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

Panter; Secretary, Department of Social Services and (Social services second review) [2017] AATA 743 (18 May 2017)
Division:GENERAL DIVISION
File Number: 2016/2712
Re:Secretary, Department of Social Services
APPLICANT

Victoria PanterAnd
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:18 May 2017
Place:Brisbane

The Tribunal sets aside the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review set aside
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
18 May 2017
INTRODUCTION

On 10 June 2015 Ms Panter lodged a claim for Disability Support Pension (“DSP”), listing her medical conditions as “right leg, right shoulder, diabetes, osteoarthritis” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T6, pages 60-87, Ms Panter’s Claim for DSP dated 10 June 2015.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Ms Panter’s claim was rejected by a Centrelink officer on 23 July 2015.[2] The JCA concluded that Ms Panter’s impairments did not attract 20 points or more under the Impairment Tables.[3]
[2] Exhibit 1, T Documents, T8, page 95, Centrelink Decision dated 23 July 2015.
[3] Exhibit 1, T Documents, T7, pages 88-94, Job Capacity Assessment report dated 20 July 2015.
Ms Panter then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Ms Panter’s impairments did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T13, pages 139-145, ARO Decision dated 22 January 2016.
On 9 February 2016 Ms Panter lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] On 20 April 2016, the SSCSD accepted Ms Panter’s claim and set aside the ARO’s decision.[6]
[5] Exhibit 1, T Documents, T14, page 146, Application for Review of Decision by the AAT.
[6] Exhibit 1, T Documents, T3, pages 6-11, SSCSD’s Decision and Reasons for Decision dated 20 April 2016.
The Secretary, Department of Social Services has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T2, pages 3-5, Application for Review of Decision dated 20 May 2016.
ISSUES FOR DETERMINATION
The legislation relevant to the matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Panter must have a physical, intellectual or psychiatric impairment/s.
(b)Ms Panter’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Ms Panter must have a continuing inability to work.
[my emphasis]
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Panter meets the Section 94 Requirements is the date of the claim (in this instance as at 10 June 2015), unless Ms Panter becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[9] Therefore, in order to qualify for DSP Ms Panter must have met the Section 94 Requirements between 10 June 2015 and 10 September 2015 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Panter’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[10]
DID MS PANTER HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
[11] Determination, s 3.
Ms Panter’s Medical Conditions
In April 2012 Ms Panter slipped and fell fracturing her right upper humerus and right knee. As a result of these injuries, in May 2012, Ms Panter required surgery, involving open reduction and internal fixation of both fractures. A Perlock plate was inserted in Ms Panter’s right shoulder and her right knee was splintered. An intra osseous Kirchner wire remains embedded in the patella.[12]
[12] Exhibit 1, T Documents, T9, pages 98-129, Medicolegal Reports of Dr Dickenson dated 22 April 2013 and Dr Van
Der Walt dated 26 April 2013.
Dr R C Bierman, General Practitioner, reported in June 2015 that the injury to her right shoulder and knee limits her mobility and that she had difficulty standing or negotiating steps or inclines.[13]
[13] Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015.
Dr Bierman described Ms Panter’s medical conditions in medical certificates:
(a)in December 2015 as “chronic pain right knee and right shoulder”;[14] and
(b)in January 2016 as “chronic pain right knee and right shoulder and arm/hand”;[15]
[14] Exhibit 1, T Documents, T11, page 137, Medical Certificate completed by Dr Bierman dated 2 December 2015.
[15] Exhibit 1, T Documents, T12, page 138, Medical Certificate completed by Dr Bierman dated 8 January 2016.
In April 2016 Dr Bierman provided a report stating that since April 2013, Ms Panter’s impairments and the ongoing pain and medication causes significant drowsiness and nausea and prevents Ms Panter from working even 15 hours/week.[16]
