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

Robinson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1323 (21 August 2017)
Division:GENERAL DIVISION
File Number: 2017/0720
Re:Marlyn Robinson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:21 August 2017
Place:Brisbane

The decision under review is affirmed.
............................[Sgd]..................................
Senior Member P E Nolan
Catchwords
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points - Fibromyalgia - Spondylosis - Cerebrovascular disease - decision under review is 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
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
The Guide to Social Security Law
REASONS FOR DECISION
Senior Member P E Nolan
21 August 2017
INTRODUCTION

On 6 October 2015, Ms Marlyn Robinson (“the Applicant”) applied for Disability Support Pension (“DSP”). On her claim form, she listed her ‘disabilities, illnesses or injuries’ as being a neck strain, strains in both her shoulders and a lower back strain.[1]
[1] Exhibit 1, T Documents, T 15, p.140.
The Applicant’s general practitioner Dr David Tedman, in a report dated
18 September 2015, listed her conditions as “fibromyalgia [and] cervical/lumbar spondylosis”.[2] He noted that the conditions caused the Applicant “widespread musculoskeletal pain – neck, shoulders [and] lower back pain”.[3]
[2] Exhibit 1, T Documents, T 13, p.118.
[3] Exhibit 1, T Documents, T 13, p.118.
HISTORY OF THE MATTER
After lodging her claim, the Applicant was assessed by a Job Capacity Assessor (“JCA”) who was an accredited exercise physiologist. In a report dated 26 November 2015, the JCA found the Applicant suffered from the following conditions:
(a)Fibromyalgia – assessed under Table 1 – Functions requiring Physical Exertion and Stamina;
(b)Spondylosis (cervical and lumbar) – assessed under Table 4 – Spinal Function; and
(c)Cerebrovascular disease – assessed under Table 1 – Functions requiring Physical Exertion and Stamina.[4]
[4] Exhibit 1, T Documents, T 16, pp.159-160.
The JCA found each condition was fully diagnosed, treated and stabilised. The JCA assigned 0 impairment points to the fibromyalgia and the cerebrovascular disease conditions, but assigned the spondylosis a rating of 20 impairment points.[5] It was determined the Applicant had a baseline work capacity of 8-14 hours per week, and this would not change within two years with intervention.[6]
[5] Exhibit 1, T Documents. T 16, p.157.
[6] Exhibit 1, T Documents, T 16, pp.160-161.
The result of an “impairment override” was that the Applicant’s impairments now only attracted 15 impairment points, under two separate Impairment Tables.
On 28 April 2016, the Applicant was assessed by Dr David Imlah, a government-contracted GP, who produced a report dated 23 May 2016.[7] Dr Imlah agreed with the “impairment override” outcome.
[7] Exhibit 1, T Documents, T 18, p.170.
On 16 June 2016, the Respondent rejected the Applicant’s claim for DSP on the grounds that her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables.[8] Dissatisfied with this result, the Applicant requested a review of this decision by an Authorised Review Officer (“ARO”). In the ARO’s report dated
[8] Exhibit 1, T Documents, T 20, p.175.

