s migraine condition was not fully treated or stabilised and assessed the impact of her employment to office work duties only. She also writes that upon assessment Ms Lin provided medical evidence to her including a letter from her GP and a treatment plan outline. There was some dispute as to whether Ms Lin had also provided her with copies of business cards of her specialist treating doctors, including Associate Professor Nicholson. Ms McLennan had no recollection of a letter from Dr Low or of receiving copies of Ms Lin’s doctors’ business cards. Her memory of the interview and assessment was dim. She said she did not contact any of Ms Lin’s doctors to obtain information. By contrast, Ms Lin, in further evidence, was consistent and clear in her recollection that this had been the first assessment she had undergone and that she had taken some trouble to ensure the assessor had all information, including the contact details of her doctors, available. She provided a copy of the photocopied business cards that she had presented to Ms McLennan. We prefer the evidence of Ms Lim in this respect.
Manuela Fregnan’s job capacity assessment in September 2009 came to the same conclusion stating in addition that Ms Lin had not undergone specialist assessment for her migraines. This was patently incorrect.
The January 2011 assessment of Marian Buckley found that Ms Lin’s migraine is not fully treated or stabilised and that there was insufficient medical information to verify and clarify the nature of the condition. Ms Buckley conceded she was not aware that Ms Lin had had specialist treatment and had taken medication for her migraines. She said she did not speak to Ms Lin’s treating doctors.
Angus Moncrieff did not consider Ms Lin’s migraine condition to be fully treated or stabilised. He said he based this conclusion on Professor Nicholson’s comment in his 2011 report that Ms Lin “is not compliant”. He said he also had regard to previous assessments made by other job capacity assessors. He agreed, however, that migraines cannot be cured.
We do not agree that Ms Lin’s migraines are not yet permanent within the meaning of the Introduction to the Tables. They were diagnosed as early as 2002 after beginning in 1996; they have been treated with medication with which Ms Lin says she has been compliant since 2009 with side effects giving rise to an adjustment of the dose in 2011; and they are stable in that they have followed the same pattern for many years. Adjustments to doses of medication and reviews of treatment plans, monitoring with scans and follow up visits to her specialist do not render her longstanding and incurable condition impermanent, within the meaning of the Introduction to the Tables or otherwise. Active medical management of a longstanding condition does not render the condition unstable. To conclude otherwise would discourage people claiming pension from obtaining appropriate medical management of chronic conditions.
Tables 21.1, 21.2, 21.3 and 21.4 concern intermittent attacks and assessment under each of these tables is required in order to allocate impairment points.
Table 21.1, concerning severity of the attack, is as follows:
TABLE 21.1 Intermittent attack – severity
Level Criteria
NIL Minor symptoms which are easily tolerated.
ONE Mild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in some activities.
TWO More severe symptoms which are distressing, but prevent few everyday activities. Loss of efficiency is discernible elsewhere. Self‑care is unaffected and independence is retained.
THREE Loss of efficiency is discernible in many everyday activities. Some elements of self‑care are restricted but in most respects, independence is retained. Bed‑rest is often necessary during an attack.
FOUR Major restrictions in many everyday activities. Capacity for self‑care is increasingly restricted, leading to partial dependence on others.
FIVE Most everyday activities are prevented. Dependent on others for many kinds of self‑care. Able to be maintained at home only with considerable difficulty, or hospital admission is required.
SIX Total incapacity. Unconscious or delirious. Self‑care is impossible.
Ms Lin’s evidence was that when she has a migraine she must cease all activity and go to bed. We find that the severity of her migraines is at level three.
Table 21.2, concerning duration, is as follows:
TABLE 21.2 Intermittent attack – duration
Description Duration
Transient Lasting up to and including five minutes.
Short Lasting more than five minutes but less than 30 minutes.
Medium Lasting from 30 minutes to four hours.
Prolonged Lasting more than four hours.
Ms Lin’s evidence was that her migraines last for two to three hours. Associate Professor Nicholson said in 2002 that they last for one to two hours. We find they are of medium duration under table 21.2.
Table 21.3, allocating a severity grading, is as follows:
TABLE 21.3 Severity – grading code
Description Severity Level
| 0 | 1 | 2 | 3 | 4 | 5 | 6 | |
| Transient | A | A | A | B | C | C | F |
| Short | A | A | C | C | D | E | H |
| Medium | A | B | C | D | E | H | I |
| Prolonged | A | C | D | F | G | I | J |
A rating is obtained using Table 21.3 and Table 21.4:
determine the intermittent grading code appropriate to the estimated severity and duration from Table 21.3; and
make the rating appropriate to the intermittent grading code and frequency from Table 21.4.
The combination of Ms Lin’s severity level and the duration of her attacks yield a grading of “D”.
