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

Richwood and Secretary, Department of Social Services (Social services second review) [2017] AATA 2409 (30 November 2017)
Division:GENERAL DIVISION
File Number: 2017/2757
Re:Fiona Richwood
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:30 November 2017
Place:Brisbane

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

On 20 May 2016 Mrs Richwood lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
·major depression;
·chronic back pain (disc prolapse);
·constipation from colonic atony;
·neuropathic pain – bilateral L5/S1 compression, C6 compression arthritis.
[1] Exhibit 1, T Documents, T20, pages 84 – 114, Mrs Richwood’s Claim for DSP dated 20 May 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mrs Richwood’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T24, pages 126 – 127, Rejection of claim for DSP dated 27 July 2016.
Mrs Richwood has now been granted DSP under a separate, later, DSP claim. However, this application concerns whether Mrs Richwood was eligible for DSP between 20 May 2016 and 19 August 2016.

Claim History

Mrs Richwood sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[3] Exhibit 1, T Documents, T31, pages 146 – 151, Decision of ARO dated 17 November 2016.
Mrs Richwood had not actively participated in a program of support requirement.[3]
Mrs Richwood lodged an application for review with the Social Services and Child Support Division (“SSCSD”) on 3 January 2017.[4] The SSCSD rejected Mrs Richwood’s claim and affirmed the ARO’s decision on 20 April 2017.[5]
[4] Exhibit 1, T Documents, T34, page 154, AAT 1 request for statement dated 3 January 2017.
[5] Exhibit 1, T Documents, T2, pages 4 – 10, SSCSD’s Decision and Reasons for Decision dated 20 April 2017.
Mrs Richwood has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 14 September 2017, Annexure A,
Application for Review of Decision dated 8 May 2017.

ISSUES FOR DETERMINATION

The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mrs Richwood must have a physical, intellectual or psychiatric impairment;
(b)Mrs Richwood’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[7]
(c)Mrs Richwood has a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mrs Richwood meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 20 May 2016), unless

Mrs Richwood becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[8] Therefore, in order to qualify for DSP
Mrs Richwood must have met the Section 94 Requirements between 20 May 2016 and 19 August 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mrs Richwood’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[9]
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

DID MRS RICHWOOD HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
What is an Impairment?

The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.

Mrs Richwood’s medical conditions
Hypothyroidism

In August 2014 Dr Ross, General Practitioner, reported that Mrs Richwood’s thyroid function was being tested and that she was due to see an endocrinologist.[11]
[11] Exhibit 1, T Documents, T4, pages 60 – 62, Mental Health Treatment Plan prepared by Dr Ross dated
1 August 2014.
A bone mineral density report indicated that Mrs Richwood has thyroid disease and that she was at low risk of lumbar spine fracture and low risk of femoral neck fracture.[12]
[12] Exhibit 1, T Documents, T5, page 63, Bone Mineral Densitometry Report dated 20 August 2014.
Dr Tuitoga confirmed in May 2016 that Mrs Richwood had been his patient for the last 10 years and that she suffered from hypothyroidism.[13]
[13] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.

Depression/Anxiety

In August 2014 Dr Ross, General Practitioner, reported that Mrs Richwood had depression, anxiety with occasional panic attacks and that she had previously seen psychiatrists and psychologists and had trialed multiple antidepressants.[14]
[14] Exhibit 1, T Documents, T4, pages 60 – 62, Mental Health Treatment Plan prepared by Dr Ross dated
1 August 2014.
Dr Weate, General Practitioner, reported in May 2016 that Mrs Richwood:[15]
(a)had major depression with lifelong symptoms;
(b)was on medications which had been managed by a Psychiatrist, Dr Diana Hamilton, but that she is no longer seeing her;
(c)has stabilised but her depression still impacted on her function and quality of life;
(d)had declined psychology input; and
(e)had memory, self-care, motivation and interactions with other people affected as a result of her depression.
[15] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
Dr Tuitoga reported in May 2016 that Mrs Richwood suffered from major depression.[16]
[16] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.
In July 2016 Dr Tuitoga reported that:[17]
(a)Mrs Richwood’s psychiatrist had recently changed her antidepressant medication and she had an allergic reaction to it; and
(b)Mrs Richwood had a depressed mood, was anxious and feels like lashing out at others and was not coping well.
[17] Exhibit 1, T Documents, T21, page 115, Medical Certificate dated 5 July 2016.
In July 2016 Dr Weate reported that Mrs Richwood had poor motivation, poor concentration, decreased problem-solving, emotional lability and poor coping skills and was taking antidepressant medication.[18]
[18] Exhibit 1, T Documents, T22, page 116, Medical Certificate dated 19 July 2016.
Dr Tuitoga reported in August 2016 that Mrs Richwood’s major depression was stable.[19]
[19] Exhibit 1, T Documents, T25, page 128, Report of Dr Tuitoga dated 8 August 2016.
In August 2016 Dr Hamilton, psychiatrist, reported that Mrs Richwood suffers from severe chronic depression, that it had become stable and needed long-term medication, that it had become resistant to treatment, and, as a result, Mrs Richwood is unable to work.[20]
[20] Exhibit 1, T Documents, T28, page 133, Report of Dr Hamilton dated 23 August 2016.

