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

Samson and Secretary, Department of Social Services (Social services second review) [2017] AATA 1229 (9 August 2017)
Division:GENERAL DIVISION
File Number: 2016/6667
Re:Karen Samson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:9 August 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – 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)
REASONS FOR DECISION
Member D K Grigg
9 August 2017
INTRODUCTION AND CLAIMS HISTORY

Ms Samson was a recipient of the Disability Support Pension (“DSP”) between 10 December 2003[1] and 28 June 2016 for a mental health condition. However, on 28 June 2016, after a medical review, Ms Samson’s DSP was cancelled by the Department of Human Services (Centrelink).[2]
[1] Exhibit 1, T Documents, T5, pages91 - 93, Advice Letter – granted DSP dated 4 February 2004.
[2] Exhibit 1, T Documents, T 25, pages 292 – 293, Letter from Centrelink to Ms Samson dated 28 June 2016.
Ms Samson sought a review of Centrelink’s decision to cancel her DSP by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Ms Samson’s medical conditions were not fully diagnosed, treated and stabilised and did not attract 20 points or more under the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T 18, pages 155 – 235, Application for Review of Decision and Medical Reports dated 7
August 2016.
[4] Exhibit 1, T Documents, T 21, pages 262 – 271, Decision of ARO dated 2 September 2016.
On 5 September 2016, Ms Samson lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[5] The SSCSD rejected Ms Samson’s claim and affirmed the ARO’s decision on 18 November 2016.[6]
[5] Exhibit 1, T Documents, T 23, page 287, Letter advising of appeal to AAT1 dated 2 September 2016.
[6] Exhibit 1, T Documents, T2, pages 6 – 16, SSCSD’s Decision and Reasons for Decision dated 18 November
2016.
Ms Samson has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1- 5, Ms Samson’s Application for Review dated 9 December 2016.
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)Ms Samson must have a physical, intellectual or psychiatric impairment;
(b)Ms Samson’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Ms Samson must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[9]
[9] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Ms Samson must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 28 June 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Samson’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[10]
DID MS SAMSON HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Ms Samson’s Medical Conditions
[11] Determination, s 3.
Mental Health
In 2012 Dr Petros Markou, Psychiatrist, reviewed Ms Samson and reported that Ms Samson had high levels of anxiety and depression but that in his opinion it was unlikely that she had bipolar disorder.[12]
[12] Exhibit 1, T Documents, T6, pages 94 – 95, Report of Dr Markou dated 5 June 2012.
In April 2016 Dr Tim Bradshaw, General Practitioner, reported that Ms Samson has anxiety and depression with marked somatisation in the face of chronic psychogenic multiple cited pain. However, Dr Bradshaw said that this condition was generally well managed and caused minimal or limited impact on Ms Samson’s ability to function.[13]
[13] Exhibit 1, T Documents, T14, pages 127 – 136, Report of Dr Tim Bradshaw, dated 22 April 2016.
In contrast to Dr Bradshaw, in or around April 2016 Dr Francis Sibraa, Psychologist, reported that:[14]
(a)he has seen Ms Samson on at least 23 occasions;
(b)Ms Samson continues to suffer from chronic depression and dysthymia with periods of major depression, chronic anxiety (consistently scoring on the DASS 42 diagnostic scale with high stress, anxiety and depression);
(c)Ms Samson had a major relapse earlier in 2016 (and suffered severe panic attacks) when police searched her home; and
(d)Ms Samson will probably need the correcting influence of counsellors for many years to come given the uncertainty and, at times, unpredictability of her condition.
[14] Exhibit 1, T Documents, T 18, pages 207 – 208, Report of Dr Sibraa.
Ms Samson was reviewed by Dr Markou again in October 2016 (4 months after the Qualification Period).[15] Dr Markou reports that in the four years since he had previously reviewed her Ms Samson’s “clinical state has markedly deteriorated and she is experiencing severe and significant periods of low mood and depression… Another prominent feature is that of significant anxiety”. Dr Markou diagnosed Ms Samson with complex post-traumatic stress disorder in addition to a major depressive disorder. In Dr Markou’s opinion Ms Samson is likely to remain impaired for many years to come and, in addition to ongoing medication, was likely to need the ongoing help of a psychologist, and possibly a psychiatrist. Dr Markou said he did not anticipate any diagnostic change over the next 12 months and that Ms Samson should remain on an appropriate antidepressant, maintain a positive therapeutic relationship with her psychologist, and not have additive stresses such as attempting to find work as this is likely to lead to increased stress and exacerbation of her condition.
