Perich and Secretary, Department of Social Services (Social services second review)
[2018] AATA 963
•19 April 2018
Perich and Secretary, Department of Social Services (Social services second review) [2018] AATA 963 (19 April 2018)
Division:GENERAL DIVISION
File Number: 2017/0497
Re:Brenda Lynn Perich
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Senior Member Dr M Evans
Date:19 April 2018
Place:Perth
The AAT Tier 1 Decision of 19 January 2017 is affirmed.
.....[sgd]...................................................................
Deputy President S Boyle
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits - disability support pension – whether the applicant has an impairment rating of 20 points or more under Impairment Table 4 and a continuing inability to work – degenerative spinal condition – AAT Tier 1 decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 33(1)(c)
Social Security Act 1991(Cth) - s 23(1), s 26, s, 94(1), s 94(1)(a), s 94(1)(b), s 94(1)(c)(i), s 94(2), s 94(2)(aa), s 94(3)(c), s 94(5)
Social Security (Administration) Act 1999(Cth) - Schedule 2, subclause 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) - Table 4, s 3, s 5(2), s 5(2)(b), s 5(2)(c), s6, s 6(4), s 11(1)(a)
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1; [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
Re Crossland and Secretary, Department of Family and Community Services [2004] AATA 864
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
Re Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
Redmond and Secretary, Department of Employment and Workplace Relations [2007] AATA 1066
Secretary, Department of Social Security v Pusnjak [1999] FCA 994
SECONDARY MATERIALS
Freckelton I and Selby H, Expert Evidence: Law Practice, Procedure and Advocacy (5th ed), Thomson Reuters Lawbook Co, 2013
REASONS FOR DECISION
Deputy President S Boyle
Senior Member Dr M Evans
19 April 2018
BACKGROUND
The Applicant is 56 years of age. She currently receives the Newstart Allowance. The Applicant last worked in March 2015 as a bar manager, and previously had a 30 year career as a conveyancer until approximately 2013.
The Applicant was diagnosed with a permanent and degenerative medical condition, namely “multi-level disc disease of the lower back” and “cervical spondylosis” (Exhibit R2, Medical Certificate from Dr Richard Turner dated 8 December 2015, page 219). These conditions will collectively be referred to as the “degenerative spinal condition”.
On 16 June 2016, the Applicant made a claim for a Disability Support Pension (DSP) with the Department of Human Services (Centrelink) (T47). This claim was denied on 22 July 2016 (T49). The Applicant sought to have the decision reviewed, but the review was unsuccessful with an Authorised Review Officer of Centrelink affirming the decision on 29 September 2016 (T53).
The Applicant subsequently sought review of the decision of the Authorised Review Officer by the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1). On 19 January 2017, the AAT Tier 1 affirmed the decision of the Authorised Review Officer (AAT Tier 1 Decision) (T2).
The Applicant is now seeking review of the AAT Tier 1 Decision of 19 January 2017.
THE ISSUES
The overall issue for determination by this Tribunal is whether the Applicant met the criteria in s 94(1) of the Social Security Act 1991(Cth) (the Act) in order to qualify to receive a DSP.
A number of the Applicant’s medical conditions were considered in the AAT Tier 1 Decision. However, in her response to the Respondent’s Statement of Facts and Contentions (Exhibit A6, letter from Applicant dated 1 November 2017) the Applicant stated, “…I was surprised at all the health issues that have been investigated in “Statement”, when my Multi Level Degenerative Disease is the ONLY health issued (sic) I am claiming for in my Application for the DSP.” At the hearing the Respondent agreed with the Applicant that the degenerative spinal condition would be the only medical condition relevant to her DSP claim.
The Respondent accepted that this condition was a “physical impairment”, and consequently, that s 94(1)(a) of the Act was satisfied. The Respondent also accepted that the Applicant’s degenerative spinal condition was “permanent” because it was “fully diagnosed, fully treated and fully stabilised” as required by subsection 6(4) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (Impairment Tables) (Exhibit R1, paragraph 14 of the Respondent’s Statement of Facts and Contentions).
The Respondent contends that ss 94(1)(b) and 94(1)(c)(i) of the Act have not been satisfied, and that the Applicant is therefore not eligible to receive a DSP.