Lumbar Spine

In February 2015 Dr Ross referred Mrs Richwood to Dr Mark Craig, a General Practitioner,[21] regarding her low back pain and left leg pain. Dr Ross informed Dr Craig that Mrs Richwood was managing the pain with simple non-opioid analgesia and was having chiropractic care but that she thought this was making the pain worse. She had been referred for clinical pilates but had yet to start.[22]
[21] Dr Craig trades under the name “back doctor” and specialises in musculoskeletal medicine: Exhibit 2, Secretary’s
Statement of Facts, Issues and Contentions dated 14 September 2017, Annexure B.
[22] Exhibit 1, T Documents, T9, pages 69 – 70, letter from Dr Ross to Dr Craig dated 27 February 2015.
Dr Weate, General Practitioner, reported in May 2016 that Mrs Richwood:[23]
(a)had chronic back pain associated with severe disc prolapse;
(b)had been referred to the Princess Alexandra Hospital spinal surgery unit;
(c)found CT-guided injections helped with pain;
(d)cannot bend and has constant dull pain in the lower back and intermittent sharp pain in the thighs;
(e)cannot sit for more than 15 minutes and then needs to walk around or stretch out on the bed;
(f)cannot pick up her grandchildren;
(g)cannot walk more than 100 metres because of exacerbated pain around her pelvic girdle and lower back; and
(h)had neuropathic pain from bilateral L5/S1 compression and C6 compression which benefits from CT guided injection at intervals.[24]
[23] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
[24] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
Dr Tuitoga reported in May 2016 that Mrs Richwood had been his patient the last 10 years and that she suffered from chronic back pain.[25]
[25] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.
In July 2016 Dr Weate reported that Mrs Richwood:[26]
(a)had permanent lower back pain;
(b)was unable to sit for more than 10 – 15 minutes without the pain increasing;
(c)has to stop the car and get out every 20 – 30 minutes to manage the pain;
(d)cannot bend forward to any surface lower than bench height; and
(e)was taking analgesics and having physiotherapy.
[26] Exhibit 1, T Documents, T22, page 116, Medical Certificates dated 19 July 2016.
Dr Tuitoga reported in August 2016 that: [27]
(a)Mrs Richwood:
(i)suffers from severe lower back (L5/S1 disc compression) pain;
(ii)has lost more than half the range of her lumbar spine movement;
(iii)has had cortisone injections with minimal relief to her pain; and
(b)Mrs Richwood’s back is stabilised but she needs ongoing CT scan guided cortisone injections.
[27] Exhibit 1, T Documents, T25, page 128, Report of Dr Tuitoga dated 8 August 2016.
Dr Tuitoga reported in December 2016 that:[28]
(a)Mrs Richwood’ back pain had been getting worse since the last review;
(b)Mrs Richwood:
(i)has difficulty standing or sitting for more than 15 minutes;
(ii)has to take breaks when she drives;
(iii)needs help in showering and shopping; and
(iv)gets her daughter to get things done for her.
[28] Exhibit 1, T Documents, T33, page 153, Report of Dr Tuitoga dated 19 December 2016.
Dr Tuitoga reported in February 2017 that:[29]
(a)Mrs Richwood’s back condition was now stabilised;
(b)Mrs Richwood had lost more than half the normal movement of the lumbar spine;
(c)according to Table 4 of the Determination the condition was having a severe functional impact on activities involving spinal function warranting a 20 point rating;
(d)Mrs Richwood unable to perform any overhead activities;
(e)Mrs Richwood cannot turn her head or bend her neck without moving her trunk;
(f)Mrs Richwood cannot bend forward to pick up a light object from a desk or table; and
(g)Mrs Richwood cannot remain seated for more than 10 minutes.
[29] Exhibit 1, T Documents, T38, page 161, Report of Dr Tuitoga dated 22 February 2017.
In August 2017 Dr Tuitoga reported that in his opinion having back surgery for her degenerative L4/L5 spine will not make any difference to her back pain.[30]
[30] Exhibit 4, Report of Dr Tuitoga dated 29 August 2017.

Cervical Spine

A CT scan of Mrs Richwood’s cervical spine in May 2015 showed degenerative changes, with intraforaminal compression of left exiting C6 nerve root.[31]
[31] Exhibit 1, T Documents, T10, page 71, CT report dated 21 May 2015.
Dr Weate reported in August 2016 that Mrs Richwood’s neck pain symptoms:[32]
(a)have been ongoing for at least five years and have gradually worsened despite physiotherapy, simple pain relief, CT nerve root injections;
(b)are likely to persist/relapse over the next two years.
[32] Exhibit 1, T Documents, T26, page 131, Report of Dr Weate dated 11 August 2016.
Dr Tuitoga reported in August 2016 that Mrs Richwood: [33]
(a)suffers from neck pain;
(b)has lost more than half the range of her neck movement;
(c)has had cortisone injections with minimal relief to her pain; and
(d)the neck is stabilised but she needs ongoing CT scan guided cortisone injections.
[33] Exhibit 1, T Documents, T25, page 128, Report of Dr Tuitoga dated 8 August 2016.
A further CT scan of Mrs Richwood’s cervical spine in November 2016 found significant stenosis of the exit foramen for the left C6 nerve root and to a lesser degree C7 and that injection under CT guidance may prove beneficial in this case.[34]
[34] Exhibit 1, T Documents, T32, page 152, CT report dated 29 November 2016.
Dr Tuitoga reported in February 2017 that Mrs Richwood had lost more than half the normal movement of her neck.[35]
[35] Exhibit 1, T Documents, T38, page 161, Report of Dr Tuitoga dated 22 February 2017.