[16] Exhibit 1, T Documents, T15, pages 147-150, Report by Dr Bierman dated 15 April 2016.
Ms Panter indicated in her DSP Application that her Claimed Medical Conditions do not make it difficult for her to use public transport or to care for herself.[17]
[17] Exhibit 1, T Documents, T6, at page 85, Ms Panter’s Claim for DSP dated 10 June 2015.
A JCA was conducted face-to-face with Ms Panter on 29 October 2015 by a Registered Occupational Therapist. The JCA assessors’ report confirmed that Ms Panter suffered from the following medical conditions:[18]
·Fracture of the right shoulder (which was found to be fully diagnosed, fully treated and fully stabilised)
·Comminuted fracture of the right patella with severe displacement of the fragments (which was found to be fully diagnosed, fully treated and fully stabilised)
·Diabetes (which was found to be fully diagnosed, fully treated and fully stabilised)
[18] Exhibit 1, T Documents, T10, pages 129-136, Job Capacity Assessment report dated 29 October 2015.
The Secretary accepts that Ms Panter had Impairments which satisfied section 94(1)(a) during the Qualification Period.[19] I am satisfied on the medical evidence that that is correct.
[19] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, at para 31.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Ms Panter suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
(a)Right Shoulder Impairment;
(b)Right Knee Impairment; and
(c)Diabetes.
DO MS PANTER’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[20] They are function based[21] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[22]
[20] Determination, ss 4(2) and 5(2)(a).
[21] Determination, s 5(2)(b) and (d).
[22] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[23]
(a)the 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.
[23] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[24]
[24] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Ms Panter’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[25]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[25] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[26] the following is to be considered:[27]
(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.
[26] For the purposes of ss 6(4)(a) and (b) of the Determination.
[27] Determination, see s 6(5).
A condition is fully stabilised[28] if:[29]
(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;[30] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[28] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[29] Determination, see s 6(6).
[30] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
RIGHT SHOULDER IMPAIRMENT
Is Ms Panter’s Right Shoulder Impairment permanent and likely to persist?
A JCA concluded that Ms Panter’s Right Shoulder Impairment was fully diagnosed, fully treated and fully stabilised.[31] The JCA reported that Ms Panter had undergone 3 surgical procedures following her accident and then had physiotherapy treatment until 2014.
[31] Exhibit 1, T Documents, T10, pages 129-136, Job Capacity Assessment report dated 29 October 2015.
Dr Bierman reported that there was no further treatment available and that the impact of Ms Panter’s Right Shoulder Impairment on her ability to function is expected to persist for more than 24 months and remain unchanged.[32]
[32]Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015; T15, pages 147-150, Report by Dr Bierman dated 15 April 2016.
Dr Dickinson, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter’s functional ability resulting from her Right Shoulder Impairment is “not likely to deteriorate or to improve” and that there is no appropriate operative procedure or treatment available.[33]
[33] Exhibit 1, T Documents, T9, pages 98-114, Report of Dr Dickenson dated 22 April 2013.
Dr Van Der Walt, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter’s Right Shoulder Impairment was stable and stationary and that he does “not believe that she requires any further surgical treatment”.[34]
[34] Exhibit 1, T Documents, T9, pages 115-126, Report of Dr Van Der Walt dated 26 April 2013.
The Secretary accepts that Ms Panter’s Right Shoulder Impairment was fully diagnosed, fully treated and fully stabilised.[35]
[35] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, at para 32.
Based on the medical evidence, I find, that for the purposes of the legislation and the requirement that Ms Panter becomes qualified within the Qualification Period, Ms Panter’s Right Shoulder Impairment is permanent and an Impairment Rating can be assigned.