[15] Exhibit 1, T Documents, T 27, pages 318 – 320, Report of Dr Markou dated 14 October 2016.
Shoulder Condition
In January 2013 Ms Samson hurt her back at work and was referred to the Sports and Spinal Physio Centre.[16]
[16] Exhibit 1, T Documents, T6, page 96 – 97, Referral to sports and spinal physio centre dated 22 February 2013.
Dr Dave Lutchman referred Ms Samson to the Sports and Spinal Physio Centre in October 2013 and explained that her bilateral shoulder pain was progressing and that she was currently treating the pain with non-steroidal anti-inflammatory drugs and is awaiting steroid injection.[17]
[17] Exhibit 1, T Documents, T 18, page 166, Letter from Dr Lutchman dated 1 October 2013.
In January 2014 Ms Samson had an arthrogram of her shoulders which showed:
·right shoulder - there was a focus of calcific tendinitis in the infraspinatus tendon, more towards bursal surface and back at the level of the myotendinous junction;[18] and
·left shoulder - calcific tendinitis of infraspinatus and moderate subacromial impingement morphology bursitis.[19]
[18] Exhibit 1, T Documents, T 18, page 175, MR Arthogram right shoulder report dated 6 January 2014.
[19] Exhibit 1, T Documents, T 18, page 176, MR Arthogram left shoulder report dated 6 January 2014.
Fibromyalgia/Chronic Pain
In 2014 Ms Samson was reviewed by Dr Peter Georgius, Pain and Rehabilitation Specialist, whose overall assessment was that Ms Samson:
(a)had multiple sites of musculoskeletal pain which are non-specific; and
(b)did not have any objective impingement or physical limitations associated with her joints, particularly her shoulders;
Dr Georgius reported that there was no objective lower motor neuron or upper motor neuron symptoms on examination and that Ms Samson had an excessive focus on her somatic symptoms. Dr Georgius offered to refer Ms Samson to a psychiatrist but she declined. Dr Georgius says that he made it clear to Ms Samson that she failed to meet the criteria for access to superannuation for ongoing therapies and that she failed to meet the criteria for total disability on physical grounds. It was Dr Georgius’ opinion that Ms Samson’s risk for normal activities of daily living was the same as that of the normal population but that her excessive focus on her somatic symptoms and on the use of passive therapies would only result in a reduction of function in the long-term. Dr Georgius did not feel there was any role for pain interventional procedures and that Ms Samson should be referred to the public pain management program.[20]
[20] Exhibit 1, T Documents, T 15, pages 143 – 144, Report of Dr Peter Georgius dated 30 September 2014.
In March 2015 Ms Samson was seen at the Sunshine Coast Hospital outpatient clinic for a trans-professional assessment of her chronic pain condition. Ms Samson reported that she had a long history of bilateral shoulder pain. Dr Kurtz recommended that Ms Samson continue with her community activity engagement with Pilates, yoga, massage therapy and walking and that she have psychology review and physiotherapy review.[21]
[21] Exhibit 1, T Documents, T 15, page 140-142, Report of Dr Kurtz dated 23 March 2015.
In May 2015 Ms Samson was reviewed by Dr Tanya Morris, Director of Sunshine Coast Persistent Pain Management Service, for pain management. Dr Morris reported that Ms Samson reported to her that:[22]
(a)her bilateral shoulder pain is more manageable and her shoulders have fully recovered;
(b)the tension headaches are more manageable;
(c)she is attending Yoga and Pilates regularly;
(d)she understands she can have flares and she understands that this is a result of the diagnosis of fibromyalgia;
(e)she is currently taking, among other things Valium and Panadeine, which she uses as a muscle relaxant.
[22] Exhibit 1, T Documents, T 15, pages 138 – 139, Report of Dr Morris dated 10 June 2015.
Dr Morris reported that she did not suggest any further routine review and did not have much further to add other than that she would encourage Ms Samson to limit her Valium and Panadeine usage.[23]
[23] Exhibit 1, T Documents, T 15, page 139, Report of Dr Morris dated 20 May 2015.