Consequently, the specific issues before the Tribunal are:
(a)whether the Applicant’s impairment rating under Table 4 of the Impairment Tables was “moderate” (warranting an allocation of 10 points) or “severe” (warranting an allocation of 20 points), at the date the Applicant lodged her claim, or otherwise during the qualification period; and
(b)if the Applicant’s impairment rating is 20 impairment points or more, whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act to determine whether she was eligible to receive DSP.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 22 February 2018. The Applicant appeared by telephone and was self-represented, with Ms Selene Bennett as her support person. The Respondent was represented by Mr Christopher Bishop from Mills Oakley Lawyers who appeared in person. Oral submissions were made by both parties. The Applicant also gave oral evidence to the Tribunal.
The following documentary material was before the Tribunal:
(a)an email from the Applicant to the Tribunal dated 17 March 2017 with the following attachments: letter from Dr Jansz dated 1 March 2017; current x-ray of neck, dorsal and hip; outdated x-ray of neck, dorsal and hip; MRI image of frontal view of lumbar region; MRI image of side view of lumbar region; and MRI Report dated 11 November 2016 (Exhibit A1);
(b)an email from the Applicant to the Tribunal and others dated 12 April 2017 with the following attachments: a letter from Dr Jansz dated 7 April 2017; a letter from Dr Hugh Won dated 9 November 2009; a letter from Dr Robert Mason dated 9 November 2009; one page from a Job Capacity Report with a “submit date” of 18 July 2016 and a letter from Dr Richard Turner dated 15 September 2016 (Exhibit A2). The letter from Dr Won is marked “copy received is of poor quality: RMU Victoria”;
(c)an email from the Applicant to the Tribunal and others dated 23 April 2017 attaching a copy of her ACROD Disability Parking Permit which has an expiry date of 30 April 2019 (Exhibit A3);
(d)an email from the Applicant to the Tribunal and others dated 20 July 2017 with the following attachments: clinical notes from 26 May 2015 to 1 June 2017 from Barry Critchison, Psychologist; letters dated 7 September 2015, 7 February 2017 and 7 June 2017 from Mr Critchison; Silver Chain progress notes from 30 March 2016 to 15 July 2017; and Garuda Indonesia Standard Medical Information Form for Air Travel signed by Dr Charles T Jansz dated 6 June 2017 (Exhibit A4);
(e)an email from the Applicant to the Tribunal and others dated 28 September 2017 containing a chain of emails and attaching an Employment Services Assessment Report dated 27 July 2017 (Exhibit A5);
(f)an email from the Applicant to the Tribunal and others dated 6 November 2017 with the following attachments: a letter from the Applicant dated 1 November 2017 in response to the Respondent’s Statement of Facts and Contentions; an email dated 6 November 2017; a letter from Dr Jansz dated 31 October 2017 and a copy of an ACROD Disability Parking Permit which has an expiry date of 30 April 2019 (being the same permit as in Exhibit A3) (Exhibit A6);
(g)the Respondent’s Statement of Facts, Issues and Contentions dated 29 September 2017 with Annexures A and B. Annexure A is a report for the Centrelink Health Professional Advisory Unit by Dr Christopher G Minogue dated 25 September 2017. Annexure B is a supplementary report for the Centrelink Health Professional Advisory Unit dated 29 September 2017 which addresses questions from the Respondent relating to “chronic pain” (Exhibit R1);
(h)the Respondent’s s 37 documents (T1 – T58) (Exhibit R2);
(i)the Respondent’s supplementary s 37 documents (ST1 – ST43) (Exhibit R3); and
(j)an email from the Respondent’s Legal Services Division dated 5 July 2017 attaching Job Plan Information for the Applicant dated 3 July 2017. These documents were not accepted into evidence but were marked Exhibit R4.
The Tribunal has considered all the material before it as well as the parties’ submissions, and the oral evidence of the Applicant. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
THE LEGISLATION
Qualification for DSP
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)The person has a continuing inability to work; …
Section 23(1) of the Act defines “Impairment Tables” to mean, “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26 Impairment Tables and rules for applying them
Impairment Tables
(1) The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3) The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4) An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1) 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.
Applying the Tables
(2) The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3) An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
…
(b) the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years...
Subsection 5(2) of the Impairment Tables states:
Purpose and general design principles
(2) The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Whether a condition is “permanent” is outlined by s 6(4) of the Impairment Tables, which states:
(4) … a condition is permanent if:
(a) the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b) the condition has been fully treated; and
…
(c) the condition has been fully stabilised; and
…
(d) the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Subsection 11(1)(a) of the Impairment Tables states:
(1) In assigning an impairment rating:
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b) a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) 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; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
“Table 4 – Spinal Functions” is the Table that is relevant to the Applicant’s claim for a DSP, and is discussed in more detail below under the heading “Impairment Rating”.