Using the Impairment Tables
I have to assess the level of impact of Ms Panter’s Right Shoulder Impairment against the descriptors[36] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[37]
[36]Determination, see ss 3 and 5(3).
[37] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[38]
[38] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[39]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[39] Determination, see s 7.
I must not take into account the following information in applying the Tables:[40]
1symptoms reported by Ms Panter in relation to her condition where there is no corroborating evidence;
2unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Panter’s local community.
[40] Determination, see s 8.
Which Tables are appropriate are determined by:[41]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[41] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[42]
[42]Determination, see s 10(3).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[43]
[43]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[44]
[44]Determination, see s 11(5).
Evidence Identifying the Loss of Function
The corroborating medical evidence identifying the impact on Ms Panter’s ability to function as a result of her Right Shoulder Impairment is provided by Dr Bierman, Dr Dickinson and Dr Van der Walt.
Dr R C Bierman, General Practitioner, reported in June 2015 that the injury to her right shoulder limits her mobility.[45]
[45] Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015.
In April 2016 Dr Bierman provided a report stating that since April 2013, Ms Panter’s impairments and the ongoing pain and medication causes significant drowsiness and nausea and prevents Ms Panter from working even 15 hours/week.[46]
[46] Exhibit 1, T Documents, T15, pages 147-150, Report by Dr Bierman dated 15 April 2016.
In 2013 Dr Dickinson, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter reported:[47]
[47] Exhibit 1, T Documents, T9, pages 98-114, Report of Dr Dickenson dated 22 April 2013.
·She was able to manage housework but struggles with heavy work;
·She cannot clean high up;
·She can drive a car short distances but with pain;
·She cannot put on a back fastening bra and it is difficult to put clothes over her head;
·She has difficulty with her personal hygiene because of the stiffness in her right shoulder;
·She is unable to cast a fishing rod (an activity she used to enjoy);
·She has pain radiating from the shoulder to the elbow;
·It hurts her to twist her arm;
·Her arm hurts at night;
·She cannot lift her arm overhead.
Dr Dickinson assessed Ms Panter as having a 10% whole person impairment as a result of her Right Shoulder Impairment.
In 2013 Dr Van Der Walt, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter reported:[48]
·She cannot clean high up;
·She cannot put on a back fastening bra and it is difficult to put clothes over hear head;
·She has difficulty with her personal hygiene;
·She is unable to cast a fishing rod (an activity she used to enjoy);
·She has pain in her shoulder;
·Her arm hurts if she sleeps on it at night;
·She cannot lift her arm overhead.
[48] Exhibit 1, T Documents, T9, pages 115-126, Report of Dr Van Der Walt dated 26 April 2013.
Dr Van Der Walt assessed Ms Panter as having a 9% whole person impairment as a result of her Right Shoulder Impairment.
The JCA reported that as a result of her Right Shoulder Impairment Ms Panter:[49]
[49] Exhibit 1, T Documents, T10, page 132, JCA Report dated 29 October 2015.
·Suffers from pain, reduced function and limited movement of her right arm;
·Can manage most daily activities but has difficulty:
oPicking up heavier objects (e.g. a 2-litre liquid carton or a full shopping bag);
·Unable to lift more than light shopping/milk bottle;
·Is unable to clean up high;
·Is unable to bend down to get washing out of her front loader washing machine;
·Cannot put on a back fastening bra;
·Has difficulty putting clothes over her head;
·Has difficulty with personal hygiene;
·Cannot reach over shoulder height;
·Reaching across her body to do up her left shoelace causes pain;
·Has difficulty reaching into lower cupboards;
·Has difficulty driving more than 10-15 minutes;
·Is reliant on her left arm to complete most self-care tasks;
·Prolonged stirring while cooking cause pain;
·Is unable to lift items into the oven;
·Maintained arm position, such as while writing, causes pain after 10 minutes.