Just over 12 months later, on 29 July 2016, Ms Samson was reviewed by Dr Joseph W. O’Callaghan, Rheumatologist, for an opinion as to whether or not she had fibromyalgia. In Dr O’Callaghan’s opinion Ms Samson did have fibromyalgia syndrome and also rotator cuff dysfunction at the shoulders and a degree of mild osteoarthritis in some joints. Dr O’Callaghan says he regards fibromyalgia as a pain syndrome and although she has some issues with tendons and joints, there is no objective evidence to explain her significant disability.[24] In a Medical Treating Specialist Statement for a total and permanent disability claim Dr O’Callaghan said “[t]his lady’s disability is related to subjective symptoms of pain and fatigue and cognitive problems”.[25]
[24] Exhibit 1, two documents, T 27, page 302 – 303, Report of Dr O'Callaghan dated 14 August 2016.
[25] Exhibit 1, T Documents, T 27, pages 304 – 308, TPD claim treating specialist statement prepared by Dr
O'Callaghan dated 10 August 2016.
In August 2016 Dr Cade Sutherland, chiropractor, reported that Ms Samson had been attending the Wellsure Chiropractic Clinic on a regular basis since June 2014 for the treatment of chronic pain in the areas of the lumbar spine and cervicothoracic junction.[26] According to an invoice from the Wellsure Chiropractic Clinic Miss Samson was to receive chiropractic treatment every three weeks.[27]
[26] Exhibit 1, T Documents, T 20, page 260, Report of Dr Sutherland dated 11 August 2016.
[27] Exhibit 1, T Documents, T 27, page 329, Invoice of Wellsure Chiropractic Clinic.
In August 2016 Dr O’Callaghan provided Centrelink with a report applying on compassionate ground for psychotherapy and chiropractic therapy for Miss Samson due to fibromyalgia and chronic pain.[28]
[28] Exhibit 1, T Documents, T 27, pages 325 – 327, Report of Dr O'Callaghan dated 10 August 2016.
Ms Nicole Dillon, remedial massage therapist, confirmed in August 2016 that Ms Samson has been receiving treatment for chronic pain for approximately three years (between 2013 and 2016) and had presented with pain and inflammation to her cervical, shoulder, thoracic and lumbar spine and hips.[29] According to an invoice from Ms Dillon, between August 2015 and August 2016 Ms Samson was having a massage every two weeks.[30]
[29] Exhibit 1, T Documents, T 20, page 261, Letter from Ms Dillon dated 15 August 2016.
[30] Exhibit 1, T Documents, T 27, page 328, Invoice from Nicole Dillon dated 15 August 2016.
On 29 November 2016 Dr Tanya Obertik provided Centrelink with a report applying on compassionate ground for massage and chiropractic therapy for Miss Samson due to chronic pain.[31]
[31] Exhibit 1, T Documents, T 27, pages 321 – 324, Report of Dr Obertik dated 29 November 2016.
In December 2016 Ben Hones, physiotherapist, reported that Ms Samson complained of worsening of symptoms since July 2016 and reports neck and thoracic pain and stiffness throughout movement. Mr Hones says it is difficult to determine the prognosis of her condition as he has not seen her consistently (in fact this is only the second time that he had seen Ms Samson) and that he had recommended a program of shoulder rehabilitation.[32]
[32] Exhibit 1, T Documents, T 27, page 315, Report of Mr Holmes dated 1 December 2016.
Coeliac Disease
In July 2016 Dr Edward Osborne, General practitioner, confirmed that he had diagnosed Ms Samson with coeliac disease, and reported that she was vitamin B12, iron and vitamin D deficient, and, as a consequence, Ms Samson had confirmed copper overload and under methylation.[33]
[33] Exhibit 1, T Documents, T 18, page 179, Letter from Dr Osborne dated 6 July 2016.
Conclusion on Impairment
The Secretary accepts that Ms Samson suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[34]
[34] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 June 2017, para 50.