17 August 2016, the ARO found the Applicant’s conditions attracted a total impairment rating of 20 points, divided as follows:
(a)Fibromyalgia – 10 points under Table 1 – Functions requiring Physical Exertion and Stamina;
(b)Spondylosis – 10 points under Table 4 – Spinal Function;
(c)Cerebrovascular disease – 0 points under Table 1 – Functions requiring Physical Exertion and Stamina.[9]
I note that the ARO disagreed with Dr Imlah’s finding that the fibromyalgia and cerebrovascular disease should be rated under Table 2. This was because “[t]he medical evidence indicates that fibromyalgia primarily manifests as pain and fatigue”, so the impairment’s ultimate effect was considered by the ARO to be on the Applicant’s stamina, rather than her upper limbs.[10] Although the ARO found the Applicant’s impairments attracted 20 points under the Impairment Tables, the ARO found that the Applicant had not actively participated in a program of support, and so was ineligible for DSP.[11]
The Applicant appealed to the Social Security and Child Support Division of the Tribunal (“AAT1”). AAT1 favoured Dr Imlah’s assessment over that of the ARO, and only made one change to the conclusions he reached: AAT1 assessed the cerebrovascular disease under Table 1, but still found that it attracted 0 points under that Table.[12]
[9] Exhibit 1, T Documents, T 25, pp.188-189.
[10] Exhibit 1, T Documents, T 25, p 188.
[11] Exhibit 1, T Documents, T 25 p 190.
[12] Exhibit 1, T Documents, T 2, pp 5-10.
The Applicant now seeks review by this Tribunal of the decision not to grant her DSP. The issue before the Tribunal is whether the Applicant qualified for DSP within the “relevant period” – her conditions must be assessed as between 6 October 2015 (the date of her claim), and 5 January 2016 (13 weeks after the date of the Applicant’s claim).
ISSUES FOR THE TRIBUNAL
11.The issues for me to consider are:
(d)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric conditions which was fully diagnosed, treated and stabilised;
(e)whether, at the relevant time, the Applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;
(f)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(g)whether the Applicant has a continuing inability to work.
12.     Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
13. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
14.     The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 6 October 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[13] Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 6 October 2015 and 5 January 2016 (“the Relevant Period”). The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[14]
[13] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
[14] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
15.     The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[15] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[16] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[17]
[15] See s 26(1) of the Act.
[16] See s 5(2) of the Determination.
[17] See s 6(1) of the Determination.
16.     Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[18] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[19]
[18] See s 6(3) of the Determination.
[19] See s 6(4) of the Determination.
17.     In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[20]
[20] See s 6(5) of the Determination.
18.     A condition is “fully stabilised” if:
(d)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
(e)the person has not undertaken reasonable treatment for the condition and:
(f)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
(g)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[21]
[21] See s 6(6) of the Determination.
19.     “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[22] An impairment rating can only be assigned in accordance with the rating points in each Table.
[22] See s 6(7) of the Determination.
20. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have a physical, intellectual, or psychiatric condition which was fully diagnosed, treated and stabilised during the relevant period?
It is common ground between the parties, and a concession made by the Respondent, that the Applicant suffered from three conditions, all fully diagnosed, treated and stabilised during the relevant period.[23] The conditions are:
[23] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [36], [42] and [51].
(a)Fibromyalgia;
(b)Spondylosis; and
(c)Cerebrovascular disease.
I am satisfied with the concessions the Respondent has made in regards to these conditions, and find that all three are permanent for the purposes of the Act.
As the conditions are permanent a rating for each can be considered under a relevant Impairment Table.
Impairment Ratings
The question for the Tribunal, then, is what ratings the impairments attract under the relevant Impairment Tables. I address each condition individually.
Fibromyalgia
In determining which impairment rating to assign fibromyalgia, I must first ascertain which Impairment Tables it should be rated under.
In the process leading up to this decision, there have been two competing views as to which Impairment Table fibromyalgia should be rated under. The view adopted by the initial JCA and ARO was that it should be rated under Table 1 – Functions requiring Physical Exertion and Stamina. The justification for this was essentially that this condition impairs the Applicant’s ability to move around due to the pain and fatigue this condition causes.
Dr Imlah adopted a different view, one that was echoed by AAT1, it was that the condition is most appropriately rated under Table 2 – Upper Limb Function. The fundamental justification for this is fibromyalgia predominantly affects the Applicant’s upper limbs.[24] The Responded contended Table 2 was preferred. I am minded to agree.
[24] Exhibit 1, T Documents, T 18, p 170.
The Tables are meant to describe functional ability and impairment. Therefore, I am to look to which function or functions the condition impairs or causes loss from.[25] It is the case when the pain is, as in this case, in the upper limbs it is the upper limbs’ function that is impacted on, not the function of the person’s stamina as a whole.
[25] The Determination, s 10(1).
I consider Dr Imlah and AAT1 better-placed, than the JCA and ARO, to determine the appropriate Table. Consequently, I accept their opinions as evidence that the fibromyalgia should be assessed under Table 2, not Table 1.
I will now consider the appropriate rating for the Applicant’s fibromyalgia under Table 2.
The Respondent contends 5 points under Table 2 is the appropriate rating, based on the Applicant having experienced some difficulty picking up heavier objects.[26]
[26] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [44]
For this impairment to be rated 10 points, or to be classified as having a moderate functional impact, it would need to meet most (that must be at least four out of the six) of the descriptors in the 10 point rating.
A medical report of Dr Louisa Voight, rheumatologist, dated 22 September 2014, provided that the Applicant:
describes widespread pain, tenderness in the muscles and joints, fatigue … [s]he is unable to do basic chores such as cooking or any of her outdoor pursuits that she previously enjoyed. She even has difficulties with dressing some days.[27]
[27] Exhibit 1, T Documents, T 8, p.106.
At the hearing the Applicant said that she was not able to garden as she once did. She did say, however, that she manages to water her plants with a watering can no more than