In August 2016 the Secretary arranged for Ms Panter to be examined by Dr Keith Adam, an Occupational and Environmental Physician. Dr Adam was asked by the Secretary to provide a report setting out what, in Dr Adam’s opinion, would be an appropriate impairment rating in relation to Ms Panter’s shoulder and knee impairments. Dr Adam provided his report on 7 September 2017.[50] At the hearing, I queried the relevance and weight that could be given to this report given that Dr Adam did not examine Ms Panter until nearly 12 months after the Qualification Period. Dr Adam gave evidence at the hearing that given the nature of Ms Panter’s Impairments, her symptoms at the date of his assessment would have been similar to those she experienced during the Qualification Period.
[50]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, Attachment A, Report of Dr Adam dated 7 September 2017.
Ms Panter did not appear at the hearing due to a misunderstanding on her end as to the time it was to commence. However, after the hearing, Ms Panter provided written submissions.[51] In those submissions, Ms Panter questions whether Dr Adam was appropriately qualified to examine her and disputed a lot of Dr Adam’s report And submitted the following passages of Dr Adam’s report were incorrect:[52]
[51] Submissions of Ms Panter dated 7 April 2017.
[52] Submissions of Ms Panter dated 7 April 2017.
·I find Dr Adam's report to be littered with inaccuracies and mistakes to the extent that on page 8 /4.3 (a) 1. he seems to be actually referring to the wrong leg .
·On page 4 under lower limbs,Dr Adam's suggests I said the pain in my right leg (is not to bad) this is not so and is reflected by the cocktail of pain killers I have to take.
·It is mentioned that I prefer to use a walking stick outside, as if I have a choice ,the only choice would be a mobility scooter or wheel chair . Further down ,she finds steps easier to negotiate than ramps ,not so ,a few steps 3-4 are easier than a long ramp ,both are difficult .
·Page 12 The chair I rose from in Dr Adam's office with the aid of my stick was a office/dinning room style chair , as said before I can manage these with difficulty with the aid of my stick . As for Dr Adam's opinion that I could walk into a shopping centre without assistance , I could could not disagree more, this is not my opinion or that of my GP, as said I do not leave the house without my husband or another family member for support.
·Dr Adam's by his on admission at the bottom of page 8/9 has said I have significant degenerative arthritis that will only get worse over time .
·At the top of page 5 under the heading examination Dr Adams has a range of measurements to do with movement of the affected limbs , please compare these with the same measurements done by the consultant othopaedic surgeons as they differ by a large amount . When Dr's Dickinson and Van Der Walt carried out these measurements they used a piece of apparatus resembling a T square and a protractor joined together made of a clear acrylic with measurements on it . This was held against my back and side to take the measurements and angles , this was repeated on my leg. Dr Adam's used nothing at all ,he forced my arm and leg until I was in pain and measured nothing ,I therefore fail to see how he could possibly arrive at any conclusive figures. He also suggests that I stepped down a 75 mm step leading with my left leg , this is not the case my injury's do not allow this ,I must always lead with my right leg and stick to take my weight.
·Page 5 4.2(C) Dr Adam's answered a centrelink question saying he would expect to see an improvement after 4years , this is totally opposite to what the 2 surgeons Nambour Hospital consultant Dr George Parker and my GP have said they have made it quite clear these injury's will not improve, but only get worse as arthritis sets in .
·Page 6(C) Dr Adam's answered a question saying I experience more pain than he would expect, with respect this is an opinion ,that myself and everyone else involved with my case does not shares with the exception of centrelink , as he must know people react different with different injury’s , it is the opinion of orthopaedic consultants and my GP that my pain is totally consistent with having a 230mm piece of steel bolted to my shoulder and arm .
·Page 7 Dr Adam's suggests that I should be able to learn to write with my left hand in order to work as a receptionist or in a call centre . I am 57 years old , I see no time frame as to how long this would take, no options for training, and all clerical and reception work is done by computer these day's , I have explored this with Mission Australia disabled job provider ,and have been told this would not be an option as I have no computer skills ,or the ability to use a keyboard to learn any, and no courses would be available to me because of my disabilites.
·At the end of the day I have been right handed all my life , any task with my left hand is awkward and inefficient ,this is common sense . No I can not unscrew a jar if it is a new one, one that has already been opened then possibly with difficulty, yes I could possibly lift a 1 ltr carton of milk off the kitchen bench but I think there would be as much on the bench as in the cup should I try to pour it.
·Page 8 Dr Adam's seems to have the opinion that I could do most of the tasks in the descriptors for ten points, I could not disagree with his opinion more , I believe all tasks listed would be difficult if not impossible. I have considered what I can do with my left arm and I have adapted to doing small things around the house with my left hand , but this is a far cry from going out and performing tasks repetatively in the work place.
