Ngo and Secretary, Department of Social Services (Social services second review)
[2016] AATA 955
•29 November 2016
Ngo and Secretary, Department of Social Services (Social services second review) [2016] AATA 955 (29 November 2016)
Division
GENERAL DIVISION
File Number
2016/3150
Re
Quy Mai NGO
APPLICANT
And
Secretary, Department of Social Services
RESPONDENT
DECISION
Tribunal Mr D. J. Morris, Member Date 29 November 2016 Place Melbourne The decision that the Applicant was not qualified for Disability Support Pension is affirmed.
.....................................[sgd]...................................
D. J. Morris, Member
SOCIAL SERVICES – Disability Support Pension (DSP) – Whether qualified – whether impairments are fully diagnosed, fully treated and stabilised – whether impairments attract 20 points or more on Impairment Tables – major depressive disorder – generalised anxiety disorder – chronic neck pain – bilateral carpel tunnel syndrome – helicobacter gastritis – not qualified for DSP – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999Social Security (International Agreements) Act 1999
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014Cases
Negri v Secretary, Department of Social Services [2016] FCA 879
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) 131 ALD 450; [2012] FCA 1275
REASONS FOR DECISION
D. J. Morris, Member
29 November 2016
Background
Mrs Quy Mai Ngo applied for a Disability Support Pension (DSP) on 29 June 2015.
On 22 September 2015, the Applicant attended a Job Capacity Assessment (JCA). The Assessor formed the opinion that Mrs Ngo had the following conditions: neck and arm pain, chronic dizziness, helicobacter gastritis, bilateral carpal tunnel syndrome, latent tuberculosis, migraine and anxiety/depression. The JCA concluded that some conditions caused no functional impact, and the others were not fully treated nor fully stabilised. The JCA recommended an assignment of zero impairment points and was of the view that the Applicant had a baseline work capacity of 8-14 hours per week, and a capacity for work of between 15 and 22 hours per week within two years with appropriate intervention.
On 24 November 2015 an officer of the Department of Social Services (the Department) decided that Mrs Ngo was not qualified for DSP. This is the original decision that is under review in this hearing.
The Applicant sought a review by an Authorised Review Officer (ARO). On 1 March 2016 the ARO affirmed the original decision.
On 8 March 2016 Mrs Ngo requested a review of the original decision by the Social Services and Child Support Division of the Tribunal (AAT1). This took place on 17 May 2016. AAT1 affirmed the original decision.
The Applicant requested a review in the General Division of this Tribunal. This hearing was held on 14 October 2016. The Applicant was represented by an advocate, Mr Pat Carson. The Respondent was represented by Mr Joshua Lessing, solicitor. Mrs Ngo gave sworn evidence and was cross-examined. Her husband, Mr Troung, also gave evidence and was cross-examined. Owing to language barriers, an interpreter translated the proceedings into Cantonese.
The Respondent tendered documents submitted under section 37 of the Administrative Appeals Tribunal Act 1975 (‘T’ documents), which were admitted into evidence (Exhibit R1). The Respondent also submitted the following documents, which were admitted into evidence:
·Job Capacity Assessment report of Applicant dated 2 April 2012 (Exhibit R2).
·Functional Capacity Evaluation Report dated 19 October 2012 (Exhibit R3).
The following documents tendered by the Applicant were also admitted into evidence:
·Outline of Submissions, lodged on 26 September 2016 (Exhibit A1).
·Witness Statement from Hiem Hou Troung, dated September 2016 (Exhibit A2).
·Witness Statement from Angela Troung, dated September 2016 (Exhibit A3).
·Witness Statement from Anthony Troung, dated September 2016 (Exhibit A4).
·Medical report dated 6 October 2016 from Dr Jimmy Hoe Nguyen, general practitioner (Exhibit A5).
·Medical letter dated 25 August 2016 from Dr Stella Kwong, psychiatrist, to Dr Jimmy Hoe Nguyen (Exhibit A6).
·Medical report dated 20 September 2016 from Dr Stella Kwong (Exhibit A7).
·Medical report dated 12 October 2016 from Dr Stella Kwong (Exhibit A8).
After the hearing, on 19 October 2016 at the Tribunal’s request, the Respondent provided to the Tribunal and the Applicant a copy of the Applicant’s earlier claim for DSP dated 7 March 2012.
What are the qualifications for DSP?
The law applicable to the grant of DSP is the Social Security Act 1991 (the Act), in particular section 94.