In light of the medical evidence I conclude that at the Qualification Date Ms Samson suffered from anxiety and depression, shoulder tendonitis and fibromyalgia – chronic pain Impairments for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
While I acknowledge that Dr Osborne says that Ms Samson also suffers from coeliac disease there is no indication that this condition has been fully diagnosed. While a blood test was performed on 9 June 2016, it indicated only a possibility that coeliac disease may develop.[35] This is not a definitive diagnosis. While Ms Samson says she now has a restricted diet, takes supplements and has regular blood tests, there is no corroborating evidence as to how this condition is impacting on Ms Samson’s ability to function. Ms Samson conceded at the hearing that the evidence concerning this condition is inadequate for the purposes of being considered in relation to this DSP claim.[36]
DOES MS SAMSON’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[35] Exhibit 3, Submissions of Ms Samson dated 14 July 2017, Annexed blood test results dated 9 June 2016.
[36] Exhibit 3, Submissions of Ms Samson dated 14 July 2017, introductory page.
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.[37] They are function based[38] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[39]
[37] Determination, s 4(2) and 5(2)(a).
[38] Determination, s 5(2)(b) and (c).
[39] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[40]
(a)Ms Samson’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.
[40] Determination, see s 6(3).
Ms Samson’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[41]
(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.
[41] 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[42] the following must be considered:[43]
(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.
[42] For the purposes of ss 6(4)(a) and (b) of the Determination.
[43] Determination, see s 6(5).
A condition is fully stabilised[44] if:[45]
(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[46]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[44] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[45] Determination, see s 6(6).
[46] For reasonable treatment see s 6(7) of the Determination.

Once it has been established that the applicant for DSP has a permanent impairment, it 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 I must first consider Ms Samson’s medical history, in relation to the condition causing the Impairments.[47]
[47] Determination, see s 6(2).
ANXIETY / DEPRESSION
In June 2016 Centrelink obtained a Health Professional Advisory Unit (“HPAU”) opinion. The HPAU concluded that Ms Samson’s anxiety and depression was fully diagnosed, fully treated and fully stabilised but that, based on Ms Samson’s reported capacity for independent living and study, there was no functional impairment under Table 5. In relation to the non-specific musculoskeletal pain the HPAU concluded that as there is a psychiatric component and the possibility of a somatisation disorder which had not been formally confirmed by psychiatrist, the condition could not be considered fully diagnosed treated or stabilised.[48]
[48] Exhibit 1, T Documents, T 16, pages 145 – 147, Health Professional Advisory Unit Report dated 29 June 2016.
However, a Job Capacity Assessment (“JCA”), conducted on 8 June 2016, concluded that Ms Samson’s anxiety and depression was fully diagnosed, treated and stabilised.[49] The JCA was conducted by way of a file assessment because Ms Samson failed to attend her scheduled face-to-face JCA and was unable to be contacted.[50] Ms Samson says she did not attend the JCA due to cognitive deficits and an inability to manage her affairs adequately.[51]
[49]         Exhibit 1, T Documents, T 17, page 149, JCA Report dated 28 June 2016.
[50]         Exhibit 1, T Documents, T 17, page 153, JCA Report dated 28 June 2016.
[51]         Exhibit 1, T Documents, T 18, page 158 Ms Samson's appeal of cancellation of DSP.
The medical evidence, in particular that of Dr Sibraa, supports a finding that Ms Samson’s mental health condition of anxiety and depression was fully diagnosed, fully treated and fully stabilised as required by the Act. I note that the Secretary accepts this condition is permanent.[52]
[52] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 23 June 2017, para 51.
Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
I have to assess the level of impact of Ms Samson’s mental health Impairment against the descriptors[53] (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).[54]
[53] Determination, see ss 3 and 5(3).
[54] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an 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.[55]
[55] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[56]
(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.
[56] Determination, see s 7.
I must not take into account the following information in applying the Tables:[57]
(a)symptoms reported by Ms Samson 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 Ms Samson’s local community.
[57] Determination, see s 8.
Which Tables are appropriate are determined by:[58]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[58] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[59]
[59] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[60]
[60] 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.[61]
[61] 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.[62]
[62] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
Dr Markou reported:
(a)in 2012 that Ms Samson was experiencing low mood, depression and fatigue and post-traumatic symptoms; and
(b)in October 2016 that Ms Samson was experiencing severe and significant periods of low mood and depression, had episodic sleep and appetite disturbance and significant anxiety.[63]
[63] Exhibit 1, T Documents, T 27, pages 318 – 320, Report of Dr Markou dated 14 October 2016.
Dr O’Callaghan reports that Ms Samson has poor concentration and poor memory.[64]
[64] Exhibit 1, T Documents, T 27, page 312, Report of Dr O'Callaghan dated August 2016.