It appears that Ms Panter prefers the Tribunal rely on the opinions of Dr Dickinson and Dr Van Der Walt than that of Dr Adam.
I indicated to both parties that the hearing should be resumed so that Ms Panter’s assertions could be put to Dr Adam. Neither Ms Panter nor the Secretary wished the hearing to be resumed. In particular, and understandably, the Secretary was reluctant to call Dr Adam due to the expense that would entail.
While the Tribunal is appreciative of the time Dr Adam gave in giving evidence to the Tribunal and I am satisfied that Dr Adam’s evidence that Ms Panter’s symptoms at the date of his assessment would have been similar to those she experienced during the Qualification Period, I do not consider it necessary to have regard to his report in order to assess the functional impacts of Ms Panter’s Impairments. Further, I am reluctant to give weight to Dr Adam’s report given Ms Panter’s disagreements with it and Dr Adam not having been given an opportunity to respond.
Ms Panter also sets out in her written submissions of 7 April 2017 how she says her Right Shoulder Impairment impacts on her ability to function as follows:[53]
I have 230 mm of steel and 12 bolts in my right shoulder and humerus , the nerve pain from this runs down to my fingers , Holding my arm in a writing or keyboard position creates pain and can only be sustained for a few minutes , I am computer eliterate . We have had alterations done to our home eg grabrails , lowered washing lines, workbenches etc , but my husband does all heavy duty’s eg vacuuming making /changing beds, cooking with heavy pots etc. On a personal level I can shower myself , however I do have trouble with drying lower legs , feet and hair , as with dressing putting on underwear ,bra, tight ,cloths ,shorts ,socks ,shoes etc . I have adapted to do certain things with my left arm, but this is limited due to the condition of my right arm, I can not use both arms together to pick up small or large items ,I can not pick up items off the floor, I can move small items with my left arm at waist height to another waist height position. Due to my disability being all down the right hand side of my body makes it very difficult to complete most tasks as I am always of balance with myself.
[53] Submissions of Ms Panter dated 7 April 2017.
However, the difficulty I have with this evidence is that Ms Panter is describing her condition as at April 2017 which is 18 months after the Qualification Period. Ms Panter did not dispute the JCA report or the reports of Dr Dickinson or Dr Van Der Walt. Given that these reports describe Ms Panter’s functional ability prior to or shortly after the Qualification Period, they are to be preferred for the purpose of assigning an impairment rating.
The question, therefore, is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence, I consider that Table 2 of the Determination which deals with Upper Limb Functions is the relevant Table.
Table 2 – Upper Limb Function
The introduction to Table 2 provides that:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submitted that the appropriate Impairment Rating under Table 2 is 5 points.[54]
[54]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, at para 39.
In order to assign an Impairment Rating of 5 points under Table 2 the evidence would need to show that Ms Panter’s Right Shoulder Impairment was having a “mild” functional impact and that Ms Panter can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
In order to assign an Impairment Rating of 10 points under Table 2 the evidence would need to show that Ms Panter’s Right Shoulder Impairment was having a “moderate” functional impact and that Ms Panter has difficulty with most of the following:
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
In order to assign an Impairment Rating of 20 points under Table 2 the evidence would need to show that Ms Panter’s Right Shoulder Impairment was having a “severe” functional impact and that most of the following apply to Ms Panter:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)the person has difficulty using a computer keyboard despite appropriate adaptations;
(d)the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
Based on the evidence I consider that Ms Panter’s Right Shoulder Impairment falls between a 5 and 10 point rating. If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[55]
[55]Determination, see s 11(1)(c)
Therefore I assign an Impairment Rating of 5 points under Table 2 to Ms Panter’s Right Shoulder Impairment.
RIGHT KNEE IMPAIRMENT
Is Ms Panter’s Right Knee Impairment permanent and likely to persist for at least 2 years?
A JCA concluded that Ms Panter’s Right Knee Impairment was fully diagnosed, fully treated and fully stabilised.[56] The JCA reported that Ms Panter had undergone surgical procedures following her accident and takes celebrex and paracetamol for the pain.
[56] Exhibit 1, T Documents, T10, pages 129-136, Job Capacity Assessment report dated 29 October 2015.
Dr Bierman reported that there was no further treatment available and that the impact of Ms Panter’s Right Knee Impairment on her ability to function is expected to persist for more than 24 months and remain unchanged.[57]
[57]Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015; T15, pages 147-150, Report by Dr Bierman dated 15 April 2016.