Chronic Constipation

In November 2014 Mrs Richwood had a colonoscopy and gastroscopy which found that Ms Richard suffered from haemorrhoids.[36]
[36] Exhibit 1, T Documents, T6, page 64, Colonoscopy/Gastroscopy Discharge Instructions dated 30 November
2014; T11, page 73, GP Management Plan by Dr Ross dated 26 May 2015.
In December 2015 Dr Ross referred Mrs Richwood to Dr Ramnath, Gastroenterologist and Hepatologist, for an opinion and management. Dr Ross informed Dr Ramnath that:[37]
(a)the endoscopy/colonoscopy in November 2014 had demonstrated a dysplastic sessile polyp as well as helicobacter and that she had tried four different combinations of antibiotics to eliminate the helicobacter;
(b)a colonoscopy in the middle of 2015 was okay with no signs of any polyps; and
(c)Mrs Richwood is really struggling with chronic constipation.
[37] Exhibit 1, T Documents, T12, pages 74 – 75, Letter from Dr Ross to Dr Ramnath dated 11 December 2015.
In February 2016 Dr Sylvia Vigh, Gastroenterologist and Hepatologist, reported that

Mrs Richwood has constipation and obstructive defecation for which she is using Bisalax and coffee enemas and that she had previously seen other gastroenterologists and had a trial of prokinetics but there had been no improvement. Dr Vigh reported that she would organise an anorectal epigram and colonic transit study and asked Mrs Richwood to start using some regular Glycoprep daily, advised her that she would benefit from seeing a physiotherapist and that she would follow her up in the next 3 to 4 weeks. Dr Vigh reported that she may need some advice from a colorectal colleague if there is evidence of slow transit on her studies.[38]
[38] Exhibit 1, T Documents, T13, page 76, Report of Dr Vigh dated 29 February 2016.
The colon transit study was undertaken in March 2016 and found that there is a moderately redundant and delegated transverse colon, but overall colonic transport is markedly slowed.[39] The defaecogram found that there was some incontinence during pelvic floor exercises and straining but no significant effect on the rectum during pelvic floor exercises.[40]
[39] Exhibit 1, T Documents, T14, page 78, Colon transit study dated 18 March 2016.
[40] Exhibit 1, T Documents, T15, page 79, Defaecogram dated 18 March 2016
Dr Stephen Allison, Colorectal and General Surgeon, reported that the results of the defaecogram would indicate there were no easy options to fix the problem. He reported that they could try sacral nerve stimulation although the success rate would be low and it may be best if Mrs Richwood had a stoma. Dr Allison noted that the coffee enemas have been effective but that the physiotherapy had not been helpful.[41]
[41] Exhibit 1, T Documents, T16, page 80, Report of Dr Allison dated 20 April 2016.
Dr Weate, General Practitioner, reported in May 2016 that Mrs Richwood:[42]
(a)had constipation due to colonic atony;
(b)has seen 3 gastroenterologists and a colorectal surgeon;
(c)has a pelvic floor dysfunction and poor colon motility; and
(d)has been offered surgery to create a stoma as an option.
[42] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
Dr Weate reports that the only treatment that works is an enema and that the problem is chronic.[43]
[43] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
Dr Tuitoga reported in May 2016 that Mrs Richwood had been his patient the last 10 years and that she suffered from obstructed defecation due to poor anal stimulation and that she requires surgery to correct her problem but it is not available to the public hospital system and she is financially constrained in getting it done privately.[44]
[44] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.
In July 2016 Dr Weate reported that Mrs Richwood’s chronic constipation was permanent and was causing bloating, flatulence, abdominal pain and that she has to have an enema every 2 days.[45]
[45] Exhibit 1, T Documents, T21, page 115, Medical Certificates dated 5 July 2016.
Dr Tuitoga reported in August 2016 that Mrs Richwood’s chronic constipation was stable.[46]
[46] Exhibit 1, T Documents, T25, page 128, Report of Dr Tuitoga dated 8 August 2016.
Dr Tuitoga reported in February 2017 that Mrs Richwood was now having faecal incontinence and was trying to avoid social contact because of the embarrassment it was causing her.[47]
[47] Exhibit 1, T Documents, T36, page 157, Report of Dr Tuitoga dated 1 February 2017.
Dr Allison reported in May 2017 that Mrs Richwood has permanent poor function of the pelvic floor for which there is no is a cure and that she should consider having a stoma as it may improve function. Dr Allison says that before such procedure was to be considered Mrs Richwood would be considered permanently disabled.[48]
[48] Exhibit 1, T Documents, T39, page 162, Report of Dr Allison dated 10 May 2017.