In August 2016 Dr Sibraa considered the descriptors in Table 5 of the Determination and reported that Ms Samson’s:[65]
(a)mental health condition makes it difficult for her to initiate and maintain social interaction;
(b)anxiety contributes to her social isolation and overall lack of interpersonal relationships and friendships;
(c)low and depressed mood:
(i)reduces her capacity to focus attention on immediate tasks and makes task completion more difficult; and
(ii)causes her to suffer from poor retention of information and short-term memory;
(d)stress and anxiety makes it hard for her to manage her fears, moods and behaviour, and results in physical and social withdrawal.
[65] Exhibit 1, T Documents, T 18, pages 207 – 208, Report of Dr Sibraa dated August 2016
Ms Samson provided the following written submissions and evidence which she reiterated at the hearing before me:[66]
The majority of the evidence, very clearly indicates moderate impairment. The evidence that could possibly indicate a mild impairment some of the time, would be from Dr. O’Callaghan reporting, “being able to walk for 60 minutes”, “reach over shoulders 10 minutes in constant period” and “a lifting/carrying capacity of 15kg”. In explanation of this, I had one appointment with the doctor and at that time I was rather unwell, both physically and mentally (see summary of doctor’s notes). His statements were not based on specifically measured tests as such, but rather based on my responses to his questions (re: self–reported) at that time, in which, due to my cognitive issues, anxiety etc, I found it very difficult to answer on the spot. I therefore made rough guesses based on what I had been optimally capable of previously (in prior years), on a very good day, when I am at my very best; not based on something that I am comfortable to do on average most of the time, regularly or repetitively. Specific measurements of one’s general capacities for movement are not something that one tends to pay a lot of attention to on a daily basis (unless of course you jog or walk specific distances). Please take a moment to consider this. When it comes to chronic low grade pain and/or fatigue, what one is physically capable of, if sufficiently motivated in a one situation is a little different to one is able to do reasonably comfortably on a repetitive and/or daily basis. I have since paid more attention to measuring what I can and can’t do most of the time, and this information has also been used as a part of this determination and you will notice the difference as such in the JCA dated March 2017, “walking (10 minute tolerance)”and other self-reports in previous statements. I have also mentioned in a previous statement that my conditions were exacerbated in early 2016 due to trauma and other ongoing stressors, including an eventual diagnosis of Coeliac Disease. I also provided the logical, common sense explanation and conclusion that I am very unlikely to recover from this deterioration in any significant way due to the ongoing degradation of my health, due to my developing arthritis and its debilitating comorbidity with the Fibromyalgia combined with the increased fatigue related to depression. I acknowledge that prior to 2016 I may have qualified for mild impairment some of the time, but the evidence clearly dictates that my conditions have deteriorated and are unlikely to improve significantly in the future. It has been approximately 18 months…
(since early 2016) I am able to perform these activities occasionally, with difficulty and symptoms most times (not just occasionally), without stopping to rest. My comfortable limit without symptoms, without a rest, would be less than 500m. As I have stated previously, at community service 2 days per week (2 hours), I stay on my feet for a varied length of time, with a combination of walking and standing; but it is with some difficulty and discomfort every time, (not just occasionally), and I often take small breaks to rest, or find a job to do from a seated position when I can.
Just in case my Pilates class has been deemed a physically active task; as I have previously stated in a statement late 2016, that after 6 months (March – September 2016), of non-attendance due to illness and exacerbation of my conditions, I was struggling with a single class of Pilates per week. Since that time (Dec 2016) I have continued to struggle to even attend a single class each week, and still find that to be very challenging, due to fatigue and pain. The class I attend has no aerobic component to it and is a gentle beginner’s class. I have only managed to attend 2 single yoga classes in that time. I do not take regular walks at all. I find slopes and stairs challenging and cause fatigue most of the time not just occasionally. It all depends on the specific variables.
The majority of the evidence clearly and overwhelmingly, supports moderate impairment.
[66] Exhibit 3, Submissions of Ms Samson dated 14 July 2017.
Ms Samson says a typical day involves:[67]
[67]         Exhibit 3, Submissions of Ms Samson dated 14 July 2017.
6-8am             Wake up, toilet, feed pets, get supplement drink, return to bed.
8-10/11am Check facebook for news and current events etc, interact, share articles.
