Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 558
•8 August 2013
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/2105
GENERAL ADMINISTRATIVE DIVISION )
ReRANYA EID
Applicant
AndSECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
CORRIGENDUM TO DECISION
The Tribunal amends its decision of 8 August 2013 as follows:
in the last line of [28] by deleting “2013” and substituting “2012.”
(sgd) S A Forgie
Deputy President
CATCHWORDS – SOCIAL SECURITY – DISABILITY SUPPORT PENSION – qualification for pension – time at which qualification to be determined – decision set aside.
PRACTICE AND PROCEDURE – SOCIAL SECURITY – purpose of Job Capacity Assessment Reports – whether intended as determinations, recommendations or evidence – on evidence given no evidentiary weight.
PRACTICE AND PROCEDURE – WORDS AND PHRASES – “taken to have made”
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; 45 AAR 247
Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066; (2008) 49 AAR 157
Re Muir and Department of Workplace Relations [2005] AATA 902
Re Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2011] AATA 642
Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; 45 AAR 247
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48; (2008) 166 FCR 428; 245 ALR 691
Acts Interpretation Act 1901, ss 13, 15AD, 36 and item 6, 46
Acts Interpretation Amendment Act 2011, s 3, Sch 1 and item 22, s 2 and item 2
Administrative Appeals Tribunal Act 1975, s 37
Legislative Instruments Act 2003, s 13
Social Security Act 1991 ss 23, 26, 27, 94, and Schedule 1B
Social Security (Administration) Act 1999 ss 13, 16, 42, Sch 2 and cll 3, 13, 14
Social Security and Other Legislation Amendment Act 2011, s 3, items 1 to 5 of Sch 3
Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997, s 3, Sch 6, item 4
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, cll 3, 6
Social Security Guide
Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension
Blakiston’s Gould Medical Dictionary, 4th edition, 1979, McGraw-hill Book Company
Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers
Guides to the Evaluation of Permanent Impairment, 5th edition, 2002
Guide to Social Security Law, version 1.196, released on 1 July 2013
Taber’s Cyclopedic Medical Dictionary, 17th ed, 1993, FA Davis and Company, Philadelphia
DECISION AND REASONS FOR DECISION [2013] AATA 558
ADMINISTRATIVE APPEALS TRIBUNAL )
) 2012/2105
GENERAL ADMINISTRATIVE DIVISION )
Re:RANYA EID
Applicant
And:SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS
Respondent
DECISION
Tribunal: Deputy President S A Forgie
Date: 8 August 2013
Place: Melbourne
Decision:The Tribunal:
1. sets aside the decision of the Social Security Appeals Tribunal dated 8 May 2012 affirming the decision of a delegate of the Secretary dated 27 January 2012 that had itself been affirmed by a decision of an Authorised Review Officer on 28 February 2012; and
2. substitutes a decision that the applicant is qualified for a Disability Support Pension from and including 19 December 2011.
(sgd) S A Forgie_
Deputy President
REASONS FOR DECISION
Mrs Ranya Eid was granted a Disability Support Pension (DSP) when she lodged a claim for it in March 2013. Her earlier claims for that pension had been unsuccessful. In particular, her claim lodged in January 2012 had been refused by a delegate of the Secretary of the Department of Families, Housing, Community Services and Indigenous Affairs (Secretary). Mrs Eid had made that application following an enquiry she had made about her entitlement in December 2011. An Authorised Review Officer (ARO) and the Social Security Appeals Tribunal (SSAT) both affirmed that refusal. Mrs Eid then applied to the Tribunal for review of the decision. As the law governing the way in which a person’s impairment is assessed changed on 1 January 2012, there has been a question whether her claim should be considered by reference to the law as it was in force before or after that date. That raised for consideration whether the circumstances in which she lodged her claim were those in which the law allows her claim to be taken to have been made before that date even though it had clearly been lodged after it. Other issues that had to be considered included the relevance or otherwise of the precise date of diagnosis of Mrs Eid’s conditions giving rise to her impairments. I have decided that Mrs Eid’s claim is taken to have been made on 19 December 2011 and that, on that day, she was qualified for a DSP.
INDEX
As the issues in this case were a little more complex than some cases raising issues relating to entitlement to DSP, I have set out an Index to assist in reading my reasons.
| SUBJECT | PARAGRAPHS |
| BACKGROUND | [3] |
| MEDICAL EVIDENCE AND JOB CAPACITY ASSESSMENT REPORTS | [4] |
| OUTLINE OF CRITERIA REQUIRED FOR QUALIFICATION FOR DSP | [5] |
| ENLARGING ON THE CRITERIA: s 94(1)(a) and meaning of an “impairment” | [6] |
| ENLARGING ON THE CRITERIA: s 94(1)(b) and identifying the “Impairment Tables” applying in this case | [7] |
| What are “Impairment Tables”? | [8]-[12] |
| Schedule 1B or the Impairment Tables: which applies in assessing Ms Eid’s impairment? | [13]-[34] |
| ENLARGING ON THE CRITERIA: s 94(1)(b) the substantive provisions of the “Impairment Tables” | [35] |
| Schedule 1B and the Impairment Tables in the Minister’s Determination | [35] |
| Identifying the condition(s) giving rise to the impairment | [36]-[40] |
| Pain | [41]-[42] |
| Information that may be taken into account in applying relevant tables | [43]-[45] |
| Selecting the applicable Table and assessing impairments | [46]-[47] |
| ENLARGING ON THE CRITERIA: s 94(1)(c) and “continuing inability to work” | [48] |
| What is “work”? | [48] |
| Circumstances in which a person will have a “continuing inability to work” | [49]-[53] |
| CONSIDERATION | [54] |
| The evidentiary weight to be given to the JCA Reports | [54]-[77] |
| Is Mrs Eid qualified to receive DSP? | [78]-[103] |
| CONCLUSION | [104] |
| MEDICAL EVIDENCE AND JOB CAPACITY ASSESSMENT REPORTS | Attachment A [105]-[155] |
| THE MEANING OF “IMPAIRMENT” | Attachment B [156]-[171] |
BACKGROUND
In this section of my reasons, I set out those facts that are not in dispute between the parties. I have done so in the form of a chronology.
| Date | Event |
| 1976 | Mrs Eid was born in Lebanon |
| 1997 | Mrs Eid came to Australia |
| 1999 | The first of Mrs Eid’s three children was born |
| 1 February 2011 | Centrelink form of Medical Certificate signed by Dr Ariane D’Argent |
| 16 February 2011 | Centrelink Medical Report signed by Dr D’Argen |
| 11 March 2011 | Job Capacity Assessment Report (JCA Report) |
| 9 June 2011 | Centrelink form of Medical Certificate signed by Dr D’Argent |
| 14 June 2011 | JCA Report |
| 19 December 2011 | Ms Eid telephoned Centrelink regarding claim for DSP.[1] |
| 3 January 2012 | Ms Eid lodged a claim for DSP in relation to chronic back pain (osteoarthritis), stress and depression.[2] |
| 3 January 2012 | Medical report by Ms Eid’s General Practitioner, Dr Asim Saghir, diagnosing osteoarthritis lower back (date of diagnosis 3 June 2011) and depression (date of diagnosis 2005).[3] |
| 3 January 2012 | Ms Eid was referred to a Job Capacity Assessment.[4] |
| 16 January 2012 | Ms Eid attended a Job Capacity Assessment interview with an assessor, who is a registered occupational therapist, and a Contributing Assessor, who is a registered psychologist.[5] |
| 24 January 2012 | Job Capacity Assessment Report stating that both conditions assessing Ms Eid’s work capacity as 30+ hours per week on the basis that she does not have any permanent, fully diagnosed, treated and stabilised medical conditions.[6] |
| 27 January 2012 | Ms Eid was notified that her claim for DSP had been rejected on the basis that she did not have an Impairment Rating of 20 points or more using the Impairment Tables in the SS Act.[7] |
| 31 January 2012 | Report of Dr Robert Gassin, a Musculoskeletal and Pain Physician |
| 1 February 2012 | Ms Eid applied for review of the decision.[8] |
| 9 February 2012 | Centrelink form of Medical Certificate signed by Dr Saghir |
| 9 February 2012 | The decision was not changed by a Centrelink officer who described himself as “… writing on behalf of the person who made the decision on 3 January 2012 not to pay you Disability Support Pension. You asked for that decision to be reconsidered because you feel you are qualified for disability support pension, and have suggested that you will lodge new information to support this. My decision After carefully considering the information you have provided, I have concluded that the decision was correct and should not be changed. The reason for my decision I made this decision because As there is no new medical evidence to show the original assessment of your medical condition is incorrect the decision to reject your claim for disabilities stands. If you lodge new medical evidence within the next 13 weeks your appeal will be re-opened. What to do if you think this decision is wrong If you do not agree with this decision you can ask for an Authorised Review Officer to review it. …”[9] |
| 13 February 2012 | Ms Eid applied for review of this decision.[10] |
| 24 February 2012 | Dr Saghir’s statement of Mrs Eid’s medical conditions and treatment |
| 28 February 2012 | The Authorised Review Officer affirmed the decision.[11] |
| 2 March 2012 | Ms Eid applied to the Social SSAT for review of the decision. |
| 2 April 2012 | Employment Services Assessment Report[12] |
| 8 May 2012 | The SSAT affirmed the decision.[13] |
| 25 May 2012 | Ms Eid applied to the Tribunal for review of the SSAT’s decision.[14] |
| 27 June 2012 | Report by Dr Pasan Manawadu, Consultant Psychiatrist |
| 18 October 2012 | Report by Dr Amanda Sillcock, Consultant Occupational Physician |
[1] T documents; T 23 at 129
[2] T documents; T12 at 53-62
[3] T documents; T12 at 64-71
[4] T documents; T13 at 72
[5] T documents; T13 at 72
[6] T documents; T13 at 72-78 and see [146]-[148] below for further detail
[7] T documents; T14 at 79-80
[8] T documents; T23 at 125-126
[9] T documents; T15 at 81
[10] T documents; T23 at 124
[11] T documents; T20 at 89-92
[12] T documents; T22 at 95-101
[13] T documents; T2 at 3-8
[14] T documents; T1 at 1-2
MEDICAL EVIDENCE AND JOB CAPACITY ASSESSMENT REPORTS
As the medical evidence and Job Capacity Assessment Reports (JCA Reports) are somewhat extensive, I have summarised them in Attachment A to these reasons. Their placement in an Attachment should not be read as lessening their relevance to the issues for, as will become apparent, I regard the evidence as vitally important.