In order to qualify for DSP, a person’s claim must be assessed under section 94(1) of the Act and the qualification criteria for DSP must be satisfied. For this reason, it must be established that the person has a physical, psychological or mental impairment, that the impairment is awarded 20 points or more under the Impairment Tables, and the person has a continuing inability to work.
The Impairment Tables referred to in section 94(1) are to be found in subordinate legislation, namely a ministerial determination called the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The Determination came into effect on 1 January 2012 and is applicable to assessments of qualification for DSP from that date.
The applicable provision relating to the Applicant’s ability to “work” are subsections 94(1)(c) and section 94(5) of the Act with subsection 94(5) providing in part that the definition of “work” means work that is for at least 15 hours a week.
Section 94 is a conjunctive section of the Act. This means that for a person to be qualified for DSP, the person must firstly have an impairment within the meaning of the Act. Secondly, the impairment, or impairments if there is more than one, must be assigned a rating of 20 or more points under the Impairment Tables. Thirdly, the person must have a continuing inability to work.
Under section 94(3B) of the Act, if a person is assigned 20 or more points under one Impairment Table, that assignment means the impairment is assessed to be a ‘severe’ impairment. If a person is assigned 20 or more points under more than one Impairment Table, then the provisions of section 94(2) of the Act apply to their claim. Sections 94(2) and 94(3C) of the Act, and the Social Security (Active Participation for Disability Support Pension) Determination 2014 set out the requirements for a person to participate in an approved program of support.
What is the relevant period for considering this claim?
The Social Security (Administration) Act 1999 provides, at clause 4(1) of Schedule 2, as follows:
If:
(a) a person (other than a detained person) makes a claim for a relevant social security payment; and
(b) the person is not, on the day on which the claim is made, qualified for the payment; and
(c) assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d) the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Applying this provision, if Mrs Ngo is found not to have been qualified for DSP on the date she lodged her claim, 29 June 2015, but she became eligible on a date within the thirteen week period thereafter, concluding on 29 September 2015, then her claim is deemed to have been made on the date she became so qualified.
I will call this timeframe from 29 June to 29 September 2015 ‘the relevant period’. The Applicant must be qualified in this relevant period for her claim of 29 June 2015 to be successful. Changes in medical conditions that occur later are not relevant to this claim, but they may be relevant to a future claim.
APPLYING THE LAW
Does the Applicant have a physical, intellectual or psychiatric impairment?
In his medical report of 25 June 2015, Dr Jimmy Hoe Nguyen, general practitioner, stated that the condition with the most impact on the Applicant was “chronic neck pain with radiculopathy (right greater than left).” He said that the diagnosis of this condition had been confirmed by Dr Olga Skibina, neurologist, and Dr Michael Wong, neurosurgeon, and that the date of diagnosis was August 2014.
Dr Nguyen stated that the Applicant also had been diagnosed with “general anxiety and major depressive disorder” with the diagnosis confirmed in June 2014 by Ms Sandra Nguyen, a psychologist.
Dr Nguyen also detailed other medical conditions of Mrs Ngo which he said were well managed and caused minimal or limited impact on her functional abilities, namely helicobacter gastritis, for which the Applicant had a gastroscopy and colonoscopy in September 2011, and bilateral carpal tunnel syndrome, which he said was confirmed by nerve conduction studies in April 2009. Although he does not mention the Applicant having headaches in the 25 June 2015 report, in another medical report for Centrelink dated 4 September 2014, Dr Nguyen lists it as a significant condition.
The Respondent Secretary accepted that the Applicant suffers from impairments as outlined above, including headaches and dizziness.
On the independent medical evidence before the Tribunal I find that Mrs Ngo had impairment in the relevant period, namely a chronic pain condition, and therefore satisfied the requirements of section 94(1)(a) of the Act.
What is the correct rating of her impairment or impairments under the Impairment Tables?
When considering how the Impairment Tables apply in a particular person’s case, the Tribunal must do so with reference to the Rules for applying the Impairment Tables set out in Part 2 of the Minister’s Determination.
Rule 6(3) provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than 2 years.
In considering whether a condition is “permanent”, Rule 6(4) requires that a condition must be fully diagnosed, fully treated and fully stabilised.