Finally, Table 21.4, concerning frequency of attacks, is applied to the severity grading to indicate the points to be assigned to the condition. Table 21.4 is as follows:
TABLE 21.4 Assignment of a rating
Frequency (Affected days/year)
2+
5+
10+
20+
40+
100+
Intermittent
Rating
Grading code
A
‑
‑
‑
‑
‑
‑
B
‑
‑
‑
‑
‑
5
C
‑
‑
‑
‑
5
10
D
‑
‑
‑
5
10
20
E
‑
‑
‑
5
10
30
F
‑
‑
5
5
10
30
G
‑
‑
5
10
20
30
H
‑
‑
5
10
30
40
I
‑
5
10
30
40
40
J
5
10
20
40
40
40
Ms Lin’s diary of migraines indicates that in a period of just nine months, she suffered 168 migraines. She also said this has been the pattern of frequency of her migraines for many years. This places her in the frequency category of 100+ days per year. Combined with her severity grading of “D”, this yields 20 impairment points.
Therefore, Ms Lin’s impairment rating satisfies the requirements of section 94(1)(b) of the Act.
DOES MS LIN HAVE A CONTINUING INABILITY TO WORK?
Section 94(2) of the Act defines “continuing inability to work” as follows:
94 (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)—the person has actively participated in a program of support within the meaning of subsection (3C); and
(a) in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
…
(5) In this section:
…
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
Ms Lin’s evidence was that in Australia before and after she married she worked as process worker, a kitchen hand, cleaning fish in a fish shop and as a general cleaner. In 1993 after her daughter was born she worked as an assistant in a nursing home. She said she began to get more migraines and was affected by the pain in her lower back. She said she had to have days off work as a result.
Ms Lin completed a Bachelor of Business degree in 2000 at Southern Cross University and then a Certificate in Finance at TAFE in 2002. She said she was unable to study during the day in summer and couldn’t sit for very long. She said she sometimes had to leave lectures and listen to them later on tape. Her migraines meant that she had to attend classes in the evenings and it took her an additional 6 months to complete the course.
Ms Lin said she applied for jobs at the Australian Taxation Office and as a bookkeeper but has had no success.
Ms Lin’s capacity for work has been assessed by a total of four job capacity assessors. The first job capacity report, by Amber McLennan on 14 September 2009 assessed Ms Lin’s future work capacity to be 30 hours per week with and without intervention. The second assessment in September 2010 by Manuela Fregnan, assessed Ms Lin’s then current baseline work capacity to be 15 to 22 hours per week and any future capacity with medical intervention, rehabilitation and job seeking assistance to increase by about 10 hours. Suitable work included light semi-skilled including book-keeping and other clerical office work. At that time, Ms Lin had a temporary reduced work capacity of 0 to 7 hours per week due to an exacerbation of her conditions. The third assessment by Marian Buckley on 20 January 2011 made an identical assessment to that of the one made in 2010 by Manuela Fregnan. The assessment of Angus Moncrief in December 2011 concluded that Ms Lin had a baseline work capacity of 8 to 14 hours per week and assessed suitable work to be moderate less skilled including cleaning or process work. He wrote that her conditions “combine to limit the [her] ability to maintain tasks for extended periods of time as well as complete certain tasks including heavy lifting, excessive standing and excessive walking.” He assess that future work capacity with intervention will increase to 15 to 22 hours per week.
All job capacity assessors who gave evidence to the Tribunal agreed that a person who suffered from migraines of the kind and for the duration and frequency as those suffered by Ms Lin would be unable to sustain employment. All agreed than an employer would not tolerate absence because of migraine every second day. None of the job assessors who gave evidence had spoken to any of Ms Lin’s treating doctors. They appeared to have little information about the nature and history of treatment of Ms Lin’s migraine condition and all disregarded it after concluding it was not a permanent condition.
We consider that Ms Lin’s migraine condition, particularly with its heightened frequency in the warmer months, would of itself prevent her from working for at least 15 hours per week. Migraines, while they may follow a general pattern, are also unpredictable and Ms Lin’s evidence was that they come on suddenly. It would not be possible for her to predict when she might be migraine free and therefore when she might confidently make herself available for work without being struck by an incapacitating migraine. While Ms Lin has shown that she is able to undertake training, we do not consider that she would be able to sustain employment for 15 hours per week, no matter how well trained. Given the long history of this condition, we see no indication of possible improvement in the next two years.
It follow that Ms Lin has a continuing inability to work within the meaning of section 94(1)(c) of the Act.
DECISION
The decision under review is set aside and instead the Tribunal decides that Ms Lin satisfies the requirements of section 94(1) of the Act.
I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member N Bell and Member Dr M Couch. .......[Sgd].................................................................
Associate
Dated 2 October 2012
Date of hearing 26 July 2012 Solicitors for the Applicant Mr S Hodges, Stephen Hodges Solicitor Solicitors for the Respondent Mr J Larcombe, Centrlink Program Litigation & Review Branch
Key Legal Topics
Areas of Law
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Social Security Law
Legal Concepts
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Qualification for Disability Support Pension
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Continuing Inability to Work
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Impairment Rating
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