Subsection 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(a) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) …
(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.
It is noted that s 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore if an applicant has a severe impairment they will not be required to undertake a program of support.
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i)is funded (wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Subsection 94(5) of the Act continues on to define “Work” as follows:
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.
Qualification Period
Schedule 2, s 4(1), of the Social Security (Administration) Act 1999(Cth) (Administration Act) provides for a 13 week qualification period from the date of claim:
(1) 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.
Consequently, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility.
The Applicant lodged her claim for a DSP on 16 June 2016. Consequently, the qualification period is 16 June 2016 until 15 September 2016 (the qualification period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during this period. In Gallacher v Secretary, Department of Social Services [2015] FCA 1123 (Gallacher), Besanko J (at paras [26] and [28]) stated that he agreed with the following statement from the judgment of Gyles J (at [1]) in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at paras [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466 at 473:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
IMPAIRMENT RATING
As noted above, the Applicant contends that, during the qualification period, her degenerative spinal condition was “severe” and should be awarded an impairment rating of 20 points under “Table 4 – Spinal Function” of the Impairment Tables. The Respondent contends that the Applicant’s degenerative spinal condition was “moderate” and should be awarded an impairment rating of 10 points.
Table 4 of the Impairment Tables defines a “moderate” impairment as:
There is a moderate functional impact on activities involving spinal function.
(1)The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
A “severe” impairment is defined by Table 4 of the Impairment Tables as:
There is a severe functional impact on activities involving spinal function.
(1)The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
It is also relevant to note the “Introduction to Table 4” which states:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·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 purpose 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 commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury…
To determine whether, during the qualification period, the Applicant’s degenerative spinal condition warranted a moderate or severe functional impact rating, the Tribunal must undertake a “function based” (s 5(2)(b) Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) Impairment Tables) based on the medical evidence before the Tribunal.
Specifically, the Tribunal must review the medical evidence to assess whether “the person [the Applicant] has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder)” which is indicative of a “moderate functional impact” and a rating of 10 points, or whether “the person [the Applicant] is unable to turn their head, or bend their neck, without moving their trunk” which is indicative of a “severe functional impact” and a rating of 20 points.
MEDICAL EVIDENCE REGARDING SPINAL FUNCTION
The Tribunal was provided with conflicting medical evidence regarding the Applicant’s spinal functionality under Table 4 of the Impairment Tables. This evidence is as follows:
·two letters from the Applicant’s treating general practitioner, Dr Charles T Jansz (MBBS, DCH, FRACGP) stating an opinion that the Applicant’s spinal function should be given a severe Impairment Rating; and
·a 14 page report of Dr Christopher G Minogue, a Specialist Occupational Physician (MBBS, BA, DPH, FAFOEM(RACP), Grad Dip SP Med), dated 25 September 2017 (Exhibit R1, Annexure A) which was commissioned by the Respondent’s Centrelink Health Professional Advisory unit. Dr Minogue’s report concludes with the opinion that the Applicant’s spinal function should be given a moderate Impairment Rating.
In their book Expert Evidence: Law, Practice, Procedure and Advocacy (Thomson Reuters Lawbook Co, 2013) at page 283-284, Professor Ian Freckelton QC and Hugh Selby discuss the advantages and disadvantages of evidence from “treating health practitioners” and “assessors who do not treat the patient”. With respect to treating health practitioners, they state (at 283):
There are many circumstances in which a report is commissioned from a treating health practitioner. There is a fallacy that such a report is not an “expert report”. In fact, such reports are expert reports – their authors possess specialised knowledge based upon their training, study or experience (see, eg, r 44.01 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic)). Moreover, the facts and opinions in such reports are often particularly valuable for litigation because the treater is likely to have a longitudinal perspective in relation to the patient’s condition – for instance, detailed knowledge of the patient that spans the pre- and post-injury periods and which is uncontaminated by, or much less contaminated by, the litigation process (see Rimmer (1989, p23). An issue for such report writers is the expectation of the courts that as soon as an expert provides a report for use by the courts, the author has a primary responsibility to the court and not to be an advocate for their patient (Medical Practitioner’s Board of Victoria (2006)). This transmogrification of role is not always as well appreciated as it needs to be by treating medical practitioners but can be addressed, at least to some extent, by provision by commissioning solicitors of the relevant code of ethics or practice guidelines for expert report writers.