500 millilitres and is able to put plants in pots. This is consistent with Dr Imlah’s assessment.[28]
[28] Exhibit 1, T Documents, T 18, p.170.
The Applicant is able to use a pen and pencil, and can dress herself (including doing up buttons) albeit having to take a break when she does.
It is clear, to me, the Applicant’s impairment meets some of the descriptors required by a 10 point rating. However, I am not persuaded it can, on the evidence before me, meet ‘most’ of the descriptors in a 10 Point rating under Table 2, an extract below:

Points

Descriptors

10

There is a moderate functional impact on activities using hands or arms.

(1)        The person has difficulty with most of the following:

(a)        picking up a 1 litre carton full of liquid;

(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)        holding and using a pen or pencil;

(d)        doing up buttons or tying shoelaces;

(e)        using a standard computer keyboard;

(f)         unscrewing a lid on a soft-drink bottle.

37.The Respondent’s submission that the Applicant could be assigned 5 points for this impairment is supported by the evidence before me. An extract below:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1)        The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)        picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)        handling very small objects (e.g. coins);

(c)        doing up buttons;

(d)        reaching up or out to pick up objects.

The fact the Applicant struggles with this condition is not in dispute, she said her standard day is frustrating and I believe her. The Tribunal, however, is restricted in the discretions it has in applying the tables. Despite the obvious challenges the Applicant is faced with, I agree with the Respondent in that 5 points is the appropriate rating under Table 2 for this condition.
Spondylosis
The relevant table for rating this condition is less contentious than the last. The condition is rated under Table 4 as it is best assessed as an impairment of Spinal Function.
The Respondent contends that this condition meets the descriptors of a 10 point rating under Table 4. The basis of their position is on the government-contracted medical assessment, which stated:[29]
[29] Exhibit 1, T Documents, T 18, p. 170.
Sat for more than 10 minutes during the interview, was able to bend to reach knee level, was able to turn neck without trunk movement. The candidate reported being able to use her left arm overhead but not on a sustained basis. Accordingly it was felt that the descriptors for moderate impairment were met but not those for severe impairment.
The descriptors for a moderate functional impairment under Table 4 are in the extract below:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)        the person is unable to bend forward to pick up a light object placed at knee height; or

(d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

Dr Imlah’s account is consistent with the Applicant’s Employment Services Assessment Report, dated 21 June 2016, that stated the Applicant:[30]
[30] Exhibit 1, T Documents, T 21, p. 179.
Does gardening and can go to shopping centre but not often. Can walk for 20 minutes but then has to rest. Able to drive on good days. Difficulty elevating right arm.
The report also raised the challenge the Applicant has had with degenerative changes, and notes that the Applicant suffered side affects from treatment which included Lyrica.
I am persuaded that the condition can meet most of the descriptors of a 10 point Impairment Rating.
To attract an Impairment Rating of 20 points (which would make it a severe impairment) the descriptors in the extract below must be met:

Points

Descriptors

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)        perform any overhead activities; or

(b)     turn their head, or bend their neck, without moving their trunk; or

(c)     bend forward to pick up a light object from a desk or table; or

(d)    remain seated for at least 10 minutes.