Ms Tarryn Lawrence, Physiotherapist – Advanced Pelvic Health Clinic, reported that she had been treating Mrs Richwood since January 2017 for chronic constipation and obstructive defecation. Ms Lawrence reports that:[49]
[49] Exhibit 1, T Documents, T40, page 163, Report of Ms Lawrence dated 11 May 2017.
(a)Mrs Richwood had been experiencing worsening symptoms over the last 20 years including:
(i)infrequent opening of bowels requiring daily enema use which means that she needs to be close to a toilet at all times;
(ii)daily abdominal bloating and discomfort;
(iii)daily incomplete emptying of bowels;
(iv)pelvic floor muscle weakness;
(b)these problems are a daily struggle for Mrs Richwood and causes her significant distress;
(c)they affect her ability to participate in normal day-to-day activities outside her home such as social interactions as she is constantly worrying; and
(d)Mrs Richwood is to have ongoing intervention with a colorectal specialist outpatient department at QE2 Jubilee Hospital.

Hips

Dr Tuitoga reported:
(a)in May 2016 that Mrs Richwood had right trochanteric bursitis;[50] and
(b)in August 2016 that Mrs Richwood has had right trochanteric bursitis for more than 2 years and that she has an ultrasound guided cortisone injection every 3 months but was currently stable and would need surgery in the future to fix the condition.[51]
[50] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.
[51] Exhibit 1, T Documents, T27, page 132, Report of Dr Tuitoga dated 19 August 2016.

Other

Dr Tuitoga reported in May 2016 that Mrs Richwood had been his patient for the last 10 years and that, in addition to the other medical conditions referred to above, Mrs Richwood had right knee pain and vitamin B12 and iron deficiency.[52]
[52] Exhibit 1, T Documents, T19, page 83, Report of Dr Tuitoga dated 19 May 2016.

Conclusion on Impairments

The Secretary accepts that Mrs Richwood suffers from an impairment for the purposes of section 94(1)(a) at the Qualification Period.[53]
[53] Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 14 September 2017, para 38.
In light of the above medical evidence the Tribunal finds that at the Qualification Period,

Mrs Richwood suffered from a Mental Health Impairment, a Lumbar Spine Impairment, a Cervical Spine Impairment, a Chronic Constipation Impairment, and a Hip Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the hypothyroidism, right knee pain, vitamin B12 and iron deficiency conditions, there is little to no medical evidence to establish whether this condition was fully treated or stabilised during the Qualification Period. There is also insufficient evidence regarding how these conditions affected Mrs Richwood’s functional capacity during the Qualification Period. As a result the Tribunal is unable to assign an Impairment Rating for these conditions.

DO MRS RICHWOOD’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?

The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[54] They are function based[55] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[56]
[54] Determination, ss 4(2) and 5(2)(a).
[55] Determination, ss 5(2)(b) and (c).
[56] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[57]
(a)Mrs Richwood’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[57] Determination, see s 6(3).
Mrs Richwood’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[58]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[58] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[59] the following must be considered:[60]
(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.
[59] For the purposes of ss 6(4)(a) and (b) of the Determination.
[60] Determination, see s 6(5).
A condition is fully stabilised[61] if:[62]
(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.
[61] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[62] Determination, see s 6(6).
For the purposes of the definition of fully stabilised, reasonable treatment is treatment that:[63]
(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.
[63] Determination, s 6(7).
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, Mrs Richwood’s medical history, in relation to the conditions causing the Impairments, must be considered.[64]

ARE MRS RICHWOOD’S LUMBAR SPINE, CERVICAL SPINE NEUROPATHIC PAIN IMPAIRMENTS PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
[64] Determination, see s 6(2).

In relation to the Neuropathic Pain Impairment, there is no indication when and how this condition was diagnosed. There is insufficient medical evidence concerning the condition for the Tribunal to be able to make a finding as to whether the impairment is fully treated and stabilised. For example, there is no evidence from a pain specialist or neurologist. Therefore, the Tribunal finds that Mrs Richwood’s Neuropathic Impairment is not permanent for the purposes of the Act.
In relation to Mrs Richwood’s Lumbar Spine and Cervical Spine Impairments the medical evidence establishes that these were fully diagnosed. The issue is whether these impairments have been fully treated and fully stabilised.
The Secretary contends that, as at the Qualification Period, Mrs Richwood had not been reviewed by a spinal specialist and therefore the conditions were not fully treated and fully stabilised.[65] However, the JCA reported that Dr Weate advised that further treatment is not likely to significantly increase Mrs Richwood’s ability to function.[66] This has also been confirmed by Dr Tuitoga.
[65] Exhibit 2, Secretary's Statement of Issues, Facts and Contentions dated 14 September 2017, paras 62 – 64.
[66] Exhibit 1, T23, page 119, JCA Report dated 26 July 2016.
Mrs Richwood told the Member conducting the SSCSD hearing that she has now seen a spinal specialist and surgical intervention has been recommended however the waiting list is long.[67] It is unclear, as there is no corroborating evidence from the spinal specialist, of what surgery is planned, whether the surgery is high risk or whether it will assist
[67] Exhibit 1, T Documents, T2, page 7, SSCSD’s Decision and Reasons for Decision dated 20 April 2017,
paras 16 – 18.
Mrs Richwood’s ability to function in a significant way.
A person’s impairment can still be taken to be fully stabilised even if reasonable treatment has not been undertaken, in circumstances where that treatment is not likely to result in a significant improvement in function. There is no indication that surgery treatment is “reasonable treatment”, as defined by the Determination.
In the circumstances the tribunal finds that Mrs Richwood’s Lumbar Spine, Cervical Spine was permanent during the Qualification Period and an Impairment Rating can therefore be assigned.