Dr Dickinson, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter’s functional ability resulting from her Right Knee Impairment will “continue to cause her significant disability” and that it is “likely that Ms Panter will require a knee replacement if she persists in having the discomforts that she has”.[58]
[58] Exhibit 1, T Documents, T9, pages 98-114, Report of Dr Dickenson dated 22 April 2013.
Dr Van Der Walt, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter’s Right Knee Impairment was stable and stationary and that he did “not believe that she requires any further surgical treatment”.[59] Dr Van Der Walt did not consider Ms Panter to be a good candidate for total knee replacement at that stage given that she was only 53 years.
[59] Exhibit 1, T Documents, T9, pages 115-128, Report of Dr Van Der Walt dated 26 April 2013 and 22 May 2013..
The Secretary accepts that Ms Panter’s Right Knee Impairment was fully diagnosed, fully treated and fully stabilised.[60]
[60] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, at para 44.
Based on the medical evidence, I find, that for the purposes of the legislation and the requirement that Ms Panter becomes qualified within the Qualification Period, Ms Panter’s Right Knee Impairment is permanent and an Impairment Rating can be assigned.
Evidence Identifying the Loss of Function
The corroborating medical evidence identifying the impact on Ms Panter’s ability to function as a result of her Right Knee Impairment is provided by Dr Bierman, Dr Dickinson and Dr Van der Walt.
Dr R C Bierman, General Practitioner, reported in June 2015 that the injury to her right knee limits mobility and that she had difficulty standing or negotiating steps or inclines.[61]
[61] Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015.
In April 2016 Dr Bierman provided a report stating that since April 2013, Ms Panter’s impairments and the ongoing pain and medication causes significant drowsiness and nausea and prevents Ms Panter from working even 15 hours/week.[62]
[62] Exhibit 1, T Documents, T15, pages 147-150, Report by Dr Bierman dated 15 April 2016.
In 2013 Dr Dickinson, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter reported:[63]
·She is able to drive short distances but her knee aches and is stiff and she has trouble when is changing peddles;
·She can no longer go for walks on the beach;
·She can only walk for 20-30 minutes before having pain and becoming stiff;
·She can only go upstairs a few at a time and can only lead with her left leg going up and the right leg going down;
·She feels gross crepitus under her right patella;
·She needs a walking stick on uneven surfaces and going up or down a hill.
[63] Exhibit 1, T Documents, T9, pages 98-114, Report of Dr Dickenson dated 22 April 2013.
Dr Dickinson assessed Ms Panter as having a 5% whole person impairment as a result of her Right Knee Impairment.
In 2013 Dr Van Der Walt, Orthopaedic Surgeon, reported in a medicolegal report that Ms Panter reported:[64]
·Her knee is painful with stiffness;
·It is hard to drive as she cannot quickly change peddles;
·Sitting with her knee in a flexed position develops increased symptoms after 10 minutes;
·If she walks more than 30 meters her knee becomes very painful;
·Difficulty walking down a ramp;
·She uses the balustrade when walking down steps;
·Using walking stick on uneven surfaces and on hills;
·She can longer go for walks on the beach.
[64] Exhibit 1, T Documents, T9, pages 115-126, Report of Dr Van Der Walt dated 26 April 2013.
Dr Van Der Walt assessed Ms Panter as having a 4% whole person impairment as a result of her Right Knee Impairment.
The JCA reported that as a result of her Right Knee Impairment Ms Panter reported:[65]
·She has pain, limited mobility;
·Difficulty standing;
·Difficulty negotiating steps and inclines;
·She was unable to stand more than 5 minutes;
·Uses a stool in the kitchen and shower;
·Uses a walking stick on uneven surfaces and on hills;
·She is unable to kneel or squat;
·She has a disability parking permit.
[65] Exhibit 1, T Documents, T10, page 133, JCA Report dated 29 October 2015.
The JCA reported that Ms Panter was observed to be able to rise from a seat independently and could walk across the waiting room using a walking stick and altered gait.
In Ms Panter’s written submissions of 7 April 2017 she says her Right Knee Impairment impacts on her ability to function as follows:[66]
I can not drive a car , I can not use public transport on my own, that is infrequent and 1.5 Klm from my home . My right leg frequently locks or gives way and the joint is stiff at all times, at home I tend to navigate rooms with my left hand on walls or furniture , I am able to rise from dinning room style chairs with difficulty using my stick, however I can not rise from lounge sofa style chairs, I have recently purchased a lazyboy liftchair to over come this problem. when leaving the house I walk with the aid of a walking stick at all times , I never leave the house on my own ,I always hold my husbands arm for balance, I am unable walk on uneven surfaces eg grass, gravel, sand etc . I have great difficulty walking up or down inclines , and can only manage a few steps even with help from my husband . I can only walk apx 50m at a time maybe a little more on a good day without a rest, standing in one place is even harder and after only a few minutes have to sit down , like wise with remaining in one position to long ,I often wake up in the night with pain in both my leg and arm .I do go grocery shopping with my husband every two weeks but rest frequently and always sit down as my husband completes the shopping .
[66] Submissions of Ms Panter dated 7 April 2017.