OUTLINE OF CRITERIA REQUIRED FOR QUALIFICATION FOR DSP
Section 94(1) of the SS Act sets out a general statement of the criteria a person must satisfy in order to be entitled to a DSP. In so far as they are relevant and in issue in this case, they are:
“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;
(ii)…
(d)-(ea)…”
ENLARGING ON THE CRITERIA: s 94(1)(a) and meaning of an “impairment”
At Attachment B, I have set out my understanding of the word “impairment” as it is used in s 94 of the SS Act and in the Impairment Tables whether in the form of Schedule 1B or as made by the Minister’s Determination. I have concluded that the word, when unqualified by any adjective or words of limitation means a loss or abnormality in a person’s body part or system, be it physical or psychological, or an element of loss or partial loss of the function of a body part or system when regard is had to what is normal.
ENLARGING ON THE CRITERIA: s 94(1)(b) and identifying the “Impairment Tables” applying in this case
Although it might be thought more logical to begin with the meaning of “impairment” in s 94(1)(a), I will begin with the Impairment Tables referred to in s 94(1)(b) for both they and the means by which they have been promulgated become relevant in considering s 94(1)(a).
What are “Impairment Tables”?
The answer to this question will depend on whether the issue under consideration must be determined by reference to the SS Act as it applied before or after its amendment by the Social Security and Other Legislation Amendment Act 2011 (SSOL Act).[15] Those amendments came into operation on 1 January 2012.[16]
[15] Act No. 145 of 2011; SSOL Act; s 3, Schedule 3, Items 1 and 2 amending 23(1) and 26 of the SS Act
[16] SSOL Act; s 2, Item 2
A. Before 1 January 2012
Before 1 January 2012, a reference to the “Impairment Tables” was a reference to those Tables in Schedule 1B to the SS Act.[17] I will refer to the Tables in that form as “Schedule 1B”.
[17] SS Act; s 23(1)
A.2 Since 1 January 2012
Since 1 January 2012, the Impairment Tables to which reference is made in s 94(1)(b), have been “… the tables determined by an instrument under subsection 26(1)” of the SS Act.[18] Under s 26(1), “The Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for the disability support pension.”[19] Section 26(2) provides that:
“An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.”
[18] SS Act; s 23(1)
[19] SS Act; s 26(1) and see also s 23(1)
In the instrument, the Minister may also:
“… 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).”[20]
Again, the instrument may “contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.”[21]
[20] SS Act; s 26(3)
[21] SS Act; s 26(4)
On 6 December 2011, the Minister made a Determination called the “Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011” (Impairment Tables).[22] It commenced operation as soon as Schedule 3 of the SSOL Act commenced and that commenced on 1 January 2012.[23]
[22] Federal Register of Legislative Instruments F2011L02716
[23] See [17]-[18] below
Schedule 1B or the Impairment Tables: which applies in assessing Mrs Eid’s impairment?
This case does not involve a situation in which the Minister has amended the Impairment Tables made under s 26[24] but a situation in which the Impairment Tables enacted by Parliament in Schedule 1B to the SS Act (Schedule 1B) have been repealed and replaced by Impairment Tables made by the Minister in a legislative instrument. The change that came about on 1 January 2012 was brought about by s 3 and Items 1 to 4 of Schedule 3 to the SSOL Act.
[24] Section 27 inserted by the SSOL Act provides for the situation in which the Minister amends the Impairment Tables made under s 26. The effect of ss 27(1) and (2) of the SS Act is that a person’s impairment must be assessed by reference to the Impairment Tables in the instrument in force on the day on which that person’s claim for a DSP was made or taken to have been made. That is so whether the decision on the person’s claim for DSP is being made at first instance by the Secretary or the Secretary’s delegate or on review by the SSAT or by this Tribunal.
Item 5 of Schedule 3 to that legislation sets out the application of the amendments made in Items 1 to 4. Item 5(1) provides that the amended provisions “… apply for the purposes of working out a person’s qualification for disability support pension in respect of days occurring on or after 1 January 2012.” This is qualified, however, if a claim for DSP has been made, or is taken to have been made, before 1 January 2012 and the Secretary has not determined it before that date. In that case:
“… those amendments do not apply in relation to working out the person’s qualification for disability support pension in respect of days occurring on or before the day on which the Secretary determines the claim.”[25]
Item 5(3) complements that provision. It relates to ss 27(1) and (2), which require the Secretary, in determining a claim for DSP, to apply the instrument in force under s 26 on the day the claim was made or taken to have been made. Item 5(3) provides that those provisions “… apply in relation to claims for disability support pension made, or taken to have been made, on or after the commencement of this item” being Item 5. As the item came into operation on 1 January 2012,[26] those provisions apply to claims for DSP made, or taken to have been made, after 1 January 2012.
[25] SSOL Act; Schedule 3; Item 5(2)
[26] SSOL Act; s 2; Item 2
A.When was Mrs Eid’s claim “made”?
Section 16 of the Social Security Administration Act 1999 (SSA Act) provides for the way in which a claim may be “made” for a social security payment. A “social security payment” includes a “social security pension” which, in turn, includes a disability support pension.[27] Section 16(1) provides that a person “makes a claim for a social security payment” by lodging a written claim for the payment or by making the claim in accordance with s 16(7). Section 16(7) provides that a person may make a claim in a manner approved by the Secretary for the purposes of that subsection.
[27] SS Act; s 23(1)
Whether the Secretary has, or has not, issued any approval is not relevant in this case for Mrs Eid lodged a written claim as contemplated by s 16(1)(a). Section 16(4) provides for the way in which she was required to lodge her written claim:
“A written claim is lodged by being delivered:
(a)to a person apparently performing duties at a place approved for the purpose by the Secretary; or
(b)to a person approved for the purpose by the Secretary; or
(c)in a manner, and to a place, approved for the purpose by the Secretary.”
There is no question that Mrs Eid delivered her claim to a place approved for the purpose by the Secretary when she delivered it to a Centrelink office. She delivered it on 3 January 2012. That was two days after the Impairment Tables came into operation. If no other considerations arise, the effect of the transitional provisions in the SSOL Act would mean that her claim is determined by reference to the Impairment Tables and not to Schedule 1B.
B.When is Mrs Eid’s claim “taken to have been made”?
Other considerations do arise, though, because Mrs Eid had been in contact with Centrelink about a claim for DSP before 1 January 2012. That takes me to consider whether her claim might be “taken to have been made” at an earlier date for Item 5(3) of the SSOL Act provides that the Impairment Tables “… apply in relation to claims for disability support pension made, or taken to have been made, on or after the commencement of this item”. That means that claims made, or taken to have been made, before 1 January 2012 will be determined by reference to Schedule 1B.
B.1 When is a claim taken to have been made on an earlier day?
Determining when it was “taken to have been made” requires reference to be made to s 13 of the SSA Act. In this case, s 13(1) is relevant. It provides:
“For the purposes of the social security law, if:
(a)the Department is contacted by or on behalf of a person in relation to a claim for a social security payment; and
(b)the person is, on the day on which the Department is contacted, qualified for the social security payment; and
(c)the Secretary gives the person a written notice acknowledging that the Department has been contacted in relation to the making of the claim; and
(d)the person lodges a claim for the social security payment within 14 days after the Department is contacted;
the person is taken to have made a claim for the social security payment on the day on which the Department was contacted.”
Section 13(4) provides that a reference to the Department’s being contacted is a reference to its “… being contacted by post or telephone or by the transmission of a message by the use of facsimile, computer equipment or other electronic means.” Again, there is no question that Mrs Eid contacted Centrelink on 19 December 2011 when she telephoned it.
B.2 When does the 14 day period begin?
The answer to this question depends on two things. One is how the 14 day period is calculated and the second is the impact, if any, of the period concluding on a day that falls on a weekend or is a public holiday.
As to the first matter, Item 6 of s 36(1) of the Acts Interpretation Act 1901 (AI Act) provides that:
“A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:
Calculating periods of time
Column 1
Column 2
Item If the period of time: then the period of time: … 6 is expressed to begin after a specified day does not include that day … … …”
The effect of Item 6 is that the 14 day period referred to in s 13(1)(d) in the SSA Act begins on the day after the Department was contacted. In this case, it means that it begins on 20 December 2011 as Mrs Eid contacted Centrelink on 19 December 2011. As the reference in s 13(1)(d) is a reference to lodgement “within” 14 days after that contact, the period must be taken to end at the conclusion of the 14th day after that contact. That means that when Mrs Eid made contact on 19 December 2011, the period that can be described as being “14 days after the Department is contacted”, concluded at some time on 2 January 2012. I say “at some time” on that day because, for all practical purposes, Mrs Eid could only lodge a claim by delivering it when a Centrelink office was open.
B.3 What is the effect of the 14th day’s falling on a holiday?
The fact that 2 January 2012 fell on a Monday gives rise to a second problem. That day had been declared a public holiday because New Year’s Day fell on a Sunday. Sections 36(2) and (3) of the AI Act make some provision for holidays and the like:
“(2) If:
(a)an Act requires or allows a thing to be done; and
(b)the last day for doing the thing is a Saturday, Sunday or a holiday;
then the thing may be done on the next day that is not a Saturday, a Sunday or a holiday.
Example:If a person has until 31 March to make an application and 31 March is a Saturday, the application may be made on Monday 2 April.
(3)In this section:
holiday, in relation to the time for doing a thing, means:
(a)a day that is a public holiday in the place in which the thing is to be or may be done; and
(b)if the thing is to be or may be done at a particular office or other place – a day on which the place or office is closed for the whole day.”
Section 13(1)(d) of the SSA Act does not require a person to lodge a claim but does it “allow” a claim to be lodged in the sense in which s 36(2) of the AI Act uses the word “allow”? The ordinary meanings of the word “allow” include “… to permit (someone to do something, something to happen, etc). …”.[28] I have been unable to find any authorities that consider the meaning of the word in the context of s 36 of the AI Act.
[28] Chambers 21st Century Dictionary, 1999, reprinted 2004, Chambers (Chambers)
Section 13(1)(d) of the SS Act is not expressed in terms of requiring a person to make a claim for a social security payment. Taking s 13(1)(d) at face value only, it is difficult to say that it is expressed in terms of “allowing” a person to make such a claim either. Instead, it is expressed in terms of an event that has occurred – the lodgement of a claim for a social security payment - rather than in terms of allowing a claim to be lodged. If s 13(1)(d) is to be read in that way, there is no room for regard to be had to s 36(2) of the AI Act to enable weekends and holidays to be disregarded in calculating the 14 day period.