The Tribunal notes that Dr Jansz was not commissioned by the Applicant to write a medical report, but provided the Applicant with a letter to assist with her DSP claim and appeal. Dr Jansz, states in his letter that his medical practice had been treating the Applicant since 24 August 2015. Dr Jansz confirmed that he had seen the Applicant on three occasions when her previous medical practitioner, Dr Richard Turner, was not available, and that he had taken over her care since 17 February 2017 (letter dated 7 April 2017 to the FOI and Litigation Branch of the Department of Human Services contained in Exhibit A2). Dr Jansz, as the Applicant’s treating medical practitioner, was able to personally examine and treat the Applicant over a period of time in a context removed from the litigation process.
A letter from Dr Jansz addressed “To whom it may concern” dated 1 March 2017 (contained in Exhibit A1) stated:
With reference to her application to Administrative Appeals Tribunal matter (sic).
I believe that under table 4 Spinal Function of the Social Security Impairments table, she has spinal disability which places her in the severe functional impairment table due to being unable to turn her head or bend her neck without movement of the trunk. She has severe restriction of cervical spine movement which requires movement of the trunk for any significant functional movement.
The Tribunal notes that there is a risk that a treating medical practitioners such as Dr Jansz may be more inclined to accept the self-reported symptoms of the patient than an independent assessor. The Tribunal is unable to assess whether this occurred because Dr Jansz did not provide any information or description about the process by which he examined the Applicant and did not explain how he reached the conclusion that the Applicant’s spinal function should be rated as “severe”.
In his letter to the FOI and Litigation Branch of the Department of Human Services dated 7 April 2017 (contained in Exhibit A2), Dr Jansz provided clarification as to whether he was referring to the Applicant’s condition during the qualification period. Dr Jansz stated:
I provided Brenda with the requested letter relating to the Social Security Impairment Table 4, together with current X-rays of her neck and dorsal, which has been provided as evidence to you recently. I clarify that Brenda’s condition does fall within the required dates of 16th June 2016 to current dates.
The “requested letter” referred to by Dr Jansz was his letter dated 1 March 2017.
In a letter from Dr Richard Turner, the Applicant’s previous medical practitioner, to Centrelink dated 15 September 2016 (Exhibit R2, page 266), Dr Turner stated that the Applicant:
…has chronic pain relating to multilevel disc disease (sic) She has particular problems at L4/5with (sic) chronic pain which is very disabling (sic) She walks with a stick gets help with her ADL’s [activities of daily living] and cannot manage her home duties. The enclosed xray report shows evidence of her physical condition. She is on significant analgesia and her rehabilitation is likely to be slow if it happens at all…
The date of this letter, 15 September 2016, is the last day of the qualification period. However, it does not specifically address spinal functionality in a manner which would enable the Tribunal to make a finding with respect to the appropriate Impairment Rating under Table 4.
As noted above, the Respondent relies upon the report of Dr Christopher G Minogue dated 25 September 2017 (Exhibit R1, Annexure A) to support its contention that the Applicant should be given a moderate impairment rating. Dr Minogue undertook a comprehensive review of the Applicant’s medical records, however, unlike Dr Jansz, he did not examine or directly observe the Applicant.
Freckelton and Selby also discuss the implications of a medical report written by an “assessor”. They state (at page 283-284):
Many reports are commissioned from assessors who do not treat the patient but are asked as part of the forensic process to provide an independent assessment of the patient. These are often called “third party reports”. The advantage of such reports is that they are generally commissioned from practitioners who are familiar with the needs and expectations of the litigation process. In addition, they are unaffected by contaminants such as therapeutic bias or treatment advocacy. However, their limitation is that they are commissioned for forensic purposes and, often, comparatively little time is spent by the assessor with the patient, meaning that the assessment is either somewhat superficial or heavily dependent upon patient self-report.
As noted by Freckelton and Selby, the advantage of an “assessor” report, such as that provided by Dr Minogue, is that the assessor is in a more objective position because they do not have a relationship with the patient. Given the extensive nature of the medical documentation considered by Dr Minogue (which he detailed in pages 2 through to 12 of his report in Annexure A of Exhibit R1) it is apparent that he did not rely upon self-diagnosis from the Applicant. Instead, the evidence suggests that he relied upon a broad and comprehensive range of medical documentation. On the other hand, Dr Minogue did not have the opportunity to personally examine the Applicant and was therefore only able to comment on the range of movement that would be “expected”, based on a review of the medical documentation, and not the Applicant’s range of head and neck movement based on direct observation.