Medical and other evidence
Neck pain condition
The Tribunal had before it a report from Dr Michael Wong, neurosurgeon, dated 8 August 2014. Dr Wong stated that Mrs Ngo:
...had 10 years history of chronic neck pain and right arm pain and 1 year’s history of deterioration. Her right arm pain radiated to the level of her right forearm. This is associated with paraesthesia and numbness across all fingers of her right hand. She complains of minor symptoms on her left upper arm.
…
I have reviewed this patient’s MRI scan of the cervical spine done in June 2014. This has demonstrated disc osteophyte complex at C4/5 and C5/6 level being worst at C5/6 level with right sided foraminal stenosis and significant nerve compression. However the scan is of poor quality and I could not accurately assess the level of nerve compression at the C4/5 level. As a result, I have organised a repeat MRI scan for this patient before I recommend a significant surgical plan.
The further MRI was conducted on 11 August 2014 and the report from Dr Hayden Prime was before the Tribunal (T9). That MRI report summarised the results and concluded:
Conclusion: Severe right hand C6 neural foraminal stenosis from right lateral disc protrusion.
In her evidence, Mrs Ngo gave extensive evidence about pain she experienced. She said that the pain is overwhelming and sometimes caused her to vomit. She said that she was ‘unable to do anything because of the pain’. She said that in the morning she had to warm her neck with heat pads and that her husband helps her with most of her activities, including washing, brushing her teeth and, while she showers herself, he waits outside in case she might faint or vomit. She said she must undertake usual daily tasks such as dressing slowly and her husband would sometimes assist her as she could not stretch. The Applicant said her daughter did all the cooking and cleaning at home. She said that while she uses public transport, she cannot do so alone because she experiences vertigo and dizziness.
The Respondent asked the Applicant about the signed statement she had provided to the Tribunal given the language barrier she has with English. Mrs Ngo said that it had been prepared for her by Mr Carson but she was familiar with the contents because her daughter had advised her of what it said.
The Applicant said her neck and arm pain commenced around 2003/04 but that the pain has grown. She said that she had stopped work in 1995 because she was laid off, plus had young children; she had not stopped working because of the pain. She then said that the pain was there at that time, but not as intense.
The Applicant’s husband, Mr Troung, also gave evidence about the effect of Mrs Ngo’s medical conditions on her daily life. He said she can shower herself but he stays near at hand. He said she no longer drives, and that she can use public transport if accompanied by another person – they did travel together to the hearing by train. Mr Troung gave evidence about spinal fusion surgery Mrs Ngo underwent at Royal Melbourne Hospital and said it was successful but she still suffered from the “same pain”. He also said she had been referred for acupuncture therapy but it was not very effective as the pain comes back.
He said his wife had been referred by the Royal Melbourne Hospital to an exercise practice in Wantirna and that after 8 weeks she had ceased to participate because the exercises were movement-based and caused fainting and vomiting.
The Tribunal also had before it statements from Mr Troung (Exhibit A2), and the Applicant’s adult children Angela (Exhibit A3) and Anthony (Exhibit A4). Mr Carson expressed some frustration to the Tribunal about these documents. He said that he had emailed them to the Applicant for consideration as drafts but when he went to visit Mrs Ngo at her residence, he was presented with them, already signed.
I note that both Exhibit A3 and Exhibit A4 contain the following identical phrase:
I have been referred to and read the contents of the witness statement prepared and signed by my mother….
Given her plain challenges with English, the Tribunal does not accept that the Applicant prepared her own statement. I believe it was prepared on her behalf, and it, and the other statements in support, should have said so.
Mr Troung gave evidence in Cantonese and although he appeared at the hearing to have a better understanding of English than the Applicant did, he said in evidence that he had difficulty reading English. When asked about his own statement (Exhibit A2), he told the Tribunal that his daughter had told him what his statement contained and he agreed with her summary and so he had signed it.
The Tribunal can only give certain probative weight to statements where lay people, whether family members or not, describe what they observed in relation to a medical condition. They can only report what they see and, when as in this case the major medical contention from the Applicant relates to pain, family members (and indeed other lay people) are limited to reporting what the Applicant has said about her own pain. While I do not doubt their honesty, they do not have the professional training and expertise to give other than subjective assessment of what they observed as members of the Applicant’s household.