I have decided that s 13(1)(d) should not be read purely at face value. Instead, it should be read in light of the purpose of s 13(1) and in light of the way in which a claim must be made according to s 16. The purpose of s 13(1) is to give a person who is qualified for a social security payment and who has contacted the Department about it a defined period of time within which to claim it. If the person does claim it and is qualified for the particular social security payment, then the person’s start day for the payment of that social security payment will be determined by reference to the date on which the claim is made.[29] The person may only make the claim if he or she does so in the manner prescribed by s 16 of the SSA Act. For all practical purposes, a person can only make it at an office or place approved by the Secretary, to a person approved by the Secretary or in a manner and to a place approved by the Secretary.[30] I do not think that I need any particular evidence to find that such places are not open to receive claims on Saturdays, Sundays or holidays.[31]
[29] See SSA Act; s 42 and Schedule 2, cl 3(1)
[30] SS Act; s 16(4)
[31] The SS Act makes provision for communication with claimants by electronic means but no provision is made for lodgement of claims by email. Issues relating to the application of the Electronic Transactions Act 1999 do not arise in this case.
When regard is had to these matters, it seems to me that s 13(1)(d) should be read as permitting, and so “allowing”, a person to make a claim within 14 days of contact with the Department in order for that claim to be regarded as having been made at the time of that contact. That would bring s 36(2) of the AI Act into operation. In Mrs Eid’s case, it means that her claim was lodged within 14 days after contact with the Department because the last day fell on a holiday, being Monday 2 January 2012 and she lodged it on the next day that was not a holiday, being Tuesday, 3 January 2013.[32]
[32] I note that this is the approach adopted at [8.1.1.60] of the Guide to Social Security Law, Version 1.196 released on 1 July 2013 by the Department of Families, Housing, Community Services and Indigenous Affairs (SS Guide).
B.4 Conclusion
The conclusion that I have reached is that I must have regard to Schedule 1B, and not to the Impairment Tables, in considering whether Mrs Eid is qualified for the DSP at the date she is taken to have made her claim i.e. 19 December 2011.
C.Is Mrs Eid’s qualification for DSP in the 13 week period after 19 December 2011 determined by reference to Schedule 1B or the Impairment Tables?
If Mrs Eid is not qualified for DSP on 19 December 2011, DSP may still be payable to her if she is found to be qualified for it at a time within the 13 week period from that day.[33]
C.1The general rule for identifying the “start day” for the payment of a social security payment
[33] SSA; s 42 and Schedule 2, cl 4
A reference to a “start day” relates to the payment of a social security payment to a person qualified to receive it and, generally, a social security payment becomes payable on a person’s start day. Section 42 of the SSA Act provides that a person’s “start day” in relation to a social security payment is worked out in accordance with Schedule 2 to that legislation.
Clause 4 of Schedule 2 is relevant in a situation in which a person is not qualified for a social security payment on the day on which he or she lodges a claim but becomes qualified within 13 weeks after the date of lodgement. Clause 4(1) provides:
“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.”
If it should prove to be the case that Mrs Eid is not qualified for the DSP on 19 December 2011 but is qualified for it on a particular day in the 13 week period after that, the effect of cl 4(1) is that her claim is taken to be made on that particular day.
C.2Determining the application of Schedule 1B and the Impairment Tables if she is not qualified on 19 December 2011
In answering this question, I will have to go back to item 5(2) of Schedule 3 of the SSOL Act and keep in mind whether the particular day on which Mrs Eid is taken to have made the claim is before or after 1 January 2012. If her claim is taken to have been made:
(1)in the period from 20 December 2011 to 31 December 2011, Mrs Eid’s entitlement to DSP is to be determined by reference to Schedule 1B; and
(2)if in the period on or after 1 January 2012, her entitlement to DSP is to be determined by reference to the Impairment Tables.
ENLARGING ON THE CRITERIA: s 94(1)(b) the substantive provisions of the “Impairment Tables”
Schedule 1B and the Impairment Tables in the Minister’s Determination
Both Schedule 1B and the Impairment Tables begin by setting the way in which, or the rules for applying those tables. Their format and wording differs but their essential thrust is very similar. Of relevance in this case, I note that the tables:
(a)set out in each are to be used only for assessing whether a person satisfies the criterion in s 94(1)(b);[34]
(b)are function based and not diagnosed based;[35]
(c)require the loss of function, if any, to be identified;[36] and
(d)require an assessment of the level of functional impairment.[37]
[34] Schedule 1B; cl 1 and Impairment Tables; s 5(2)(a)
[35] Schedule 1B; cl 2 and Impairment Tables; s 5(2)(b)
[36] Schedule 1B ; cl 9 and Impairment Tables; s 6(8) and see also s 11(5). The fact that a condition has been diagnosed and is permanent having been fully treated and stabilised does not mean that the person suffers an impairment.
[37] Schedule 1B; cll 1 and 3 and Impairment Tables; s 5(2)(c) This is consistent with the definition of “impairment” in s 3(1) of the Impairment Tables: “impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.” The word “impairment” is not defined in the SS Act.
Identifying the condition(s) giving rise to the impairment
At all relevant times, s 94 has not made any reference to the condition giving rise to the impairment but both Schedule 1B and the Impairment Tables link the two. So, for example, Schedule 1B states at [2] of the Introduction that:
“ These Tables are designed to assess impairment in relation to work and consist of system based tables that assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. … The question which must be asked in each and every case is ‘which body systems have a functional impairment due to this condition?” (emphasis added).
The focus on the condition and its link to the impairment is also apparent in the requirement in Schedule 1B that:
“4. A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for investigation of poorly defined conditions before considering assigning an impairment rating. …
5. The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.
6. In order to assess whether a condition is fully diagnosed, treated and stabilised, one must consider:
what treatment or rehabilitation has occurred;
whether treatment is still continuing or is planned in the near future;
whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next 2 years.
In this context, reasonable treatment is taken to be:
treatment that is feasible and accessible ie, available locally at a reasonable cost;
where a substantial improvement can reliably be expected and where the treatment or procedure is of a type regularly undertaken or performed, with a high success rate and low risk to the patient.
…”
The Impairment Tables also look to the condition causing the impairment.[38] They define a “condition” as a “medical condition”.[39] As with Schedule 1B:
“An impairment rating can only be assigned to an impairment if:
(a) the person’s condition causing that impairment is permanent; and
Note: For permanent impairment see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.”[40]
[38] Impairment Tables; s 6(2)
[39] Impairment Tables; s 3
[40] Impairment Tables; s 6(3) As the Impairment Tables are, by virtue of s 26 of the SS Act, a legislative instrument, their interpretation is governed by s 13 of the Legislative Instruments Act 2003 (LI Act). Section 13(1) of the LI Act provides that: “… unless the contrary intention appears: (a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and (b) expressions used in any legislative instrument so made have the same meaning as in the enabling legislation as in force from time to time; and (c) any legislative instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the rule-maker.” This provision is mirrored in s 46 of the Acts Interpretation Act 1901 (AI Act). Section 15AD of that legislation provides: “If an Act includes an example of the operation of a provision: (a) the example is not exhaustive; and (b) the example may extend the operation of the provision.”
That is the effect of s 6(3) of the Impairment Tables. Provision is then made for the circumstances in which a condition is regarded as “permanent”. It is found in s 6(4):
“For the purposes of s 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note:For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.”[41]
[41] Impairment Tables; s 6(4)
Sections 6(5), (6) and (7) explain the terms used in s 6(4):
Fully diagnosed and fully treated
(5) In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a) whether there is corroborating evidence of the condition; and
(b) what treatment or rehabilitation has occurred in relation to the condition; and
(c) whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.”
Pain
Both Schedule 1B and the Impairment Tables address the assessment of the functional impact of pain. Under the former, [8] provides:
“8. In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates. Assessors must use their judgement and be convinced that pain or fatigue is a significant factor contributing towards the person’s overall functional impairment. Medical reports and the person’s history should consistently indicate the presence of chronic entrenched pain or fatigue.”
A specific table dealing with pain is no longer included in the Impairment Tables. Instead, s 6(9) provides:
“There is no Table dealing specifically with pain and 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).”
Information that may be taken into account in applying relevant tables
Schedule 1B did not specifically provide for the type of information that a JCA Assessor might take into account in applying the tables. The Impairment Tables do address the issue providing in s 7:
“(1) Subject to subsection (2), in applying the Tables the following information must be taken into account:
(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.
(2) A person may be asked to demonstrate abilities described in the Tables.”
A “health professional” is defined in s 3 of the Impairment Tables to include “… an appropriately qualified medical practitioner and an allied health practitioner.” An “allied health practitioner”:
“… includes, but is not limited to, a person who practises chiropractic, exercise physiology, physiotherapy, psychology, occupational therapy, osteopathy, pharmacy, podiatry or rehabilitation counselling [sic].”
Section 9 of the Impairment Tables provides:
“A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.”
Schedule 1B did not specifically address matters that may not be taken into account by virtue of the SS Act e.g. those specified in s 94(3) relating to the availability of a training activity or of work in the person’s area. Section 8 of the Impairment Tables does address such issues and in broader detail when it provides:
“(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note:Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.”
Selecting the applicable Table and assessing impairments
The steps to be followed in applying the tables is similar whether under Schedule 1B or under the Impairment Tables. Paragraph 9 of Schedule 1B provides:
“Always use a Table specific to the functional impairment being rated unless the instructions in a section specify otherwise. The system-specific Tables provide appropriate criteria with which to rate a disorder. The procedure is to identify the loss of function, refer to the appropriate system Table and identify the correct rating e.g. a person with a CVA (stroke) could be assessed under five different Tables: upper and lower limbs (3 and 4), neurological (8 and 9) and visual field disorders (15). Table selection would depend on the functions affected.”
Section 10 of the Impairment Tables is to the same end although it enlarges upon the steps when it provides:
“Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.”
ENLARGING ON THE CRITERIA: s 94(1)(c) and “continuing inability to work”
What is “work”?
The word “work” is defined in s 94(5) to mean:
“… work:
(a)that is at least 15 hours per week award wages or above; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.”
Circumstances in which a person will have a “continuing inability to work”
A.Criteria
Section 94(2) enlarges on the criteria set out in s 94(1)(c)(i):
“A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – the person has actively participated in a program of support within the meaning of subsection (3C); and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).”[42]
[42] Section 94(3C) provides “A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.”
B.What is a “severe impairment” and what is a “program of support”?
Section 94(3B) provides:
“A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”
…”
A “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.”[43]
[43] SS Act; s 94(5)
C. What is a “training activity”?
A “training activity”:
“… means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a)education;
(b)pre-vocational training;
(c)vocational training;
(d)vocational rehabilitation;
(e)work-related training (including on-the-job training).”[44]
[44] SS Act; s 94(5)
D.Matters irrelevant to determining if there is a continuing inability to work
Section 94(3) sets out those matters to which the Secretary may not have regard in deciding whether or not a person has a continuing inability to work. It provides:
“In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.”