Using the Impairment Tables

The level of impact of Mrs Richwood’s Impairment has to be assessed against the descriptors[68] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[69]
[68] Determination, see ss 3 and 5(3).
[69] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[70]
[70] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[71]
(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.
[71] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[72]
(a)symptoms reported by Mrs Richwood in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mrs Richwood’s local community.
[72] Determination, see s 8.
Which Tables are appropriate are determined by:[73]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[73] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[74]
[74] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[75]
[75] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[76]
[76] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[77]
[77] Determination, see s 11(5).

Relevant Impairment Table and Impairment Rating

Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a five point rating the corroborating evidence would be to show that
Mrs Richwood has some difficulty in:
(i)activities overhead height (e.g. activities requiring the person to look upwards); or
(ii)bending to knee level and straightening up again without difficulty; or
(iii)turning their trunk or moving their head (e.g. to look to the sides or upwards).
To obtain a 10 point rating the corroborating evidence would need to show that

Mrs Richwood:
(1) …is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a) [she] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b) [she] has difficulty moving [his] head to look in all directions (e.g. turning [her] head to look over [her] shoulder); or
(c) [she] is unable to bend forward to pick up a light object placed at knee height; or
(d) [she] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20 point rating the corroborating evidence would need to show that

Mrs Richwood:
(1) …is unable to:
(a)perform any overhead activities; or
(b)turn [her] head, or bend [her] neck, without moving [her] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Dr Weate, General Practitioner, reported in May 2016 that Mrs Richwood:[78]
·cannot bend and has constant dull pain in the lower back and intermittent sharp pain in the thighs;
·cannot sit for more than 15 minutes and then needs to walk around or stretch out on the bed;
·cannot pick up her grandchildren; and
·cannot walk more than 100 m because of exacerbated pain around her pelvic girdle and lower back.
[78] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
In July 2016 Dr Weate reported that Mrs Richwood:[79]
·was unable to sit for more than 10 – 15 minutes without the pain increasing;
·has to stop the car and get out every 20 – 30 minutes to manage the pain;
·cannot bend forward to any surface lower than bench height;
[79] Exhibit 1, T Documents, T22, page 116, Medical Certificate dated 19 July 2016.
Dr Tuitoga reported in August 2016 that Mrs Richwood has lost more than half the range of her lumbar spine movement.[80]
[80] Exhibit 1, T Documents, T25, page 128, Report of Dr Tuitoga dated 8 August 2016.
Dr Tuitoga reported in October 2016 that Mrs Richwood had restricted back movements:[81]
[81] Exhibit 1, T Documents, T30, page 145, Report of Dr Tuitoga dated 7 October 2016.
Dr Tuitoga reported in December 2016 that:[82]
·has difficulty standing or sitting for more than 15 minutes;
·has to take breaks when she drives;
·needs help in showering and shopping; and
·gets her daughter to get things done for her.
[82] Exhibit 1, T Documents, T33, page 153, Report of Dr Tuitoga dated 19 December 2016.
In July 2016, the JCA reported that Mrs Richwood told them:[83]
(a)She could drive for 20 minutes before pain symptoms exacerbated; and
(b)She cannot pick up a cup from a knee high coffee table but can bend to table height.
[83] Exhibit 1, T Documents, T23, page 123, JCA report dated 26 July 2016.
Dr Weate reported in August 2016 that Mrs Richwood’s:[84]
·neck pain stops her from being able to flex her neck or do prolonged reading/netting or chopping during meal preparation;
·neck rotation is limited/stiff; and
·neck pain radiates into the shoulder is lifting more than a couple of kilograms and she cannot pick up children or anything heavy.
[84] Exhibit 1, T Documents, T26, page 130 white, Report of Dr Weate dated 11 August 2016.
In February 2017 Dr Weate reported that Mrs Richwood’s:[85]
·neck flexion is limited by pain and stiffness to half the range of movement;
·neck extension is grossly limited such that she can extend only 10 – 20 degrees beyond neutral and cannot look at the ceiling - this lack of neck extension would prevent her from doing overhead activities; and
·to look behind her to the left and right, Mrs Richwood has to rotate her lumbar and thoracic spine and lift her buttock.
[85] Exhibit 1, T Documents, T37, page 160, Report of Dr Weate dated 11 August 2016.
Dr Tuitoga reported in February 2017 that:[86]
·Mrs Richwood had lost more than half the normal movement of the lumbar spine;
·according to Table 4 of the determination the condition was having a severe functional impact on activities involving spinal function warranting a 20 point rating;
·Mrs Richwood unable to perform any overhead activities;
·Mrs Richwood cannot turn her head or bend her neck without moving her trunk;
·Mrs Richwood cannot bend forward to pick up a light object from a desk or table; and
·Mrs Richwood cannot remain seated for more than 10 minutes.
[86] Exhibit 1, T Documents, T38, page 161, Report of Dr Tuitoga dated 22 February 2017.
The JCA concluded that Mrs Richwood’s Spinal Impairment attracted a 10-point rating.[87]
[87] Exhibit 1, T Documents, T23, page 123, JCA report dated 26 July 2016.
The Secretary submitted that the evidence indicates that Mrs Richwood’s Spinal Impairment is having a moderate impact on her ability to function and that therefore a 10-point Impairment Rating is appropriate.[88]
[88] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 September 2017, para 66.
At the hearing Mrs Richwood disputed that she could drive for 20 to 30 minutes and submitted that her Spinal Impairment should be awarded a 20-point rating.[89] Mrs Richwood also told the Tribunal that her Spinal Impairment has deteriorated.
[89] Exhibit 3, Statement of Mrs Richwood dated 15 October 2017.
Mrs Richwood sought to rely on a medical assessment undertaken by Dr Gerald Walpole, General Practitioner and Government Contracted Doctor, in July 2017.[90] Dr Walpole assessed Mrs Richwood’s Spinal Impairment as having a severe impact on her ability to function, warranting an Impairment Rating of 20 points. However, the Tribunal does not give this report any weight because:
(a)It is an assessment of Mrs Richwood’s Impairment 11 months after the expiry of the Qualification Period; and
(b)There is no reasoning provided by Dr Walpole regarding how he arrived at a 20-point rating.
[90] Exhibit 6, Disability Medical Assessment by Dr Walpole dated 8 August 2017.