11am Shower, food, some light housework eg: dishwasher, food prep, feed chooks etc
Noon – 4pm    Rotating in and out of bed between light chores and facebook,
reading small articles, household admin tasks (banking) etc. Occasionally cleaning small sections of my bedroom (usually putting clean clothes away)
4pm head downstairs to assist daughter with cooking dinner and watch tv.
8-9.30             bed
Relevant Impairment Table and Impairment Rating
The relevant tables are Table 5 of the Determination, which deals with Mental Health Function, and Table 1 which deals with functions requiring physical exertion and stamina.
Impairment Rating under Table 5
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:
·a report from the person’s treating doctor;
·supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
·interviews 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 submits that an appropriate Impairment Rating for Ms Samson’s mental Health Impairment is 10 points.[68]
[68] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 23 June 2017, para 52.
Ms Samson also submitted that her Mental Health Impairment is having a moderate impact on activities involving mental health function and warrants an Impairment Rating of 10 points.
In order 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.
The evidence demonstrates that Ms Samson:
·lives independently and can perform the activities of daily living;
·was working as a cleaner until 2013;
·attends Yoga and Pilates albeit she says she is less and less able to attend because of her conditions;
·was able to attend a 10 day meditation course in 2015;[69]
·has previously enrolled in study of Child psychology;
·has difficulty making or keeping friends;
·finds it difficult to concentrate on longer tasks;
·has difficulty coping with situations involving stress, pressure or performance demands.
[69] Exhibit 1, T Documents, T 15, pages 138 – 139, Report of Dr Morris dated 10 June 2015
There is no evidence that Ms Samson has significantly and frequently disturbed behaviour and thoughts, difficulty concentrating for more than 10 minutes or that she needs support to live independently. Therefore a 20 point rating is inappropriate.
Based on the medical evidence available I find that an Impairment Rating of 10 points is appropriate for Ms Samson’s Mental Health Impairment under Table 5.
FIBROMYALGIA IMPAIRMENTS
Is Ms Samson’s Fibromyalgia Impairment permanent and likely to persist for at least 2 years?
In June 2016, the JCA concluded that Ms Samson’s pain condition, based on the medical evidence, could not be said to be fully diagnosed in light of the absence of appropriate psychiatric evidence.[70] However, subsequent to the JCA report, Ms Samson was diagnosed by Dr O’Callaghan with fibromyalgia. Although I note that whether or not there is some psychiatric component that may or may not be contributing to or causing additional exacerbated pain has not been determined, it does not take away from the fact that the diagnosis of chronic pain, and fibromyalgia, has been made.
[70] Exhibit 1, T Documents, T 17, page 150, JCA report dated 28 June 2016.
The medical evidence supports a finding that Ms Samson suffers fibromyalgia which was fully diagnosed, treated and stabilised as at the Qualification Date. This is not disputed by the Secretary.[71]
[71] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 June 2017, para 62.
Function Evidence and Impairment Rating
The table relevant to an assignment of an Impairment Rating in relation to Ms Samson’s Fibromyalgia Impairment is Table 1.
In December 2016 Dr Obertik reported that Ms Samson’s fibromyalgia has a moderate impairment on her physical exertion and stamina and that she experiences frequent symptoms of muscular and joint pain when performing day-to-day activities which affects her ability to walk any substantial distance from her home. Dr Obertik confirmed that

Ms Samson is still able to drive and able to walk short distances such as for a grocery shop although she does get fatigued.[72]
[72] Exhibit 4, Report of Dr Obertik dated 16 December 2016.
In July 2017 Dr Sibraa provided a subsequent report to confirm that Ms Samson also suffers from fatigue as a result of her mental health condition and that she has, and has had since January 2016, “persistent, severe and occasionally moderate levels of debilitating fatigue on a daily basis”.[73]
[73] Exhibit 3, Submissions of Ms Samson dated 14 July 2017, Annexure report of Dr Sibraa dated 13 July 2017.
I refer here also to the evidence of Ms Samson in paragraphs 58-59 above.