CONSIDERATION
The evidentiary weight to be given to the JCA Reports
At Attachment A, I have summarised the three JCA Reports prepared in relation to Mrs Eid’s claim for DSP. Each has been prepared by a psychologist and each takes a similar form. In the barest of outlines, each identifies Mrs Eid’s medical conditions, sets out material obtained in medical certificates and reports provided by Mrs Eid’s treating medical practitioners, references to information obtained from Mrs Eid, comes to a conclusion whether each condition has been diagnosed, treated and stabilised, assesses her work capacity and makes recommendations as to the assessments of Mrs Eid’s work capacity that should be made. At the hearing, I raised the question of the evidentiary weight I should give to the JCA Reports and the parties made further written submissions in response to my invitation to do so.
I will begin with particular aspects of the JCA reports that have caused me difficulties. The first is the description given by the JCA Assessor to each of the conditions suffered by Mrs Eid. Each accurately reflects the description of the conditions given by Mrs Eid’s medical practitioners or one of them. Where I have a difficulty arises when each is described as “Type: Permanent” but there then follows a passage in which the condition is said not to have been fully treated or stabilised. A statement of this sort appears in the JCA Report of 24 January 2012 in relation to each of the conditions of Spinal Disorder – Other and Depression as it does in the earlier reports of 11 March 2011 and 14 June 2011 in relation to each of the conditions considered in them. Other examples are found in the later report dated 2 April 2012 in relation to those two conditions and Fibromyalgia but, in relation to Depression, the form of the statement is even more puzzling. Not only is the condition of Depression described as being of the Type “Permanent”, it is described as “… considered to be permanent and likely to persist to the next 2 years. …”
On the face of the JCA Reports, there is a lack of consistency between statements of this sort and the description of the conditions as “permanent”. The word “permanent” is used in both Schedule 1B and in the Impairment Tables to signify that a condition has been fully diagnosed, fully treated and fully stabilised and that it is more likely than not, in light of the available evidence, to persist for more than two years. In order to be “fully stabilised”, 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, that would be the outcome even if the person did take reasonable treatment or there is a compelling reason why he or she should not undertake that treatment. In general terms, therefore, a condition cannot be regarded as permanent unless there is unlikely to be any significant functional impairment in the following two years. That follows from cl 6(6) of the Impairment Tables and the position is no different under Schedule 1B.
In response to my queries of this sort at the hearing, the Secretary has submitted:
“19 For the purposes of determining eligibility for disability support payment pension, ‘permanent’ means that the condition must be fully diagnosed, treated and stabilised and expected to continue for more than two years without significant functional improvement. A condition may be permanent, in the sense that term is commonly understood, in that a person may always have a particular condition (for example arthritis), but the functional impairment arising from that condition will not necessarily be ‘permanent’ as that term is used for assessing qualification for DSP.
20 While the Job Capacity Assessment report refers to a condition as ‘permanent’ (when describing ‘type’ and ‘prognosis’ of a condition), this simply means the condition, if untreated, is one which will exist for more than 2 years. It distinguishes the condition from one which is temporary, or likely to be of short duration (for example, a simple fracture which will heal with the passage of time). The use of the term ‘permanent’ in this context does not equate to a conclusion that the functional impact of the condition is ‘permanent’ as that concept is described in the Impairment Tables, and the assessor makes this clear by describing the condition as ‘not fully treated and stabilised’. Where a person has not undertaken reasonable treatment for a condition, and the condition has not been fully treated and stabilised, the functional impairment from that condition cannot be considered permanent and cannot attract an impairment rating.”
Perhaps the fault is mine but I am not persuaded by this explanation. The JCA Reports describe each “condition” as being of a type that is “permanent”. As those reports are intended to assist in the decision-making process, it is reasonable to expect that they will use language that is consistent with the relevant legislative framework and, in particular, that is consistent with the tables used to assess impairment as required by s 94(1)(b) of the SS Act. Neither version of the impairment tables separates the permanency of the condition from the permanency of any functional impairment resulting from the condition. A condition is only regarded as permanent when it has been treated and stabilised to the point where significant functional improvement to a level enabling the person to undertake work in the following two years is not expected.
I will now turn to the basis on which the JCA Reports are prepared. There is no reference to them in either the SS Act or the SSA Act. In a letter written to Mrs Eid on 28 February 2012, the Authorised Review Officer (ARO) told her of his reasons for concluding that the decision to refuse her claim for DSP was correct. In the course of giving his reasons, the ARO described the purpose of a JCA Report:
“A Job Capacity Assessment Report provides recommendations as to: whether medical conditions are temporary or permanent; the appropriate impairment rating; a person’s current and future work capacity; and any temporary reductions in work capacity.”[45]
[45] T documents; T20 at 91
As recommendations, the JCA Reports may provide AROs and delegates making decisions at first instance with a useful summary and analysis of the medical evidence and an assessment of work capacity. There is a danger in treating JCA Reports as recommendations if that were to mean that the JCA Assessor’s views were given any status beyond that of summary and analysis. The person charged with the task of assessing a person’s impairment whether under Schedule 1B or under the Impairment Tables remains that of the Secretary and so of the Secretary’s delegate. As s 36(1) of the SSA Act provides, in most cases, “… the Secretary must, in accordance with the social security law, determine a claim for a social security payment … either granting or rejecting the claim.”[46] There is no evidence in this case that the Secretary has delegated decision-making powers to the JCA Assessors to assess impairment under either Schedule 1B or the Impairment Tables.[47]
[46] As to the provisions relating to the Secretary’s power of delegation, see SSA Act; s 234. As to the Secretary’s powers to authorise an officer to perform the duties as an Authorised Review Officer see SSA Act; s 235.
[47] I note that [3.6.3] of the SS Guide states that “The Guidelines provide further explanation of the Impairment Tables and include background information as well as case studies.” Those guidelines, entitled “Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Tables)”, can be read as treating JCA Assessors as decision-makers in a passage at page 17 under Heading (C) that reads: “JCAs and related decisions must be based on the best available medical evidence. In the case of people from remote areas who may have limited access to doctors, the medical report may need to be completed by a community nurse, generally based on clinical notes from a GP (the diagnosis must have been made by an appropriately qualified medical practitioner). In these cases it may be possible for the job capacity assessor to form an opinion regarding the person’s medical qualification on the basis of available evidence. This will only apply if the medical condition has been diagnosed, treated and stabilised to the extent that an impairment rating can be assigned.” For the reasons I give in this section of my reasons, I respectfully suggest that it is inappropriate for JCA Assessors to be placed in the position in which they should be asked to form such an opinion.
There is a further danger and it arises if the opinions expressed in JCA Reports are necessarily treated as evidence. This danger arises in two ways. It arises in two contexts. In the first, it arises when opinions expressed by JCA Assessors on medical issues are treated as evidence of the sort found in reports of treating medical practitioners and those of allied health professionals and specialists reporting on a patient in areas of their expertise.
Even in the submissions prepared on behalf of the Secretary, I note that the JCA Reports are dealt with under the heading of “Medical Evidence”. That, though, is of no particular concern. What is of more concern comes from an examination of the JCA Reports themselves. The JCA Report dated 24 January 2012 and the Employment Services Assessment Report dated 2 April 2012 both include previous JCA Reports in their list of References. Each correctly identifies those reports as having been prepared by a JCA Assessor but the reference to the field of those assessors as a “Psychologist” raises the question whether that is intended to convey a suggestion that the reports were prepared by the JCA Assessors in their professional capacities as psychologists.
In attempting to answer the question I have posed, I note that each of the JCA Reports (including the Employment Services Assessment Report) was prepared by a person who comes within the description of an “allied health professional” and so within that of a “health professional” in cl 3 of the Impairment Tables[48] but that does not mean that each has the expertise to give evidence of the sort that may be given by a treating medical practitioner or a specialist with relevant expertise. The Impairment Tables distinguish among health professionals according to their expertise. Clause 7(1)(a) provides that “the information provided by the health professionals specified in the relevant Table” must be taken into account. When reference is made in the Tables to an “allied health practitioner”, it is apparent from the examples given that the allied health practitioner must have skills relevant to the condition being assessed.
[48] An “allied health practitioner includes, but is not limited to, a person who practises chiropractic, exercise physiology, physiotherapy, psychology, occupational therapy, osteopathy, pharmacy, podiatry or rehabilitation counseling [sic].” A “health professional includes an appropriately qualified medical practitioner and an allied health practitioner.”
There are only two references to evidence from an allied health professional in the Impairment Tables. The first is found in Table 2 dealing with Upper Limb Function and the second in Table 3 dealing with Lower Limb Function. The references are made in the same context and I will refer only to that from Table 2. It provides that 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:
•a report from the person’s treating doctor;
•a 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);
•a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
•results of diagnostic tests (e.g. X-Rays or other imagery);
• results of physical tests or assessments.”
The corroborating evidence of the allied health professional in that instance is limited to functional impact. Certainly, it is clear from the opening words of this passage that the corroborating evidence is not limited to the evidence then listed. For all that, however, it seems clear from the context that the role of an allied health practitioner is not intended to extend beyond the boundaries of his or her expertise. That role will require him or her to distinguish between work-related functional limitations resulting from impairment resulting from a permanent condition and those resulting from another that is not permanent but it does not take an allied health professional into the realm of diagnosis.[49]
[49] The Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension (the Tables) to which [3.6.3] of the SS Guide refers specifically refers to JCA Reports as part of the evidence. The passage begins by referring to the assessment of impairment when the symptoms are self-reported and the need for corroborating evidence in such circumstances. The passage appears under heading (D) on page 17 and reads: “Corroborating evidence may include, but is not limited to additional reports or letters from the person’s treating doctor(s) or specialists, reports from previous examinations or assessments (e.g. job capacity assessment), results of diagnostic tests (e.g. X-Rays), reports from other health professionals (e.g. psychologists, physiotherapists, exercise physiologists or social workers) or reports from other sources such as mental health workers or drug and alcohol counsellors.” (emphasis added). The reference to a job capacity assessment as corroborating evidence goes beyond any of the examples given in the Impairment Tables themselves. Section 8(1) of those Impairment Tables provides that “Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.” All examples given in those Tables relate to reports from medical practitioners or allied health professionals who have treated or examined the applicant or conducted tests (be they physical or otherwise), the results of any tests that have been conducted by those persons or otherwise be they, for example, diagnostic or physical tests or assessments, records and the like. None of the examples given is that of an assessment of the sort prepared by a JCA Assessor analysing and reviewing the reports of others and without any indication on the face of the JCA Reports or otherwise that he or she has professional skills relevant to the task. For the reasons I have given, I consider that, unless the JCA Assessor has particular qualifications and has prepared a report of the sort referred to in the relevant Table in the Impairment Tables, it should not be treated as evidentiary material for the purpose of that Table or of the Impairment Tables generally.