The assessment of Mrs Richwood’s Impairment for the purpose of this application has to be an assessment of the conditions as at the Qualification Period.
Considering the evidence that is relevant to the Qualification Period, the Tribunal finds that an appropriate impairment rating for Mrs Richwood’s Spinal Impairment is 10 points under Table 4.

IS MRS RICHWOOD’S HIP IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

The medical evidence supports a finding that Mrs Richwood’s Hip Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period. This is not disputed by the Secretary.[91]
[91] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 September 2017, para 72.
However, it is unclear from the evidence how this condition is impacting on Mrs Richwood’s ability to function independently from her Spinal Impairments. As a result it is therefore impossible for the tribunal to assign an impairment rating to Mrs Richwood’s hip impairment.

IS MRS RICHWOOD’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

Mrs Richwood was diagnosed by Dr Hamilton, Psychiatrist, (as required by Table 5 of the Determination) with “severe chronic depression” in August 2016 which is during the Qualification Period.[92]
[92] Exhibit 1, T Documents, T28, page 133, Report of Dr Hamilton dated 23 August 2016.
The Secretary accepts that Mrs Richwood’s Mental Health Impairment was fully diagnosed but contends that it was not fully treated and fully stabilised during the Qualification Period.[93]
[93] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 September 2017, paras 43-44.
Dr Hamilton reported that Mrs Richwood’s Mental Health Impairment had become stable, needed long-term medication and had become resistant to treatment.[94] In May 2016 Dr Weate reported that Mrs Richwood declined psychological input but she also reported that Mrs Richwood’s depression was “stabilised”.[95] There is no evidence to suggest that psychological treatment would result in any significant improvement in Mrs Richwood’s ability to function, given the extent and the duration of Mrs Richwood’s mental health condition[96] combined with Dr Hamilton’s reporting that the condition is now resistant to treatment.
[94]         Exhibit 1, T Documents, T28, page 133, Report of Dr Hamilton dated 23 August 2016.
[95]         Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
[96]         Dr Weate reports “lifelong symptoms described”: Exhibit 1, T Documents, T18, page 82, Report of Dr Weate
dated 19 May 2016
However, the Tribunal notes that in February 2017 Mrs Richwood did except a referral from Dr Weate for psychology input.[97]
[97] Exhibit 1, T Documents, T37, 158, Report of Dr Weate dated 18 February 2017.
The fact that Mrs Richwood was/is continuing to trial and adjust her antidepressant medication also does not mean that she was not fully treated. It is not uncommon for patients to use different antidepressants which may or may not assist at times.

Mrs Richwood has been on medication for a long time and given that the impairment is resistant to treatment the Tribunal finds that Mrs Richwood’s Mental Health Impairment is permanent for the purposes of the Act and an Impairment Rating can be assigned.

Relevant Impairment Table and Impairment Rating

Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The Introduction to Table 5 provides that:
·Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews with the person and those providing care or support to the person.
·In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.
·The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.
·The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
The Secretary made no submission regarding an Impairment Rating for this Impairment.
To assign an Impairment Rating of 20 points the evidence would need to show that
Mrs Richwood’s Mental Health Impairment is having a severe functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities involving mental health function.
(1) The person has severe difficulties with most of the following:
(a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
(b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
(c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
(d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
(e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
(f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
To assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities involving mental health function.
(1) The person has moderate difficulties with most of the following:
(a)self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.