46.The Applicant contends that the condition should attract a 20 point rating. In support of the claim the Applicant sought the evidence of Dr Krishanthini Kanagasabai. Dr Kanagasabai was able to confirm the Applicant’s conditions as at 25 October 2016,[31] Dr Kanagasabai is part of the same medical centre that Dr Tedman was, prior to his retirement, and did have the Applicant’s former treating doctors notes with her for the hearing, nonetheless the witness conceded that she was unable to speak to the Relevant Period as she had not seen the Applicant until 25 January 2016 (outside the Relevant Period).
[31] Exhibit 1, T Documents, T 1, p.4

Dr Kanagasabai was able to speak to Dr Tedman’s notes by way of summary, and was an impressive witness. This does not, however, circumvent the fact that Dr Kanagasabai’s reporting and experience of the Applicant falls outside the Relevant Period and would better assist a claim of a different period.
I am left to contrast the above with the contemporaneous observations made by Dr Imlah and the self-reports in the Employment Services Assessment Report that guide me along a well lit path to a rating of 10 Impairment Points for this condition.
Cerebrovascular disease
49.The Applicant told the Tribunal that she was in hospital for one day in 2007 with arm weakness due to this condition, and that she in effect had a mini-stroke. I do not doubt the Applicant’s account, she presented as a sincere witness and her cooperation assisted the hearing, and I note the Respondent’s concession that the condition is permanent for the purposes of the Act.[32] However, I have not been presented with the adequate and relevant evidence that would be required to conclude that the impairment, caused by this condition, was more frequently exacerbated than that isolated event (of which I do not have a great deal of information). Nor can I conclude that the condition manifested itself, in the Relevant Period, in a manner other than what can be described as well managed and causing no functional impact.
[32] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, [51]
This position is supported by the medical report of Dr Tedman, having categorised this condition as one that was generally well managed and that caused minimal impact or limited impact on (the Applicant’s) ability to function[33] The JCA drew a similar conclusion and allocated 0 impairment points to the condition under Table 1.[34]
[33] Exhibit 1, T Documents, T 13, p. 114-124 Medical report of Dr Tedman (T13)
[34] Exhibit 1, T Documents, T 16, p. 160
The Applicant, during the hearing, made helpful concessions with regards to this condition and although she upheld her pursuit of a higher rating than 0 she acknowledge that the focus on her claim was the other two conditions considered in this application.
This condition is rated under Table 1 as it is best assessed under Functions requiring Physical Exertion and Stamina.
During the government-contracted medical assessment conducted on 9 February 2016, Dr Imlah made observations about the Applicant’s abilities, and found a 0 point rating.[35]
[35] Exhibit 1, T Documents, T 18, p.171
The Applicant’s impairment, caused by this condition is consistent with 0 points under the Table 1 in that there is no functional impact on activities requiring physical exertion or stamina.
I find that the Applicant’s self-reporting and the available medical evidence lead me to the conclusion that 0 is the appropriate rating.
Summary of points
(a)Fibromyalgia – 5 points under Table 2.
(b)Spondylosis – 10 points under Table 4.
(c)Cerebrovascular disease – 0 points under Table 1.
As the Respondent contends, there is not sufficient medical evidence that could support a finding that 20 points ought to be allocated under a single Impairment Table for any of the above conditions. This means that for the purposes of the Act no one condition in isolation can be considered a ‘severe impairment’. Therefore, the only way the required 20 points can be assigned is by an accumulation of points across multiple tables.
The accumulation of the points of all permanent impairments reaches a total of 15 points. As the Applicant’s conditions do not attract 20 points or more either under one table, or by way of an accumulation of points in multiple impairment tables, the Applicant’s claim must fail.
Continuing inability to work
As I have found that the Applicant’s impairments are unable to be rated, accumulatively, more than 15 points the application must fail. It is not necessary then to consider the Applicant’s continuing inability to work.
If I were able to find that the Applicant’s impairments ought to be assigned a total of 20 points across the three relevant tables, I would be required to consider the Applicant’s participation in a (recognised) program of support. I note that the Applicant had not, at the Relevant Period, participated in a program of support and therefore the application is likely to have failed regardless of whether 20 points, accumulatively, were assigned.
An additional observation
The Applicant has failed to reach 20 points or more via this application. I note her conditions may have worsened since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence.
CONCLUSION
The Applicant does not qualify for DSP because his conditions can only be assigned 15 impairment points during the Relevant Period.
The decision under review is affirmed.

I certify that the preceding 62 (sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

...............................[Sgd]...............................
Associate
Dated: 21 August 2017

Date of hearing: 29 May 2017

Applicant:

Solicitors for the Respondent:

By phone

Claire Campbell
Department of Human Services

(Cth).

[2012] AATA 922 at [34]

[2017] AATA 1323

21 August 2017

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