There is a further question raised by the classification of JCA Assessors in that way. That question is whether the JCA Reports are intended to have evidentiary value as having been prepared by persons with expertise in assessing a person’s loss of functional capacity for work. If that is the intention, the question becomes: what qualifications do the JCA Assessors have in assessing a person’s loss of work-related functional capacity? Apart from the first JCA Report dated 16 January 2012, I have no evidence in this case that they do have qualifications of that sort. That particular report notes that the Assessor was a Registered Occupational Therapist. It may be that those qualifications are relevant to the assessment of a person’s loss or work-related functional capacity or they may not be. As with many professions, Occupational Therapy has many aspects and not all of them are relevant in assessing a person’s loss of work-related functional capacity. Registration is required but is not indicative of the area in which the skills of a particular Occupational Therapist lie. Whether or not this particular assessor possessed the relevant skills so that I may give the assessment of Mrs Eid’s capacity for work evidentiary weight is not apparent from the evidence.
I have a further reservation about any unquestioning acceptance of the material in JCA Reports. It arises in circumstances in which it is apparent from the report that the JCA Assessor has consulted with either another allied health practitioner or a medical practitioner be it the treating medical practitioner or another from, for example, the Health Professional Advisory Unit (HPAU). An example appears in the JCA Report dated 24 January 2012 when it states “As discussed with … (Registered Psychologist, Contributing Assessor) and Dr … (HPAU), given the persisting nature of the symptoms and lack of response to treatment to date it would be reasonable to expect that the customer seek assessment by a Psychiatrist to review diagnosis and determine further treatment needs.”[50] Apart from this brief description of the discussion, there is no reference to the material that might have been shown or revealed to those with whom the discussions occurred. There is, for example, no reference to whether they were told of the nature of the treatment and no detail is given of their responses.
[50] T documents; T22 at 73-74 and see [146]-[148] above
Quite apart from the lack of detail of the discussions, no reference is made to the expertise of the doctor from HPAU and no reference is made to the qualifications of the psychologist referred to as a “Registered Psychologist”. The Impairment Tables distinguish among Psychologists referring at various times to evidence from a “clinical psychologist” in Table 5 (Mental Health Function), a “neuropsychologist” in Table 7 (Brain Function), a “psychologist” in Table 8 (Communication Function), and an “appropriately qualified psychologist” in Table 9 (Intellectual Function). A description of a Psychologist as a “Registered Psychologist” does not provide further detail as to whether a person is a “clinical psychologist” for the purposes of Table 5 for registration is available for both practising and non-practising psychologists.[51]
[51] Registration of psychologists is the responsibility of the Psychology Board of Australia. Since 1 July 2010, it has been supported by the Australian Health Practitioner Regulation Authority.
The content of the discussions with the HPAU doctor and with the Registered Psychologist/Contributing Assessor becomes even more concerning when it is realised that reference is made to the same discussions dated 19 January 2012 in precisely the same terms in the Employment Services Assessment Report dated 2 April 2012. There is no suggestion in the later report that there was a note made of the discussions that took place on 19 January 2012 and that were referred to in the JCA Report dated 24 January 2012. The way in which the later report reads is to suggest that the JCA Assessor herself had those discussions. When her report is read with the previous JCA Report, it is seen that much of it is in identical terms. As an example, the JCA Assessor’s assessment of Ms Eid’s condition continues to be noted as “Spinal Disorder – Other” and the following passages to reflect those in the earlier report without any reference to Dr Gassin’s diagnosis of Fibromyalgia. That is so even though reference is made to Dr Gassin’s report when reference is made to a report of an “External Specialist” dated 13 February 2012.[52]
[52] See [149] below regarding the discrepancy in the date recorded in the Employment Services Report and the date of the report.
When regard is had to the other JCA Reports, it is seen that passages are reproduced from one to another. A comparison of the first two JCA Reports shows that. Passages appearing under the sub-heading of “Medical” following the heading “Additional Comments” in the JCA Report dated 11 March 2011[53] find their way, complete with typographical errors, into the section headed “Remarks” under Depression and Spinal Condition – Other in the JCA Report dated 12 July 2011. Apart from the separation of the passage in the earlier report into two sections to suit the particular condition, the only difference in the passages is that each is followed in the later report by the sentence:
“This condition is not fully diagnosed, treated and stabilised as client has not sought optimal treatment.”[54]
[53] T documents; T5 at 27
[54] T documents; T9 at 40
I do not want to be critical of the JCA Assessors in a personal sense. They have been asked to undertake tasks within a framework that appears from the nature of the JCA Reports themselves. No doubt they are under great pressure to process referrals for assessments and no doubt they are under pressure to complete them according to time frames. Pressures of that sort will undoubtedly restrict the time they can devote to gathering information, compiling and considering it. They can lead to the temptation to adopt what was said before. It may be that the JCA Assessor is of the same opinion as another JCA Assessor but copying what was said in one JCA Report in another does not give the reader of the second any confidence that the opinion or recommendation was reached after consideration of the material.
In summary, it is my view that JCA Assessors have been asked to do a task that, on many occasions, takes them outside the realm of their professional expertise as, for example, psychologists. That does not mean that they cannot play a role but it means that, unless they have particular qualifications in assessing a person’s capacity for work or particular professional qualifications relating to the conditions, their reports should not be treated as evidence. A JCA Assessor may make recommendations to a delegate of the Secretary who has to make decisions on claims for DSP. There is no doubt that recommendations made in the JCA Reports may be helpful in turning a decision-maker’s mind to particular aspects of the medical evidence and whether it meets the criteria specified in Schedule 1B or the Impairment Tables. At the same time, it seems to me that their reports must not be treated as if they were made by persons acting as allied health professionals in relation to claimants for DSP. They can only be used as an aid in assessing the evidence. A decision-maker cannot defer to an opinion or recommendation expressed in a JCA Report and, in doing so, relinquish the task of coming to a decision on each aspect of s 94 on all of the evidence.[55]
[55] The task is to be contrasted with that which had to be undertaken under earlier versions of Schedule 1B when the tasks under that Schedule were assigned to a medical practitioner. See Re Baum and Secretary, Department of Education, Employment and Workplace Relations [2008] AATA 1066; (2008) 49 AAR 157 at [66]-[70] and see also Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Jansen [2008] FCAFC 48; (2008) 166 FCR 428; (2008) 245 ALR 691; (2008) 100 ALD 496 at [38]; 438; 701; 506; Gyles, Stone and Buchanan JJ
I note that my conclusion is contrary to that reached by the Tribunal in Re Muir and Department of Workplace Relations[56] (Muir) where it was said:
“ The evidence before the Tribunal in the shape of the work capacity report establishes that the applicant is able to work 30 hours per week performing telemarketing activities, which the Tribunal is satisfied amounts to work of a light nature. While the applicant was critical of the person who undertook the work capacity assessment, those criticisms centred on upon the absence of medical qualifications of the work capacity assessment …. The Tribunal agrees with the contention of the respondent that it does not matter whether the work capacity assessor does or does not hold any relevant medical qualifications as the work capacity assessor performs his or her task on the basis of accepting the conclusions and findings of other medical personnel and then determines whether or not the person been assessed does or does not have the requisite work capacity within the meaning of section 94(1)(c) of the Act.”[57]
[56] [2005] AATA 902; Mr Fisher SC, Member
[57] [2005] AATA 902 at [43]
No reference is made to the basis on which the respondent made the submission either in this paragraph or elsewhere in the reasons. On its face, this passage appears to suggest that the JCA Assessor has a determinative, or decision-making, function when preparing the JCA Report. For the reasons I have given, I do not agree that a JCA Assessor can properly carry out that function. All that he or she can do is to make a recommendation to the person who is the delegate of the Secretary or an ARO, who can properly make a decision. There is no requirement that the decision-maker have medical qualifications. As the decision-maker, he or she is analysing and weighing all of the evidence, both medical and otherwise, and coming to a decision whether a person claiming DSP meets all of the criteria set out in s 94 including the assessment of the impairment under the relevant impairment tables. On the material that I have, the JCA Assessor is not a decision-maker.
The passage from Muir has been referred to in a number of previous Tribunal decisions including Re Uebergang and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[58] (Uebergang), to which the Secretary has referred me. Before referring to Muir, the Tribunal in Uebergang said:
“ The Tribunal recognises that a Job Capacity Assessment is not about diagnosis or prognosis of a person’s medical condition. Rather, its focus is drawing on the information provided by treating doctors and specialists when making assessments and applying the assessor’s specialised knowledge and experience in identifying barriers to employment, interventions, available programs and suitable occupations to determine a person’s impairment rating and work capacity. …”[59]
I agree that this is so but only if it is established by the evidence that the JCA Assessor does have the specialised knowledge referred to in that passage.
[58] [2011] AATA 642; Senior Member Dunne and Professor Reilly AO, Member
[59] [2011] AATA 642 at [28]
The evidentiary weight to be given to a diagnosis where there may be differing views
Ms Koya referred me to the case of Harris v Secretary, Department of Employment and Workplace Relations,[60] in which Gyles J said that care had to be taken to considering Mrs Harris’s entitlement to a DSP at the date of her claim and in the 13 week period after that:
“… 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.”[61]
[60] [2007] FCA 404; (2007) 158 FCR 252; 45 AAR 247; Gyles J
[61] [2007] FCA 404; (2007) 158 FCR 252; 45 AAR 247 at [1]; 253; 248
It is apparent from a later passage in his Honour’s judgment in that case that care must be taken when considering medical evidence that includes a diagnosis of a particular condition but where others, be they medical practitioners or otherwise, question that diagnosis. He was concerned with a finding that Ms Harris had been severely disabled by, most importantly, chronic pain. The passage is lengthy but relevant in this case and not qualified by the appellate court on appeal:[62]
“16 The finding that the chronic pain had not been diagnosed, treated or stabilised is puzzling. Pain had been diagnosed and treated at the time of the claim in 2004 and it had persisted and was treated for a two year period thereafter. There was a question as to whether the pain should be assessed as an aspect of the relevant portion of the body under Table 3 or as a separate condition under Table 20. However, there was no suggestion in any of the material that the condition was temporary. Referral to a pain clinic was not suggested by any of the medical practitioners and that suggestion does not point to any particular diagnosis or treatment which was required. Thus, there could be no judgment as to whether any treatment fell within cl 6 of the Introduction to the Tables.
17 It is troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment. My initial impression, having read s 94 of the Social Security Act 1991 and the Tables, was that the AAT should not have rejected the application on that basis. Having considered the helpful arguments of counsel on the point, I remain of that view.