Rule 6(9) of the Minister’s Determination states that there is no Impairment Table dealing specifically with pain and provides for what must be considered in assessing pain. In terms of chronic pain, it states at Rule 6(9)(b):
Chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected…
It would seem to me that, if the Tribunal accepts that Mrs Ngo’s chronic pain condition is permanent, it should be assessed under Table 4 – Spinal Function. The Applicant was observed during the hearing, which went for some five hours, not to have any difficulty with head movement and, while she may have moved gingerly, did not need assistance to move around the hearing room. No evidence was advanced that she was unable to sustain overhead activities, except for her and her husband’s evidence that pain prevented her “doing anything”. She did say she showered alone, with her husband at hand. But the ‘severe chronic pain syndrome’ diagnosis was submitted to the Tribunal by the Applicant from Dr Stella Kwong, psychiatrist, after she ruled out a psychiatric cause for Mrs Ngo’s pain, and Dr Kwong first saw the Applicant well after the relevant period.
In the alternative, if I decide it would be more appropriate to assess Mrs Ngo’s chronic pain condition under Table 2 - Upper Limb Function, which is the applicable Table to be used where a person as a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms, on the basis that she reports shooting pain down her right arm, and the medical evidence of paraesthesia, it would seem to me that the medical and other evidence before the Tribunal would support a rating of 10 impairment points, that there is a moderate functional impact on activities using hands or arms.
To achieve 20 impairment points under Table 2, most of the Descriptors on page 16 of the Determination for “severe” functional impact must apply to a person, and they do not in this case.
I note that Dr Benjamin Ho, neurosurgery registrar at the Royal Melbourne Hospital, in his medical letter to Dr Nguyen dated 18 May 2015, after examining the Applicant, said:
From a pain perspective, I have advised her to continue with her regime [sic] of medications as well as continuing with her physiotherapy. The pain the patient describes does limit her to many functions of normal life. I will organise for Mrs Ngo to have a repeat CT scan and then come see us at the Clinic in one years’ time…
Mrs Ngo told the hearing that she no longer attended physiotherapy. In May 2015 her treating doctor, Dr Ho, advised her general practitioner that he had ordered a further scan and then a further visit. All of this leads me to the conclusion that this neck pain condition was not permanent in the relevant period, in terms of the meaning in the Determination, because it was not fully treated or fully stabilised as required under Rule 6.
Bilateral carpal tunnel syndrome condition
Dr Nguyen referred to the Applicant’s bilateral carpal tunnel syndrome and stated the diagnosis was confirmed by nerve conductive studies in April 2009. The Applicant said she had had a steroid injection but no release surgery. The Applicant did not think this condition, of itself, affected her functionality.
Conclusion on Upper limb functionality
Mrs Ngo’s medical conditions are clearly intermingled. She reports neck and back pain, which is verified by the MRI scans, and headaches, which may or may not be associated with the neck and back pain. She also reports difficulties with the use of her arms, which may be associated with her neck and back pain or with her carpal tunnel syndrome.
Dr Leon Lei, neurosurgical registrar at the Royal Melbourne Hospital, said in a medical letter to Dr Nguyen dated 24 November 2014, following the Applicant’s C5-C6 cervical discectomy and fusion:
She enjoyed only a brief period of pain relief in the arm following her surgery but those symptoms quickly recurred and now she has ongoing neck pain and right arm pain as well as left arm pain….
She has a good range of neck movement….Power is limited throughout globally secondary to ongoing pain.
On balance, and after careful consideration of the medical evidence of paraesthesia in her upper limbs and Dr Lei’s history, I hold that the Applicant has a condition that I am satisfied is permanent, and which has a functional impact on the use of her upper limbs. Applying the Descriptors in the Determination for Table 2, I am satisfied that Mrs Ngo has a moderate functional impairment of her upper limbs warranting the assignment of 10 impairment points.
Anxiety/depression condition
In his 25 June 2015 medical report, Dr Nguyen referred to the Applicant having “Generalised anxiety and major depressive disorder” with an onset date of June 2014 and said this condition had a confirmed diagnosis from Ms Sandra Nguyen, psychologist.
The Tribunal had before it a medical letter from Ms Sandra Nguyen to Dr Jimmy Hoe Nguyen dated 10 October 2014 in which she said Mrs Ngo had presented to her on 10 October 2014 with Generalised Anxiety Disorder and Major Depressive Disorder relating to ongoing difficulties in managing her neck and lower back pain. When assessing impairment from any mental health condition, the relevant impairment table in the Minister’s Determination is Table 5 – Mental Health Function. The Introduction to Table 5 states, inter alia:
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Dr Jimmy Nguyen is the Applicant’s general practitioner. Ms Sandra Nguyen is, according to the Australian Health Practitioner Regulation Authority, a psychologist with general registration with a counselling endorsement. Neither therefore fulfils the mandatory requirement for a diagnosis enabling assessment under Table 5 – Mental Health Function. Accordingly, without at all reflecting on their professional opinions, Mrs Ngo’s anxiety/depression condition is not able to be assigned impairment points in the relevant period because there was no corroborative diagnosis at or before the relevant period which satisfies the Determination.