The Secretary submits that an appropriate Impairment Rating for Ms Samson’s Fibromyalgia Impairment is 5 points.[74] The Secretary referred to the following reports in support of its submission:
(a)the report of Dr Kurtz dated 23 March 2015 which reports that Ms Samson was able to stand for 15 – 20 minutes, can walk for up to one hour, undertakes Yoga two hours twice per week and Pilates 2 hours twice per week, and walks daily with the dogs for 30 minutes;[75]
(b)the report of Dr Tim Bradshaw dated 22 April 2016 where he reported that Ms Samson had anxiety/depression, with marked somatisation in the form of chronic psychogenic multiple cited pain, which was well managed and having a minimal impact on Ms Samson’s ability to function;[76]
(c)report of Dr O’Callaghan dated 1 November 2016 which reports that Ms Samson could walk for 60 minutes at a time and was able to stand for 20 minutes.[77]
[74]         See Exhibit 2, Secretary's Statement of Facts and Contentions dated 23 June 2017, para 63.
[75]         Exhibit 1, T Documents, T 15, page 140 – 142, Report of Dr Kurtz dated 23 March 2015.
[76]          Exhibit 1, T Documents, T14, pages 127 – 136, Report of Dt Tim Bradshaw dated 22 April 2016.
[77]Exhibit 1, T Documents, T27, pages 304 – 308, TPD claim treating specialist statement prepared by Dr Callaghan dated 10 August 2016.

Further, it is not disputed by Ms Samson, in or around the Qualification Date, that she was contributing as a committee member of a Medical Cannabis Users Association and was also performing approximately 4 hours per week of retail shop community service. I also note that in September 2015 Ms Samson spent approximately 2 weeks overseas in order to deal with an urgent family situation.
Ms Samson explained to the Tribunal that she had had a mental health breakdown in January 2016 and had deteriorated as a result. While she says that the degree of pain can fluctuate occasionally, for example depending upon the weather, sometimes the pain is severe and that some days it affects her mental state to such an extent that she does not get out of bed.
Ms Samson submitted that her fibromyalgia Impairment is having a moderate impact on activities requiring physical exertion and stamina and warrants an Impairment Rating of 10 points.
In relation to the report of Dr Kurtz I note that whilst this may be relevant to Ms Samson’s condition and status as at March 2015, the Tribunal must determine the appropriate rating for this impairment as at the Qualification Date, which is more than 12 months later. Therefore more weight is to be given to the reports that are closer in time to the Qualification Date, particular where the medical evidence indicates that due to an exacerbating situation in January 2016, Ms Samson had deteriorated. I give little weight to the report of Dr Bradshaw of April 2016 because Dr Bradshaw had only seen Ms Samson a couple of times prior to preparing his report and it is completely contrary to the April 2016 report of Ms Samson’s long-term treating Psychologist Dr Sibraa and the July 2016 report of the Rheumatologist, Dr O’Callaghan. In relation to the report of Dr Obertik, I note that the report was prepared approximately 6 months after the Qualification Date and that therefore may not be an accurate reflection of the impact of this impairment on Ms Samson’s ability to function at the Qualification Date. Further Ms Samson told the Tribunal that Dr Obertick prepared the report in part based on information provided by her (i.e. the self-report of Ms Samson), although Ms Samson says Dr Obertik would have also had access to her medical records.
Ms Samson told the Tribunal that in relation to the various medical reports, most of what had been written down by those medical practitioners was merely a record of what she had reported to them. In some instances, while she was asked how long could she walk, it was merely a guess as she had not recorded how long she could do those activities. Ms Samson says that while she can undertake some activities some of the time that she frequently has difficulty in performing those activities more than half the time. However, as I explained to Ms Samson the Introduction to Table 1 of the Determination provides that a self-report of symptoms alone is insufficient and that there must be corroborating evidence. The Introduction to Table 1 of the Determination provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
In relation to Table 1, to obtain a moderate 10 point rating the corroborating evidence would need to show that Ms Samson:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
In relation to Table 1, to obtain a mild 5 point rating the corroborating evidence would need to show that Ms Samson:
1 The person:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
This is a difficult impairment rating to assess because there is a lack of medical evidence, relevant to the Qualification Date with which Ms Samson agrees. I have no way of confirming one way or the other the correctness of Ms Samson’s self-report, so the Tribunal is left with no other choice but to refer to the medical evidence which documents what Ms Samson reported to her practitioners at the relevant time.
There is no corroborating evidence that as at the Qualification Date Ms Samson was unable to “walk…far outside the house”. Therefore a 10 point impairment rating is inappropriate.