18 It may be expected that an applicant for a benefit such as involved here will present with a properly prepared application supported by a treating doctor. It does not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. No doubt, the decision maker is entitled to make its own investigation of the claim and to form a view adverse to the claimant based upon that investigation. The Departmental procedures and manuals that are in evidence provide for that. That is a very different thing from the decision maker rejecting a claim because it speculates that a hypothetical third party might come to an adverse opinion. That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
19 The AAT stands in the shoes of the Department and is in precisely the same situation as the decision maker. The fact that, as a practical matter, it chooses to conduct quasi-adversarial proceedings and does not have available direct access to medical specialists for the purposes of investigation, does not change the nature of the function being performed by it. The provisions of s 33 of the AAT Act give ample scope for the AAT to arrange investigation of a claim. The decision maker is bound to use his or her best endeavours to assist the AAT to make its decision (s 33(1AA)). The AAT has inquisitorial powers and may exercise them where appropriate. (See, generally, McDonald v Director-General of Social Security (1984) 1 FCR 354.) It is not, of course, every case that will require such measures. In general, an applicant for a benefit must satisfy the decision maker of the necessary criteria. However, cases such as this may demand such an approach (cf Prasad v Minister for Immigration and Ethnic Affairs (1985) 6 FCR 155 at 169–170; Luu v Renevier (1989) 91 ALR 39 at 49–50). The AAT did not arrange investigations to test the validity of the speculation about each condition. It should have made a decision made on the material before it without taking account of hypothetical third party investigations.”[63]
Is Mrs Eid qualified to receive DSP?
[62] Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130; 46 AAR 83; 97 ALD 534; French, Tamberlin and Rares JJ
[63] [2007] FCA 404; (2007) 158 FCR 252; 45 AAR 247 at [16]-[19]; 257-258; 252-23
A.The relevant period
The period during which I must consider Mrs Eid’s entitlement to DSP begins on 19 December 2011 when she is taken to have lodged her claim and extends for a period of 13 weeks after that time. When assessing her impairment under s 94(1)(b), regard must be had to Schedule 1B as at 19 December 2011. If she is not qualified for DSP on that day, regard must then be had to Schedule 1B in the period up to and including 31 December 2011 and to the Impairment Tables from 1 January 2012.
Dr Sillcock also believes that Mrs Eid suffers from depression. She noted that she had previously taken Cymbalta and Avanza and was then taking another antidepressant. Mrs Eid does not go out much socially and does not have friends as she does not trust anyone.
In her oral evidence, Dr Sillcock said that Mrs Eid had a history of having received treatment for Depression some six years earlier. She found it difficult to separate the conditions of Fibromyalgia and Depression because they often go hand in hand. In Mrs Eid’s case, there is a long standing family history that predisposes her to Depression. Dr Sillcock did not think that it was likely that there would be any significant improvement in Mrs Eid’s conditions because she had suffered from them for such a long period. She did not think that Mrs Eid ’s depression warranted treatment by a psychiatrist. It was being managed by her general medical practitioner and a psychologist.
In her oral evidence, Dr Sillcock said that Mrs Eid also becomes very fatigued. She cannot separate the cause of that fatigue by particular reference to either her Fibromyalgia or Depression. Depression does not necessarily lead to any functional impairment as a lot of people function almost normally despite suffering from it. Others do not and yet others fluctuate in their ability to function.
Dr Sillcock considered that Mrs Eid suffers from the conditions of Fibromyalgia and Depression and that they are permanent. As a result of them, Mrs Eid would be unable to work for 15 hours of more within the next two years. Dr Sillcock thought that she should be assessed under Table 20 of Schedule 1B relating to chronic fatigue or pain and not under Table 5 relating to Spinal Function. Under Table 20, Dr Sillcock assessed the Fibromyalgia as 20 points. She rated Mrs Eid’s depression as 10 points.
JOB CAPACITY ASSESSMENT REPORTS
JCA Report dated 11 March 2011
The first Job Capacity Assessment Report (JCA Report) is dated 11 March 2011. The assessor is not named but is identified by a code. He or she was described as a Provisional Psychologist who is also a JCA Assessor. It is said at the beginning of the JCA Report that there is a Contributing assessor but that person is designated by the same code as the JCA Assessor. That person is described as a Registered Psychologist, a JCA Assessor and as “Other”.
On the second page of the JCA Report, the JCA Assessor has listed the two conditions identified by Dr D’Argent in the following way:
| “Medical Condition Details | ||||||
Condition: | Depression | Type: | Permanent | |||
This condition is: | Fully Diagnosed | |||||
Remarks: | The treating doctor’s report confirms the diagnosis of depression with a date of onset as 2005. Past treatment has been medication (anti-depressants). Current treatment includes Avanza (30mg) and future planned treatment is for current medication is to continue. | |||||
References Used: | ||||||
Reference ID | Dated | Form | Source | |||
683428 | 28/02/2011 | Discussion | Client/Advocate | |||
683435 | 17/02/2011 | Report | Treating Health Professional | |||
683555 | 7/02/2011 | Report | Treating Health Professional”[86] | |||
Condition: | Spinal Disorder-Other | Type: | Permanent | |||
This condition is: Fully Diagnosed. | ||||||
Remarks: | The treating doctor’s report confirms the diagnosis chronic back pain with a date of onset as 2007. Past treatment has included physiotherapy. Current treatment is conservative. Planned future treatment may include physiotherapy. | |||||
References used: | ||||||
Reference ID | Dated | Form | Source | |||
683428 | 28/02/2011 | Discussion | Client/Advocate | |||
683435 | 17/02/2011 | Report | Treating Health Professional | |||
683555 | 7/02/2011 | Report | Treating Health Professional”[87] | |||
[86] T documents; T6 at 24
[87] T documents; T6 at 24
Under the heading of “References” in the JCA Report, the JCA Assessor set out the following statement:
“Information/evidence considered in preparation of this assessment included but was not limited to the following”.[88]
Listed under this statement were references to a discussion with Mrs Eid on 28 February 2011 and reports dated 7 February and 17 February 2011 from the Treating Health Professional, Dr D’Argent.
[88] T documents; T6 at 24
There then followed a statement headed “Impairment”:
“No verified Permanent, Fully Diagnosed, Treated and Stabilised conditions have been recorded, therefore impairments cannot be recorded.”
This was followed by the identification of a number of “Barriers to be addressed” and then the “Support Requirements” and the period for which they were required. The barriers identified in the report together with their impact on employment were: Psychological/psychiatric condition limiting, among other things, her ability to interact with others in a variety of contexts; Family relationship breakdown; Other legal barrier being possible legal assistance regarding separation and custody issues and limited employment history; Limited employment history restricting work choices; and Limited work goals restricting work choices due to lack of knowledge and consideration of the variety of potential work options.
Under the heading of “Work Capacity”, the JCA Assessor considered Ms Eid’s capacity at various levels. I will set out only the description and Rationale given for each rather than the assessment of suitable work and examples of that work:
“Temporary (Reduced) Work Capacity: 0-7 hours per week
Start Date: 28/02/2011 End Date: 28/05/2011
Rationale:It is recommended that Mrs Eid has a limited work capacity for 0-7 hours per week until 28/05/2011 due to the severe impact of an exacerbation of a permanent medical condition. This will allow Mrs Eid to engage in further treatment such as counselling.
Baseline Work Capacity: 15-22 Hours per week
(Excludes any temporary impacts noted above)
Rationale:Due to the moderate impact of depression, Mrs Eid’s work capacity is assessed as 15-22 hours per week. This condition depression is likely to interfere with her ability to persist with work activities for prolonged periods due to limited mental and physical endurance.
…
Capacity for work within 2 years with Intervention: 23-29 Hours per week
Rationale:Mrs Eid’s future work capacity is likely to increase to 23-29 hours per week with intervention from a Disability Employment Management services to support her to identify suitable employment options and to build overall work capacity.
…
Capacity for work within 2 years with Intervention: 15-22 Hours per week
Rationale:Mrs Eid has a limited work capacity for 15-22 hours per week due to the impact of a permanent medical condition and could be expected to retain this capacity without intervention.
Fully Diagnosed Treated and Stabilised Work Capacities only
The customer’s FDTS work capacities are 30+ hours per week, as the customer does not have any permanent, fully diagnosed, treated and stabilised medical conditions.”[89]
[89] T documents; T5 at 26
The JCA Assessor identified four “Interventions” with accompanying outcomes or improvements that he or she expected to flow from each:
“Intervention:
Other medical intervention (specify) (M56)
Expected outcomes/improvements:
Mrs Eid will benefit from continuing with GP care to link into treatment and support services to control and stabilise this recent exacerbation of her medical condition.
Intervention:
Psychological/cognitive assessment intervention (P55)
Expected outcomes/improvements:
Mrs Eid may benefit from psychological counselling and counselling to specific relationship issues and domestic violence. Information was provided to Mrs Eid for community services that provide counselling and support. It is expected the exacerbation in symptoms she is currently experiencing will improve.
Intervention:
Legal advice/legal aid (L51)
Expected outcomes/improvements:
Mrs Eid may benefit from legal advice pertaining to her separation and potential custody issues.
Intervention:
Vocational rehabilitation (V51)
Expected outcomes/improvements:
To identify transferable skills and suitable job options to obtain sustainable employment in the open labour market.”[90]
[90] T documents; T5 at 26-27
The JCA Assessor provided additional comments in relation to Mrs Eid’s education, employment history and goals, medical issues and social issues and concluded with a recommendation to refer her to Disability Management Services on or after 28 May 2011 to assist her with a vocational rehabilitation programme to assist her with a gradual return to work. I note particularly the comments in relation to Mrs Eid’s back condition:
“Mrs Eid also reported that she has a long standing back condition. She described symptoms of pain and restriction in her physical movements. She stated she is unable to sit or stand in one position for more than 30 minutes. She said she takes pain medication including Neurofin [sic] each day and sees a physiotherapist and has a massages [sic] when she can afford it.
The treating doctor confirms Mrs Eid has a back injury that restricts her ability to sit and stand in one position for more than 30 minutes. The completed medical certificate indicates this condition has a fair prognosis into the future. It is considered that Mrs Eid’s back condition is not optimally treated or stabilised at present. With further treatment for her back injury, Mrs Eid’s functional ability may improve within the next 24 months.”[91]
[91] T documents; T5 at 27
JCA Report dated 12 July 2011
From the identifying code given in place of the Assessor’s name, it would appear that the JCA Report was not prepared by the same JCA Assessor who had completed the earlier report. I will not set out the material as I did for the previous report for it takes the same form as the earlier report and much of its information is similar. Instead, I will note some of the similarities and refer to additional material.
As with the earlier report, two medical conditions are recorded: Depression and Spinal Disorder. Both are described as being of the “Type” that is “Permanent”. The JCA Assessor has written of the first:
“Mrs Eid reported that she has experienced depression for several years as a result of her marriage breakdown. She described her symptoms to include depressed mood, over sleeping, difficulty waking and tearfulness. She said she is currently taking anti-depressant medication (Avanza 30 mg) and had seen a counsellor once in the past few months. Mrs Eid described her daily routine involves getting children to school, collecting them in the afternoon and preparing meals. She stated she returns to bed once she has dropped the children to school. Mrs Eid reported her symptoms have worsened in the past few months and she said she may consider recommencing seeing a psychological counsellor.