The Tribunal notes that the Applicant tendered three medical reports from Dr Stella Kwong, consultant psychiatrist, dated 25 August 2016, 20 September 2016 and 12 October 2016.
On 25 August 2016, the first time she said she saw Mrs Ngo as a patient, Dr Kwong stated in a medical letter to Dr Nguyen that the diagnosis of her condition was “severe chronic pain syndrome.” She stated:
Mrs Ngo appears to suffer from genuine vertigo and neurological pain in her neck as she does respond well to Stemzine and Lyrica. However she continues to experience skeleton muscular pain despite ingestion of Panadol or Neurofen. As Mrs. Ngo never has a substance dependence problem, I m [sic] wondering if she could be a good candidate for Morphine base analgesics? A trial treatment with Endone is perhaps warranted before I proceed with reasonable anti-anxiety treatment.
On 20 September 2016, Dr Kwong says that Mrs Ngo’s current diagnosis is “Chronic depressive illness”. Twenty-two days later on 12 October 2016, Dr Kwong writes:
This is to certify that I have been Ms. Ngo’s psychiatrist since 25th August 2016. I have done a detailed psychiatric assessment and gave an opinion that Ms. Ngo suffers from a severe chronic pain syndrome.
I sought to determine if she had a delusional disorder, or underlying depression, but failed to find any.
I also did a detailed psychosocial history and could not find any psychosocial reasons or clinical feature for a conversion disorder.
Dr Kwong then discusses the Applicant’s neck pain and treatment, and says:
I concur [sic] the use of Allgron 50mg which is tricyclic antidepressant useful for relaxation and induction of sleep.
As there is no real genuine depressive illness I do not recommend an increase in dosage.
I prefer Dr Kwong’s October letter to her September ‘diagnosis’, because it was a more considered opinion based on her own professional assessment, and she found that Mrs Ngo suffered a chronic pain syndrome but not a psychiatric illness. I note that she is discussing possible courses of treatment with Dr Nguyen in her 25 August 2016 letter, which inclines me to the view that the condition is not fully treated nor fully stabilised. But in any event, the Applicant only became Dr Kwong’s patient in August 2016, well after the relevant period, so in terms of satisfying the Introduction to Table 5, I find that this is not information that is relevant for this claim. It may be relevant to a fresh claim.
Therefore, no impairment points can be assigned for the Applicant’s anxiety or depressive conditions. In terms of assessing the chronic pain condition under the Table relevant to the parts of the body impaired, Dr Kwong’s diagnosis may be relevant to a future claim.
Other medical conditions
Dr Nguyen refers to a diagnosis of helicobacter gastritis, which he said had little or no functional impact on the Applicant’s functionality. In her evidence to the Tribunal, even if it is discomforting, Mrs Ngo said that this condition does not affect her functional activities or daily life. In terms of her diagnosed condition of latent tuberculosis, the Applicant told the Tribunal she had undertaken a course of medication and this condition was “cured a long time ago”.
On the medical evidence and the Applicant’s sworn evidence, while her helicobacter gastritis and latent tuberculosis conditions satisfy the requirement of being permanent, I find that neither of these conditions results in impairment, and under Rule 11(5) of the Determination, a zero rating must be assigned in relation to them.
Previous DSP application
Mr Carson in his submissions said that the Applicant and her family could not understand how in 2012 she could be assigned 25 impairment points and now the Respondent is contending she should only be assigned 5 points.
The Tribunal makes clear that what is being reviewed is the decision about the Applicant’s DSP claim lodged on 29 June 2015. Earlier interactions with the Department are useful historical information but they may not be relevant to this claim. What is being reviewed by the Tribunal is whether the correct decision was made by Department officers regarding the 2015 claim, on the information before them. The Tribunal puts itself in the shoes of the decision-maker and, taking into account all the relevant evidence of the Applicant’s functional ability at the time of the claim or in the following thirteen weeks, decides whether the original decision was correct.