Again, the difficulty with this evidence is that it Ms Panter is describing her condition as at April 2017 which is 18 months after the Qualification Period. Ms Panter did not dispute the JCA report or the reports of Dr Dickinson or Dr Van Der Walt. Given that these reports describe Ms Panter’s functional ability prior to or shortly after the Qualification Period, they are to be preferred for the purpose of assigning an impairment rating.
The question, therefore, is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence, I consider that Table 3 of the Determination which deals with Lower Limb Function is the relevant Table.
Table 3 – Lower Limb Function
The introduction to Table 3 provides that:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submitted that the appropriate Impairment Rating under Table 3 is 10 points.[67]
[67]Exhibit 2, Secretary’s Statement of Facts and Contentions dated 22 December 2016, at para 44.
In order to assign an Impairment Rating of 10 points under Table 3 the evidence would need to show that Ms Panter’s Right Knee Impairment was having a “moderate” functional impact and that at least one of the following applies:
(a)[Ms Panter] is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)[Ms Panter] is unable to use stairs or steps without assistance; or
(c)[Ms Panter] is unable to stand for more than 5 minutes; and
·Ms Panter is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
An impairment rating of 10 points includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
In order to assign an Impairment Rating of 20 points under Table 3 the evidence would need to show that Ms Panter’s Right Knee Impairment was having a “severe” functional impact and she was unable to do any of the following:
(a)walk around a shopping centre or supermarket without assistance;
(b)walk from the carpark into a shopping centre or supermarket without assistance;
(c)stand up from a sitting position without assistance; and
(d)requires assistance to use public transport.
The evidence available does not support an impairment rating of 20 points.
The evidence available indicates that Ms Panter can drive a car and is unable to stand for more than 5 minutes.
The evidence supports an Impairment Rating of 10 points under Table 3.
The Member in the SSCSD decision assigned an Impairment Rating of 20 points on the basis that Dr Bierman reported 20 points was appropriate and because of the impact of her chronic pain. However, in Dr Bierman’s report of 15 April 2016 he does not report how he arrived at a 20 point rating and gives no indication of the functional impact.[68] In relation to the impact of the chronic pain, the Member did not explain how this affected the Impairment Rating. Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(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; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
[68] Exhibit 1, T Documents, T15, pages 147-150, Report by Dr Bierman dated 15 April 2016
I have found that the condition causing the pain, the Right Knee Impairment, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating of 10 points to that condition. There is no corroborating medical evidence that this Impairment attracts a 20 point rating.
DIABETES IMPAIRMENT
Is Ms Panter’s Diabetes Impairment permanent and likely to persist for at least 2 years?
In relation to Ms Panter’s diabetes, Dr Bierman reported that this condition was well managed and caused minimal or limited impact on Ms Panter’s ability to function.[69] This was confirmed by Ms Panter at the JCA.[70]
[69] Exhibit 1, T Documents, T5, pages 49-59, DSP Medical Report by Dr Bierman dated 2 June 2015.
[70] Exhibit 1, T Documents, T10, pages 129-136, Job Capacity Assessment report dated 29 October 2015.
There is no evidence that this condition is causing any functional impact and as a result a zero rating must be assigned.[71]
[71]Determination, see s 11(5).
CONCLUSION
As I have concluded that Ms Panter’s Impairments do not attract a total Impairment Rating of 20 points during the Qualification Period it is unnecessary for me to consider whether Ms Panter had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Ms Panter’s claim fails because she did not qualify for DSP during the Qualification Period under s 94(1)(b).
The decision under review is set aside.

I certify that the preceding 98 (ninety-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[Sgd]............................................
Associate
Dated: 18 May 2017

Date of hearing: 6 April 2017

Date final submissions received: 26 April 2017

Advocate for the Applicant: Mr Rick McQuinlan

Solicitors for the Applicant: Department of Human Services

Respondent: Non Appearance (Submissions in writing)

[2017] AATA 743

18 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	6 April 2017
Date final submissions received:	26 April 2017
Advocate for the Applicant:	Mr Rick McQuinlan
Solicitors for the Applicant:	Department of Human Services
Respondent:	Non Appearance (Submissions in writing)