Dr D’Arant confirms that Mrs Eid’s depression is a reaction to her marriage breakdown and that treatment currently includes anti-depressant medication which is planned to continue into the future.
This condition is not fully diagnosed, treated and stabilised as client has not sought optimal treatment.”[92]
The references used by the JCA Assessor in making these remarks were shown as reports by “External Specialists” dated 14 June 2011, 17 February 2011 and 15 March 2011. Those reports do not appear in the T documents or other material that I have.
[92] T documents; T9 at 40
The same reports were used by the JCA Assessor in formulating the following remarks regarding Mrs Eid’s Spinal Disorder:
“Mrs Eid also reported that she has a long standing back condition. She described symptoms of pain and restriction in her physical movements. She stated she is unable to sit or stand in one position for more than 30 minutes. She said she takes pain medication including Neurofin each day and sees a physiotherapist and has a massages [sic] when she can afford it.
The treating doctor confirms Mrs Eid has a back injury that restrict [sic] her ability to sit and stand in one position for more than 30 minutes. The completed medical certificate indicates this condition has a fair prognosis into the future. It is considered that Mrs Eid’s back condition is not optimally treated or stabilised at present. With further treatment for her back injury, Mrs Eid’s functional ability may improve within the next 24 months.
This condition is not fully diagnosed, treated and stabilised as client has not sought optimal treatment.”[93]
[93] T documents; T9 at 40
JCA Report dated 24 January 2012
The JCA Report dated 24 January 2012 is in a form similar to the previous two reports. It was prepared by a JCA Assessor although the JCA Assessor is now identified by name rather than by a number. As she was not called to give evidence, I do not think it fair to name her in these reasons and note only that she is a Registered Occupational Therapist as well as a JCA Assessor. The JCA Report names a Contributing assessor by name. She is a Registered Psychologist as well as a JCA Assessor. Two conditions are identified in the report: Spinal Disorder – Other and Depression. Both are described as a “Type” that is “permanent”.
With regard to Mrs Eid’s condition of Spinal Disorder – Other, the JCA Report summarised Mrs Eid’s current symptoms, current, past and future treatment and then followed with a Prognosis:
“Medical report identifies Osteoarthritis of the Lower Back.
Onset/diagnosis – Medical report confirms onset of symptoms in 2007 with diagnosis confirmed 3/6/11 following CT scan of lower back, which showed facet joint degeneration disease at L4/5 and L5/S1.
Current Symptoms/Functional limitations – Medical report identifies intermittent back pain, however, customer reports constant lower back pain that can spread to the middle back, neck and bilateral upper and lower limbs. Symptoms are reportedly aggravated by prolonged static postures. Sitting is limited to 1 hour, standing to 10-15 mins and walking to 30mins. Customer reportedly avoids stairs, squatting, kneeling and bending. She is independent with personal care. She is able to perform household chores such as vacuuming/mopping with pacing. She relies on her children to assist with some activities such as shopping/carrying groceries.
Current treatment – Neurofen/Advil approx every 4 hours, voltaren gel, massage.
Past treatment – Customer reports past treatment of medication and Physiotherapy on and off for 2-3 years. It was noted that the physiotherapy report identifies a chronic pain problem with significant fear avoidant behaviour. Mr Bell (Physiotherapist) also indicates that the condition could not be managed effectively with physiotherapy alone.
Future Treatment – Customer has been referred to a Pain Specialist and has her initial assessment on 31/1/12. As discussed with Dr. Sandra Armstrong, the customer may benefit from pain management interventions such as facet joint injections and pain management program that includes cognitive behavioural therapy.
Prognosis – Condition is considered to be permanent but not fully treated and stable given the potential for improvement from planned treatment. Dr Armstrong confirmed in discussions with Dr Saghir that it is too early to determine whether there will be a continuing inability to work.”[94]
[94] T documents; T13 at 73
With regard to Mrs Eid’s condition of Depression, the JCA Assessor again set out her history. She recorded that:
“… depressed mood, stress, social withdrawal, poor sleep and fatigue reportedly impact on the customer’s motivation, social function and ability to cope with pressure/stress.”[95]
Mrs Eid’s past treatment with Avanza and approximately ten counselling sessions with a Psychologist were also recorded. Those sessions took place between April and November 2011 but were recorded as being of limited benefit. No future treatment was planned. A “Prognosis” followed:
“… Condition is considered to be permanent and likely to persist to the next 2 years. Condition is not considered to be fully diagnosed, treated and stable. As discussed with … (Registered Psychologist, Contributing Assessor) and Dr … (HPAU), given the persisting nature of the symptoms and lack of response to treatment to date it would be reasonable to expect that the customer seek assessment by a Psychiatrist to review diagnosis and determine further treatment needs.”[96]
[95] T documents; T13 at 73
[96] T documents; T13 at 74
Employment Services Assessment Report dated 2 April 2012
What I will continue to refer to as a JCA Report prepared on 2 April 2012 is, in fact, an Employment Services Assessment Report. It is in a form similar to the previous JCA Report and prepared by a JCA Assessor who is again identified by name. She is a Registered Psychologist as well as a JCA Assessor but is not the same JCA Assessor who prepared the JCA Report dated 24 January 2012. Nobody is named as a Contributing Assessor on the front page under “Assessment Details” but reference is made to such a person on the second. The Contributing Assessor is also a Registered Psychologist and she was also the Contributing Assessor to the JCA Report dated 24 January 2012.
The JCA Assessor considered three conditions, each of which was described as “Type: Permanent”: Spinal Disorder-Other; Depression and Fibromyalgia. The JCA described the first as “Verified by medical evidence; Fully Diagnosed” and the second two as “Verified by medical evidence”. She summarised the current, past and future treatments for each and then included a section headed “Prognosis” in respect of the conditions other than Fibromyalgia.
Following that section, the JCA Assessor set out the references she had used. For Spinal Disorder – Other, she had referred to reports dated 3 January 2012, 16 February 2011 and 25 July 2011 prepared by the “Treating Health Professional”. For Depression, she had referred to the first two of those reports and for Fibromyalgia she had referred to a report dated 13 February 2012 by an “External Specialist”.
At a later stage in the report, the JCA Assessor sets out “References” followed by a list of material preceded by the statement: “Information/evidence considered in the preparation of this assessment included but was not limited to the following: …”.[97] The information is described by reference to the source of the information, to its author and the “Field” of the author. So, for example, Mrs Eid’s treating doctors are described as “Treating Health Professional” under the general heading of “Source” and as “GP/Treating Doctor” under “Field”. When reference is made to a JCA Report, the Source is described as “Assessor” or “Contributing Assessor” and the Field as “Psychologist”.
[97] T documents; T22 at 97
Included in the list of References that follows is a reference to the discussions with the Contributing Assessor and the HPAU occurring on 19 January 2012, the report dated 3 January 2012 of Dr Saghir, the JCA Reports dated 28 February 2011 and 24 June 2011, Dr D’Argent’s report dated 16 February 2011 and a report by an “External Specialist” (who is presumably Dr Gassin) dated 13 February 2012. All of these appear in the T documents but reference is also made to a report dated 25 July 2011 by Mr Jonathan Bell, who is a Physiotherapist and a Treating Health Professional. His report does not appear in the material.
The JCA Assessor’s remarks headed “Prognosis” in relation to the first two conditions and an equivalent passage in relation to Fibromyalgia read:
Spinal Disorder – Other
“Prognosis – Condition is considered to be permanent but not fully treated and stable given the potential for improvement from planned treatment. Dr Armstrong confirmed in discussions with Dr Saghir that it is too early to determine whether there will be a continuing inability to work.”[98]
Depression
“Prognosis – Condition is considered to be permanent and likely to persist to the next 2 years. Condition is not considered to be fully diagnosed, treated and stable. As discussed with … (Registered Psychologist, Contributing Assessor) and Dr … (HPAU), given the persisting nature of the symptoms and lack of response to treatment to date it would be reasonable to expect that the customer seek assessment by a Psychiatrist to review diagnosis and determine further treatment needs.”[99]
[98] T documents; T22 at 96
[99] T documents; T22 at 96-97
Fibromyalgia
“This condition is not considered to be fully treated and stabilised as the client has not consulted a specialist for management.”[100]
[100] T documents; T22 at 97
The JCA Assessor has identified nine interventions: specialist assessment; pain management program; psychiatric services/treatment; psychological/cognitive assessment/intervention; disability management education/counselling; vocational rehabilitation; work experience; counselling; and support groups.[101]
[101] T documents; T22 at 99-100
THE MEANING OF “IMPAIRMENT”
The word “impairment” is not defined in s 94 or elsewhere in the SS Act including Schedule 1B. It is defined in the Impairment Tables but, whether or not regard can be had to the definition, depends on whether the SS Act applies in its form before or after 1 January 2012. I return to that issue below. Although I come to a view on it, I have considered the matter by reference to both and will do so in relation to this as well.
Before 1 January 2012
Before 1 January 2012, when the Impairment Tables were set out in Schedule 1B to the SS Act, reference could be made to them to ascertain the meaning to be given to “impairment” in s 94(1)(a). This follows from the fact that the Schedule is no less part of the SS Act than s 94. As s 13(1)(b) of the Acts Interpretation Act 1901 now provides, “All material from and including the first section of an Act to the end of: … if there are one or more Schedules to the Act – the last Schedule to the Act; is part of the Act.”[102]
[102] Section 13(1)(b) was amended to this form by the Acts Interpretation Amendment Act 2011, s 3, Schedule 1; Item 22 with effect from 27 December 2011: s 2, Item 2. Before that, s 13 was to the same effect in this context for s 13(2) provided: “Every schedule to an Act shall be deemed to form part thereof.”