Evidence Identifying the Loss of Function

Mrs Richwood gave the following evidence at the hearing regarding how her depression impacts on her ability to function:
·sometimes she cannot get out of bed in the morning;
·sometimes she forgets where she has put things;
·she is always worrying about what people are going to think regarding her chronic constipation and bowel condition which she says at times makes her smell;
·she has withdrawn from everybody and has no friends although she talks to her sister and her daughter on the telephone;
·she can use Facebook;
·when things go wrong she feels very anxious and panics;
·she has a fear of going to places she doesn’t know and she worries that she could get lost; and
·she sometimes gets angry at herself.
Dr Weate, reported in May 2016 that Mrs Richwood’s depression affects Mrs Richwood’s function and quality of life, her memory, her ability to self-care, her motivation and her interactions with people.[98]
[98] Exhibit 1, T Documents, T18, page 82, Report of Dr Weate dated 19 May 2016.
In July 2016 Dr Tuitoga reported that Mrs Richwood had a depressed mood, was anxious and feels like lashing out others, and was not coping well.[99]
[99] Exhibit 1, T Documents, T21, page 115, Medical Certificate dated 5 July 2016.
In July 2016 Dr Weate reported that Mrs Richwood had poor motivation, poor concentration, decreased problem-solving, emotional lability and poor coping skills and was taking antidepressant medication.[100]
[100] Exhibit 1, T Documents, T22, page 116, Medical Certificate dated 19 July 2016.
Based on the evidence available the Tribunal finds that Mrs Richwood’s Mental Health Impairment could be considered as falling between a 10 and 20 point Impairment Rating. In that circumstance, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[101]
[101] Determination, see s 11(1).
In the circumstances the Tribunal finds that an Impairment Rating of 10 points is appropriate for Mrs Richwood’s Mental Health Impairment.

IS MRS RICHWOOD’S CHRONIC CONSTIPATION IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

The medical evidence supports a finding that Mrs Richwood’s Chronic Constipation Impairment is permanent and an Impairment Rating can be assigned. This is accepted by the Secretary.[102]
[102] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 September 2017, para 84.

Relevant Impairment Table and Impairment Rating

The relevant tables are Table 10 of the Determination, which deals with digestive and reproductive function, and Table 13 which deals with continence function.

Rating under Table 10

The Introduction to Table 10 provides that:
·Table 10 is to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.
·Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.
·Reproductive system conditions may include gynaecological diseases (e.g. severe and intractable endometriosis, ovarian cancer) and conditions of the male reproductive system (e.g. testicular cancer).
·Table 13 (Continence Function) is to be used for a person who requires continence and ostomy care (that is, a person with an ileostomy or colostomy).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist (such as a gastroenterologist, a gynaecologist, an urologist or an oncologist) confirming diagnosis of a digestive or reproductive system condition;
oresults of investigations (such as X-Rays or other imagery, endoscopy or colonoscopy).
·Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.
·Personal care needs associated with digestive conditions include, but are not limited to, the need to take medications when symptoms occur, care of special feeding equipment (e.g. Percutaneous Endoscopic Gastrostomy (PEG) button or special feeding tube), special diets or feeding solutions, strategies to relieve pain, additional toileting and personal hygiene needs.
·Symptoms associated with reproductive system conditions include, but are not limited to, pain, fatigue, menorrhagia or dysmenorrhea.
·Personal care needs associated with reproductive system conditions include, but are not limited to, strategies to relieve pain or more frequent menstrual care.
To assign an impairment rating of 5 points the corroborative evidence would need to show that at least one of the following applies:
(a)[Mrs Richwood’s] attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b)[Mrs Richwood] is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
To assign an impairment rating of 10 points the corroborative evidence would need to show that at least two of the following applies:
(a)[Mrs Richwood’s] attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;
(b)[Mrs Richwood] is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;
(c)[Mrs Richwood] is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
The Secretary submits that an appropriate Impairment Rating under Table 10 is 5-points.[103]
[103] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 14 September 2017, para 91.
The JCA reported that:[104]
[104] Exhibit 1, T Documents, T23, page 123, JCA Report dated 26 July 2017.
(a)Mrs Richwood’s symptoms include “constipation and diarrhoea due to medication”;
(b)Dr Weate reported that:
(i)Mrs Richwood has had one episode of major bowel incontinence, however, she is not wearing incontinence pads and had not reported ongoing minor symptoms;
(ii)emptying her bowels is likely to be time-consuming and laborious and require the assistance of her daughter;
(c)Mrs Richwood said:
(i)her daughter is needed to assist with enemas every 1 to 2 days;
(ii)she can experience minor leakage from the bowel due to medications causing diarrhoea and that during this time she has to be close to a toilet, and soils her underwear.
The corroborating evidence supports an Impairment Rating of 5 points under Table 10.