Following a forensic assessment of the Applicant’s medical records, Dr Minogue found the Applicant’s degenerative spinal condition to be fully diagnosed, treated and stabilised during the qualification period (Annexure A to Exhibit R1, page 12).
However, Dr Minogue disagreed with Dr Jansz’s assessment of the Applicant’s spinal function. His opinion was that the impairment rating for the Applicant’s degenerative spinal condition at the time of the qualification period was moderate. Dr Minogue stated the following (Exhibit R1, Annexure A, page 12):
Based on anatomical considerations with reference to the X-rays of 20/10/15 (T38, as noted above), I consider Dr Jansz’s assessment to be, objectively, highly implausible. To reiterate, the X-ray findings included facet joint degenerative changes in the mid and lower cervical spine and lower cervical spinal disc space narrowing. About half of the normal range of head rotation takes place at the atlanto-axial joint (C1/2), which is unaffected by these changes. Likewise some flexion (nodding), extension and lateral flexion take place at the atlanto-occipital joint (C0-1), and the upper cervical spine segments, which also permit some movement, are not significantly affected by the reported spondylosis.
Accordingly it would be expected that at least some of the retained range of head and neck movement in Ms Perich’s case, albeit somewhat restricted, could be performed without recourse to trunk movement. In typical cases of cervical spondylosis the ranges of lateral flexion and extension are more restricted than forward flexion and rotation, in my clinical experience.
Information on spinal function obtained from Ms Perich by the authorised review officer in September 2016 was consistent with an impairment rating of 10 points. In April 2016 (T45) the pain medicine specialist Dr Goucke noted that she exhibited “virtually no extension” of the lumbosacral spine and “was able to forward flex with some difficulty to mid tibia” (i.e. to midshins). The available information is reasonably consistent in my opinion with an impairment rating of 10 points under Table 4, with at least descriptors (a) and (b) being applicable.
The question remains as to which doctor’s evidence should be preferred. Although section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) provides that, “In a proceeding before the Tribunal…the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”, the Tribunal is of the opinion that it is appropriate to apply the following principle regarding expert opinion evidence, as summarised by Anderson J in Pollock v Wellington (1996) 15 WAR 1 as follows:
Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, esp at 390.
In conclusion, the Tribunal prefers the more comprehensive medical opinion of Dr Minogue, over that of Dr Jansz. Dr Minogue provided an extensive forensic medical analysis and gave details as to the factors he took into account in formulating his medical opinion. Accordingly, the Tribunal found the opinion of Dr Minogue to be more comprehensive and rationally based. Although Dr Jansz was the Applicant’s medical practitioner, and although he personally examined her, the Tribunal cannot assess how he formulated his opinion, or the extent (if any) to which his opinion was influenced by the self-reporting of symptoms by the Applicant. The Tribunal therefore finds that the more rationally probative evidence is that of Dr Minogue which supports a moderate impairment rating during the qualification period.
CONCLUSION
It is the Tribunal’s opinion that the evidence of Dr Minogue should be preferred and that the Applicant was correctly afforded a moderate impairment rating of 10 points during the qualification period, and did not satisfy the requirements of s 94(1)(b) of the Act to qualify for a DSP. Consequently, the Tribunal does not have to consider whether the Applicant had a “continuing inability to work” (s 94(1)(c)(i) of the Act).
The Tribunal does, however, have sympathy for the Applicant’s predicament. She is suffering from a degenerative spinal condition which will worsen over time. A substantial period of time has elapsed between the qualification period (16 June 2016 until 15 September 2016) and the present time. The Applicant’s condition, if assessed at the present time, may qualify as severe or may increase to severe in the future. However, with respect to the current application, the Tribunal can only consider the medical evidence going to the Applicant’s condition during the qualification period. There is nothing however, in the Act to preclude the Applicant from making a new claim for a DSP at the present time, or in the future.
DECISION
For the reasons set out above, the AAT Tier 1 Decision of 19 January 2017 is affirmed.
I certify that the preceding 52 (fifty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle, and Senior Member Dr M Evans
...[sgd].....................................................................
Associate
Dated: 19 April 2018
Date of hearing: 22 February 2018 Applicant: Self-represented Counsel for the Respondent: Mr Christopher Bishop Solicitors for the Respondent: Mills Oakley Lawyers
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