When regard is had to Schedule 1B, it appears that there is no definition. There is, instead, text from which the following propositions can be drawn:
(1)“These Tables represent an empirically agreed set of criteria for assessing the severity of functional limitations for work related tasks and do not take into account the broader impact of functional impairment in a societal sense. For this reason, no specific adjustments are made for age and gender. …”[103]
(2)“These Tables … assign ratings in proportion to the severity of the impact of the medical conditions on normal function as they relate to work performance. These Tables are function based rather than diagnosis based. …”[104]
(3)“… In using these tables ratings can only be assigned for conditions where there is an associated current loss of function or where prolonged loss of function would be expected in most work situations.”[105]
(4)“A rating is only to be assigned after a comprehensive history and examination. For a rating to be assigned the condition must be a fully documented, diagnosed condition which has been investigated, treated and stabilised. The first step is thus to establish a working diagnosis based on the best available evidence. Arrangements should be made for the investigation of poorly defined conditions before considering assigning an impairment rating….”[106]
(5)“The condition must be considered to be permanent. Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than two years. A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”[107]
[103] Schedule 1B; cl 1
[104] Schedule 1B; cl 2
[105] Schedule 1B; cl 3
[106] Schedule 1B; cl 4
[107] Schedule 1B; cl 5
I considered the meaning of the word “impairment” in the case of Re Baum and Secretary, Department Of Education, Employment and Workplace Relations[108] in relation to the interpretation of s 94 and the application of Schedule 1B. After noting that the word is not defined in either s 94 or in Schedule 1B, I wrote:
38. The word ‘impairment’ is not defined in the SS Act and nor is its meaning explained in the Impairment Tables.[109] The ordinary meaning of the word ‘impair’, from which the word ‘impairment’ is derived, is ‘… to damage or weaken something, especially in terms of its quality or strength. …’.[110] Taber’s Cyclopedic Medical Dictionary[111] defines it as ‘Any loss or abnormality of psychological, physiological, or anatomical structure or function.’ In formulating the Guides to the Evaluation of Permanent Impairment, the American Medical Association has adopted this meaning of ‘impairment’: ‘A loss, loss of use, or derangement of any body part, or organ system, or organ function.’[112]
39. These meanings have in common an element of loss or abnormality in a body part or system or an element of loss or partial loss of the function of a body part or system when regard is had to what is normal. What is normal varies but I will return to this below. When read in its context of s 94 and Schedule 1B, it would seem that the word ‘impairment’ is intended to incorporate those elements of loss. That context is the provision of income support for those who have an impairment that has been assessed against the dual standards of the functional loss it results in and of its impact upon their doing work independently of a program of support within a certain period of time. Loss or abnormality in a body part or system or loss or partial loss of the function of a body part or system may result in a loss of function. A loss of function may have an impact upon the ability of a person to work but not necessarily so.[113] Therefore, it is important to distinguish between the task of finding whether or not a person has an impairment and, if so, the task of determining whether that impairment has an effect upon his or her ability to work.
40. A decision whether a person has a physical, intellectual or psychiatric impairment must be made on the evidence or material before the Tribunal. Some of that evidence will come from the person claiming the DSP when describing the loss of function he or she experiences. Those who live with the person or who know him or her may be able to speak about their observations of the difficulties that he or she appears to experience. His or her medical practitioner or other medical professional are likely to have made observations in the course of their clinical examinations. At this stage, the focus is upon the impairment and so on the loss of function. It is not upon the cause of that impairment or on the extent or severity of the impairment.”[114]
[108] [2008] AATA 1066; (2008) 49 AAR 157
[109] Before its repeal and substitution by the Social Security and Veterans’ Affairs Legislation Amendment (Family and Other Measures) Act 1997, s 3, Schedule 16, item 4, the Impairment Tables stated that “for the purposes of these Tables, impairment refers to any loss or abnormality of psychological and/or physiological function remaining after appropriate medical treatment and rehabilitative processes have been completed. …”: Introduction, [3].
[110] Chambers
[111] 17th ed, 1993, FA Davis and Company, Philadelphia
[112] Guides to the Evaluation of Permanent Impairment, 5th edition, 2002 at 2 and 601
[113] See [63] below
[114] [2008] AATA 1066; (2008) 49 AAR 157 at [38]-[40]; 170-171
I think that this meaning remains equally valid when I look once more at s 94 and Schedule 1B. That Schedule refers to “functional limitations for work related tasks” when referring to impairment in cl 1. The reference to “functional limitations” is consistent with the usual meaning of the word “impairment” and the focus on the precise nature of those limitations as being “for work related tasks” is consistent with the purpose of the Impairment Tables. When the word “impairment” appears alone, there is no suggestion that the word, when it appears without qualification, should be read as a functional limitation of a particular type or for a particular purpose or for a particular time period. Earlier in cl 1, the statement is made that the Tables are designed to assess “the effect of … impairments, if any, on … ability to work”. That is the focus of the Tables in Schedule 1B but it does not mean that the word “impairment” is narrowed.
Schedule 1B does not add qualifications of permanency to the word “impairment” but rather to the “condition” giving rise to the impairment. When read with cl 2, cl 5, for example, requires that the condition giving rise to the functional impairment must be considered to be permanent. The likelihood, or perhaps more accurately the unlikelihood, of functional improvement is simply one of the considerations referred to in cl 6 as means of assessing whether the condition is fully diagnosed, treated and stabilised as required by cl 5. As cl 5 states, “… A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years.”
The omission of any qualification to the word “impairment” in s 94(1)(a) is to be contrasted with a provision such as s 94(2)(b). In s 94(2)(b), Parliament has qualified the impairment that prevents a person from doing any work by reference to its being of itself sufficient to prevent him or her from doing any work or a training activity in the circumstances prescribed in ss 94(2)(b) as qualified by s 94(3). The lack of qualification attached to the word “impairment” in s 94(1)(a) suggesting any degree of permanence or otherwise is consistent with the meaning I have attributed to it.
After 1 January 2012
After 1 January 2012, s 3 of the Determination provided:
“In this Determination: … impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
As the Impairment Tables are now a legislative instrument and not a Schedule to the SS Act, the general rule is that the two are now no longer interpreted as a whole. As a legislative instrument, the expressions they use must have the same meaning as the SS Act and they must be read and construed subject to that Act and so that they do not exceed the rule-making power. This is the effect of ss 13(1)(b) and (c) of the Legislative Instruments Act 2003 (LI Act).
The general rule is set out in, among others, Secretary, Department of Health, Housing, Local Government and Community Services v Kaderbhai[115] in which reference was made to the passage from the judgement of Brennan J in Webster v McIntosh:
“… the intention of Parliament in enacting an Act is not to be ascertained by reference to the terms in which a delegated power to legislate has been exercised.”[116]
The same principle underpinned the statement by Deane J in Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation:[117]
“It is generally accepted that one looks at regulations only as an indication of what a government department thinks about the construction of an Act.”[118]
[115] (1994) 122 ALR 577 at 583-4 per Foster, Whitlam and Cooper JJ
[116] (1980) 32 ALR 603 at 606
[117] [1985] HCA 20; (1985) 156 CLR 651
[118] [1985] HCA 20; (1985) 156 CLR 651 at 652
There are exceptions to the general rule. These are dealt with comprehensively in Statutory Interpretation in Australia by DC Pearce and RS Geddes[119] (Pearce and Geddes) and I will do no more than outline them. One exception occurs if the Act deems the provisions of the delegated legislation to be part of the Act or provides that delegated legislation is to be treated as if enacted as part of that Act.[120] A further exception may arise if a statutory provision were to permit exceptions to be made to it by regulations. In both those exceptions, it may be permissible to refer to the regulations as an aid in the interpretation of the provision.[121]
[119] Butterworths, 7th edition, 2011 at [3.41]-[3.42]
[120] See Pearce and Geddes at [3.42] and authorities cited therein.
[121] The second exception was discussed by Moore J in Ward v Commissioner of Police [1998] FCA 9; (1998) 80 FCR 427 at 437-438 in the context of a discussion of a wider group of exceptions but found not to assist.
In O’Connell v Nixon,[122] the Victorian Court of Appeal considered a provision of an Act providing that it was subject to delegated legislation . Nettle JA, with whom Chernov and Redlich JJA agreed,[123] said in O’Connell v Nixon:[124]
“… Just as when a section of an Act of Parliament expresses itself as being subject to another section of the Act it may be taken as meaning that the latter is to some extent intended to prevail, so too when a section of an Act of Parliament expresses itself as subject to regulations it may be taken as meaning that the latter is to some extent intended to prevail. Most importantly, however, the fundamental question is whether the regulations are within the scope of the section, and as a matter of logic and common sense one can hardly come to a view about that without first looking to the regulations to which the section expresses itself to be subject.”[125]
[122] [2007] VSCA 131; (2007) 16 VR 440; Chernov, Nettle and Redlich JJA
[123] [2007] VSCA 131; (2007) 16 VR 440 at [1] and [49]; 441 and 453
[124] [2007] VSCA 131; (2007) 16 VR 440; Chernov, Nettle and Redlich JJA
[125] [2007] VSCA 131; (2007) 16 VR 440 at [28]; 447
These exceptions do not arise in this case but another may. It occurs where the Act “… provides a framework built on contemporaneously prepared regulations”.[126] Initial reference to the delegated legislation may be made:
“… not to construe an overall scheme or to throw light on an ambiguity in a statutory provision but to ascertain what the scheme is.”[127]
[126] Hanlon v Law Society [1981] AC 124 at 193 per Lord Lowry
[127] Brayson Motors Pty Ltd (in liq) v Federal Commissioner of Taxation (1985) 156 CLR 651 at 652 per Mason J
Some thought needs to be given to this exception. Schedule 1B was introduced at the same time as s 94(1) was repealed and replaced with provisions requiring assessment of a person’s impairment according to a set of tables.[128] The tables set out in Schedule 1B assigned a rating to the person’s impairment on the basis of the person’s efficiency in performing a set of defined functions in comparison with the efficiency of a person unencumbered by that impairment. The “impairment” that was assigned that rating was the rating to which reference was made in ss 94(1)(a) and (b). Therefore, the impairment had to be identified before Schedule 1B could be applied and Schedule 1B referred to that impairment. The structure of the SS Act separated identification of the impairment and the assessment of the rating to be given to it. Therefore, there was no need to have regard to Schedule 1B in order to determine what was meant by an “impairment” for the structure of the SS Act was that it was determined under s 94.
[128] Social Security (Disability and Sickness Support) Amendment Act 1991; Act No. 141 of 1991; s 10 and s 2; Schedule 2
In many respects, the repeal of Schedule 1B and its replacement with the Impairment Tables determined by an instrument under s 26(1) of the SS Act has not led to a different outcome. The “impairment” is identified first for the purposes of s 94(1)(a). It is not identified under the Impairment Tables; only the number of points to be assigned to that impairment is assessed under them. Therefore, while it can be said that s 94 and the Impairment Tables form part of a scheme, it is not a scheme of a sort in which Parliament can be said to have envisaged that the meaning to be given to the word “impairment” is to be determined according to the Impairment Tables. Those tables come into play only after the identification of the impairment.
It follows that, in interpreting the word “impairment” in s 94, the meaning attributed to it by the Impairment Tables themselves can have no part to play. As the Impairment Tables only come into play when there is an impairment under s 94(1)(a) of the SS Act, the definition of “impairment” that they contain has no part to play. The meaning to be given to it is determined by the terms of s 94 of the SS Act and it remains unchanged from the meaning it had before the amendments that came into effect on 1 January 2012.
I certify that the one hundred and seventy one preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie,
Signed: ..(sgd)................................................................
Leah Berardi Associate
Date of Hearing 31 May 2013
Date of Decision 8 August 2013
Solicitor for the Applicant Ms Julie Riva
Victorian Legal Aid
Solicitor for the Respondent Ms Stella Koya
DLA Piper
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