Based on the medical evidence available I find that an Impairment Rating of 5 points is appropriate for Ms Samson’s Fibromyalgia Impairment under Table 1.
In this instance Ms Samson’s fibromyalgia and her mental condition both cause a functional fatigue impairment when she is performing activities requiring physical exertion or stamina. However, the Determination provides that where there is a common or combined impairment resulting from two or more conditions, 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.
SHOULDER IMPAIRMENT
Is Ms Samson’s Shoulder Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Ms Samson shoulder impairment was fully diagnosed in 2014.
The Secretary concedes that Ms Samson’s Shoulder Impairment was fully diagnosed, fully treated and fully stabilised at the Qualification Date.[78]
[78] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 June 2017, para 57.
I note that in 2013 Ms Samson was using non-steroidal anti-inflammatory drugs and awaiting a steroid injection.
In 2014 Dr Peter Georgius, Pain and Rehabilitation Specialist, reported that Ms Samson did not have any objective impingement or physical limitations associated with her joints, particularly her shoulders.[79]
[79] Exhibit 1, T Documents, T15, pages 143 – 144, report of Dr Georgius dated 20 September 2014.
In May 2015 Ms Samson was reviewed by Dr Tanya Morris, Director of Sunshine Coast Persistent Pain Management Service, for pain management. Dr Morris reported that Ms Samson reported to her that her bilateral shoulder pain is more manageable and her shoulders have fully recovered.[80]
[80] Exhibit 1, T Documents, T 15, pages 138 – 139, report of Dr Morris dated 10 June 2015.
The medical evidence supports a finding that Ms Samson’s Shoulder Impairment has been fully diagnosed and that there is nothing further to be done other than continued pain management. I find that as at the Qualification Date the medical evidence above supports a finding that Ms Samson’s left shoulder impairment is permanent and likely to persist for at least two years.
Evidence Identifying the Loss Of Function
In September 2014 Dr Georgius reported that Ms Samson:[81]
(a)is independent with all activities of daily living, however is restricted to light duties;
(b)has a full range of motion of both shoulders and was able to reach to the ceiling and touched the back the head with ease; and
(c)does not have any objective impingement physical limitations associated with any of her large or small joints and particularly her shoulders.
[81] Exhibit 1, T Documents, T15, pages 143 – 144, report of Dr Georgius dated 20 September 2014.
In March 2015 Ms Samson told Dr Kurtz that she has shoulder pain with vibration when mashing potatoes and mowing but that it eases with massage, chiropractic therapy and hot showers.[82]
[82] Exhibit 1, T Documents, T 15, pages 140 – 142, report of Dr Kurtz dated 23 March 2015.
The JCA reported in June 2016 that Ms Samson reported she has no difficulties completing the activities of daily living.[83]
[83] Exhibit 1, T Documents, T 17, page 152, Job Capacity Assessment report dated 28 June 2016.
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 2 of the Determination, which deals with Upper Limb Function, is the relevant Table.
The introduction to Table 2 provides:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
oFor the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submits that an appropriate Impairment Rating is 0 points.[84]
[84] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 23 June 2017, para 61.
Ms Samson conceded at the hearing that an appropriate Impairment Rating is 0 points.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities requiring physical exertion or stamina. Given that there is no evidence that this impairment is having any functional impact on Ms Samson using her hands or arms, an Impairment Rating of 0 points is appropriate for Ms Samson’s Upper Limb Impairment under Table 2.
Ms Samson’s Chronic Pain
In association with Ms Samson’s fibromyalgia Impairment, she has persistently complained of pain and her current treatment for this Impairment is pain management.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
I have already found that the condition causing the chronic pain, the Fibromyalgia Impairment, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to that condition. I do not consider that the evidence justifies any increase in that Impairment Rating.
WERE MS SAMSON’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) of the Act.
I have found that the total Impairment Rating for Ms Samson’s Impairments was 15 points.
DID MS SAMSON HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Ms Samson’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Ms Samson had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Ms Samson’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result she did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[Sgd]............................................
Associate
Dated: 9 August 2017

Date of hearing: 31 July 2017

Applicant: By Phone

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1229

9 August 2017

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Appeal

Date of hearing:	31 July 2017
Applicant:	By Phone
Solicitors for the Respondent:	Department of Human Services