Rating under Table 13

The Introduction to Table 13 provides that:
·Table 13 is to be used where the person has a permanent condition resulting in functional impairment related to incontinence of the bladder or bowel.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist, particularly in cases of moderate or severe incontinence, (e.g. urogynaecologist, gynaecologist, urologist, gastroenterologist) confirming diagnosis of conditions associated with incontinence (e.g. some gynaecological conditions, prostate enlargement or malignancy, gastrointestinal conditions, incontinence resulting from paraplegia, spina bifida, neurodegenerative conditions or severe intellectual disability);
oassessments and reports from practitioners specialising in the treatment and management of incontinence (e.g. urologists, urogynaecologists, continence nurse advisors, continence physiotherapists).
·To avoid doubt, for descriptors in this Table relating to a person’s symptoms affecting co-workers, a descriptor can apply even if the person does not work (that is, where the descriptor is likely to apply if the person did work).
Mrs Richwood submits that an appropriate Impairment Rating under Table 13 is 20 points.[105] The Secretary submits that an appropriate Impairment Rating under Table 13 is 5-points.[106]
[105] Exhibit 3, Statement of Mrs Richwood dated 15 October 2017.
[106] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 14 September 2017, para 92.
To assign an impairment rating of 5 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:
(a)[Mrs Richwood] has minor leakage from the bowel (e.g. enough faecal matter to soil underwear but not outer clothes) more than once a week but not every day;
(b)[Mrs Richwood] has urgency or occasional (at least monthly) loss of control of bowel.
To assign an impairment rating of 10 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:
(a)[Mrs Richwood] has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear and stain outer clothes if a continence pad is not worn) in most weeks; and
(b)in respect of continence of the bowel has difficulties that result in interruption to tasks, work or training on most days.
To assign an impairment rating of 20 points the corroborative evidence would need to show that at least one of the following, relevantly, applies:
(a)[Mrs Richwood’s] condition may affect the comfort or attention of co-workers; or
(b)[Mrs Richwood] has minor leakage from the bowel (e.g. enough faecal matter to soil underwear or continence pad but not outer clothes) every day; or
(c)[Mrs Richwood] has major leakage from the bowel (e.g. enough faecal matter to fully soil underwear or a continence pad) at least weekly.

Dr Vigh reported in February 2016 that Mrs Richwood described “a decreased anal sensation [and that] her bowels open possibly once a week”.[107]
[107] Exhibit 1, T Documents, T13, page 76, Report of Dr Vigh dated 29 February 2016.
The defaecogram in March 2016 found that Mrs Richwood had some incontinence during pelvic floor exercises and straining.[108]
[108] Exhibit 1, T Documents, T15, page 79, Defaecogram dated 18 March 2016
In July 2016 Dr Weate reported that Mrs Richwood’s chronic constipation was causing bloating, flatulence, abdominal pain and that she has to have an enema every 2 days.[109]
[109] Exhibit 1, T Documents, T22, page 116, Medical Certificate dated 19 July 2016.
Dr Tuitoga reported in February 2017 that Mrs Richwood was now having faecal incontinence and was trying to avoid social contact because of the embarrassment it is now causing her,[110] however there is no evidence that Mrs Richwood was having faecal incontinence everyday during the Qualification Period or otherwise met the descriptors for 20 points.
[110] Exhibit 1, T Documents, T36, page 157, Report of Dr Tuitoga dated 1 February 2017.
The evidence concerning the impact of this condition at the Qualification Period supports an Impairment Rating of 5 points. Dr Tuitoga’s report demonstrates that this condition has worsened. As noted earlier, Mrs Richwood is now in receipt of DSP.

ARE MRS RICHWOOD’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?

To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).
The Tribunal has found that the total Impairment Rating for Mrs Richwood’s permanent impairments was 30 points, therefore Mrs Richwood satisfies section 94(1)(b) of the Act.

DID MRS RICHWOOD HAVE A CONTINUING INABILITY TO WORK? (SECTION 94(1)(C))

Mrs Richwood’s permanent impairments attract an impairment rating of more than 20 points under the Impairment Tables in the Qualification Period and therefore, it is necessary to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
Section 94(2)(aa) sets out when a person has a continuing inability to work because of an impairment. It provides:
(1)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) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; 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).
(2)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.
(3C) 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.
However, because the Tribunal did not find that Mrs Richwood’s Impairments have attracted 20 points under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)), she is under an obligation to have completed a POS.

The requirements for a program of support, as referred to in s 94(3C) are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in s 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (s 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mrs Richwood must have actively participated in a POS for at least 18 months between 20 May 2013 and 20 May 2016. A POS is an obligatory legislative requirement.
Centrelink records confirm that Mrs Richwood has not participated in a POS.[111]
[111] Exhibit 1, T Documents, T43, page 185, Program of Support Summary; T29, page 141, JCA Report dated 20
September 2016.
As a result, the Tribunal finds that during the Qualification Period Mrs Richwood did not satisfy the requirements in section 94(2) of the Act and therefore, did not fulfil the requirement in section 94(1)(c) of the Act.

DECISION

The Tribunal affirms the decision under review.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..............................[Sgd]....................................
Associate
Dated: 30 November 2017

Date of hearing: 30 October 2017

Applicant: By Phone

Solicitors for the Respondent:
Ms Maleah Underhill
Government Lawyer
Department of Human Services

[2017] AATA 2409

30 November 2017

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Appeal

Date of hearing:	30 October 2017
Applicant:	By Phone
Solicitors for the Respondent:	Ms Maleah Underhill Government Lawyer Department of Human Services