However, the Tribunal does observe that in regard to the 2012 claim, when Mrs Ngo requested a review of the Department’s decision to decline DSP on the basis that she had not undertaken a Program of Support, the then Social Security Appeals Tribunal (SSAT) found that only her carpal tunnel syndrome condition was capable of being assigned points as her other medical conditions were not fully diagnosed, fully treated and fully stabilised at that time. The SSAT allocated 5 impairment points and, at a further review, the General Division of the Administrative Appeals Tribunal agreed with the allocation of 5 impairment points.
But, as I have said, each application must be assessed on its merits and on the material before the decision-maker. I mention the 2012 application in these reasons only because it was raised several times in submissions by the Applicant and her advocate in this hearing.
Program of Support requirement
A person has actively participated in a Program of Support if they meet the requirements set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014. As Mrs Ngo has not been found to have a severe impairment of 20 points under a single Impairment Table, consideration must be given to whether she has actively participated in a program of support under section 94(3C) of the Act. There are a number of provisions in that Determination, but for the purposes of this hearing, it relevantly requires that a person will be required to participate in an approved program of support for 18 months in the 36 months preceding the date of their claim for DSP.
The Respondent accepted that Mrs Ngo had participated in a Program of Support, and the T-documents showed that. So section 94(1)(c) of the Act is satisfied.
However, for a person to be eligible for DSP, each sub-part of section 94 of the Act must be satisfied. As found above, section 94(1)(a) is satisfied – the Applicant has a permanent impairment.
Certain submissions Applicant’s advocate
At the hearing, Mr Carson raised with the Tribunal the judgement in Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Mahrous (No 2) 131 ALD 450; [2012] FCA 1275. That matter related to the period of Australian residency of a New Zealand citizen and was concerned with the Social Security (International Agreements) Act 1999 and its interaction with the Act. I do not consider it relevant to this matter.
Mr Carson also drew the Tribunal’s attention to the comments of Bromberg J in Negri v Secretary, Department of Social Services [2016] FCA 879, and in particular paragraph 44 of that judgment, in the context of urging the Tribunal to tread carefully in accepting certain contentions of the Respondent in that case. At paragraph 44, His Honour said:
The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact – no, mild, moderate, severe, or extreme – applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all of the descriptors are applicable. In such a case that impairment rating applies.
It is useful, however, to also quote the next paragraph in His Honour’s judgment:
I note, however, that where the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of its descriptors are satisfied. If on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary, or stationary nature for the continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed.
The main part of the judgement in Negri was whether a Tribunal member was permitted to expand on oral reasons when a request has been made by a party to the proceeding under section 43(2A) of the Administrative Appeals Tribunal Act 1975. However, to the extent that Mr Carson drew the Tribunal’s attention to this decision, Bromberg J does make important points, later in the judgment, about taking care in how the Determination should be applied, and in particular in relation to how an episodic or fluctuating condition should be considered.
The problem for Mrs Ngo is that while she does have a diagnosed neck condition for which she has had surgery and which on the evidence causes her sustained pain, that condition had not been fully treated or stabilised in the relevant period and so could not be regarded as permanent in fulfilling the requirements under the Determination.
Therefore, I find that 10 impairment points are correctly assigned to the Applicant at the relevant period, for her upper limb impairment.
I understand that this will be disappointing for the Applicant. However, the Tribunal must look at the evidence before the decision maker at the time of the claim and in the thirteen week period after that claim. Subsequent diagnoses by Dr Kwong cannot be taken into account. She did not see Mrs Ngo until August this year. Nor can any subsequent neurological examination by Dr Ho, planned for May 2016, unless it was directly referrable to the relevant period. It is not the function of the Tribunal to strive to knit together sufficient objective evidence for qualification for DSP. If the objective medical evidence on functional impact and ability to work to satisfy section 94 of the Act was not present in the relevant period, then the claim must necessarily fail.
All parts of section 94 must be satisfied for a person to be qualified for DSP. The regrettable outcome for Mrs Ngo is that this claim for DSP cannot succeed because at the relevant period she had not satisfied section 94(1)(b) of the Act.
DECISION
The decision that the Applicant was not qualified for DSP is affirmed.
I certify that the preceding 75 (seventy-five) paragraphs are a true copy of the reasons for the decision herein of D. J. Morris, Member ................................ [sgd]..................................
Associate
Dated 29 November 2016
Date of hearing 14 October 2016 Date final submissions received 20 October 2016 Advocate for the Applicant Mr Pat Carson Representative for the Respondent Mr Joshua Lessing Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Statutory Construction
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Procedural Fairness
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