Secretary, Department of Social Services and Jennifer Dunn

[2015] AATA 401

[2015] AATA 401

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2014/1686
Re	Secretary, Department of Social Services
APPLICANT
And	Jennifer Dunn
RESPONDENT

DECISION

Tribunal	Member I Thompson
Date	5 June 2015
Place	Adelaide

The Tribunal affirms the decision under review.  Ms Dunn is qualified to receive disability support pension from 5 April 2013.

.....................[Sgd].............................................

Member I Thompson

CATCHWORDS

SOCIAL SECURITY - Disability support pension - permanent conditions - whether the respondent has an impairment rating of 20 points or more under the Impairment Tables - whether the respondent had a continuing inability to work - whether the respondent has a severe impairment - decision under review is affirmed. 

LEGISLATION

Social Security Act 1991, s94

Social Security (Administration) Act 1999, (Cth)

CASES

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

Re Hage and Secretary, Department of Social Services [2014] AATA 895
Re Hynninen and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 664

Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

SECONDARY MATERIALS

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Social Security (Requirements and Guidelines - Active Participation for Disability Support Pension) Determination 2011

Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension

REASONS FOR DECISION

Member I Thompson

5 June 2015

INTRODUCTION

1. Ms Dunn lodged a claim for a disability support pension (DSP) on 5 April 2013.  Centrelink rejected the claim.  Ms Dunn applied to the Social Security Appeals Tribunal (SSAT) for a review of that decision.  Her application succeeded.  The SSAT set aside Centrelink’s decision.  On 2 April 2014 the Secretary, Department of Social Services, applied to the Tribunal for a review of the decision of the SSAT.  On 11 April 2014 the Tribunal made a Stay Order of the decision of the SSAT. 

   LEGISLATION AND ISSUES

2. The Social Security Act 1991 (the Act) sets out the qualification criteria for DSP.  Section 94 of the Act provides that an applicant must have:

   (a)a physical, intellectual or psychiatric impairment;

   (b)an impairment of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and

   (c)a continuing inability to work.

3. Under s 94 of the Act a person is regarded as having a “continuing inability to work” if:

   (a)they have an inability to work due to their accepted impairments for 15 hours or more a week; and

   (b)they have actively participated in a “program of support”.

   The second requirement is not necessary, however, if a person has a severe impairment of 20 points or more under a single Impairment Table.

4. Under ss 41 and 42, and cls 3 and 4 of the Social Security (Administration) Act 1999 (Administration Act) an applicant must qualify for a Social Security payment on the day on which the claim was made or within 13 weeks of that date (the “Assessment Period”).  For Ms Dunn’s claim for DSP, the Assessment Period is from 5 April 2013 to 5 July 2013. 

5. By letter dated 15 October 2013, an authorised review officer (ARO) at Centrelink affirmed Centrelink’s original decision to reject the DSP claim and made certain findings, namely:

   ·Ms Dunn has permanent conditions – osteoarthritis and psoriatic arthritis, vitamin B12 deficiency, hypercholesterolemia and GORD.

   ·The total impairment rating is 25.

   ·There is not a severe impairment.

   ·Ms Dunn had not met the program of support requirements.

   ·Ms Dunn did not have a continuing inability to work 15 hours per week or more because of the impairment.

6. On review of the Centrelink decision, the SSAT found that Ms Dunn had suffered from psoriatic arthritis for over 20 years and that she had long standing severe arthritis affecting nearly every joint in her body.  The SSAT considered that Ms Dunn’s impairment results from chronic pain in many joints and fatigue related to her medical conditions.  The SSAT found that Ms Dunn’s chronic pain in multiple joints and fatigue attracted 20 points under Table 1 of the Impairment Tables.  Accordingly it was a severe impairment and active participation in the program of support rules did not apply.  The SSAT concluded that Ms Dunn’s arthritis prevented her from working 15 hours per week any time in the following two years and therefore she has a continuing inability to work. 

7. The Secretary’s application to this Tribunal for review of the SSAT decision included propositions that the SSAT erred by deciding :

   (i)That Ms Dunn should be assigned impairments points under Table 1 of the Impairment Tables in respect of the functional impairment arising from her arthritic condition, rather than Tables 2, 3 and 4; and

   (ii)That 20 impairment points should be assigned under Table 1 in respect of the functional impairment arising from her arthritic condition.

8. In the statement of facts, issues and contentions, the Secretary contended that there is insufficient material for the Tribunal to be reasonably satisfied that, at any time during the Assessment Period, Ms Dunn:

   ·Had a “severe impairment” for the purposes of s 94(3B) of the Act;

   ·Had actively participated in a program of support as required by s 94(2)(aa) of the Act;

   ·Had a “continuing inability to work” for the purposes of s 94(2) of the Act; or

   ·Satisfied s 94(1)(c)(i) of the Act.

   That is, the Secretary contended that Ms Dunn was not qualified for DSP at any time during the Assessment Period and that the decision of the SSAT should be set aside.

9. The Secretary accepted that Ms Dunn suffers from certain, functional impairments and that she satisfies s 94(1)(a) of the Act.

10. In Ms Dunn’s statement of facts and contentions, it was claimed that her arthritis amounts to a global affliction which is rateable under Table 1 of the Impairment Tables, that the impairment was of 20 points or more under the Impairment Tables, that she had a continuing inability to work, and that the SSAT was correct in its finding.

    THE HEARING

11. The Hearing took place on 5 and 6, 19 and 20 March 2015.  Ms Dunn was represented by Ms M Riley, Welfare Rights Centre (SA) Inc and gave evidence.  The Secretary was represented by Mr A Schatz, Australian Government Solicitor, who called oral evidence from Dr Tschirn and an assessor from the Commonwealth Rehabilitation Service.  Numerous medical reports were received in evidence as exhibits together with records from Centrelink and from the Commonwealth Rehabilitation Service (CRS). 

    EVIDENCE

    Evidence of Ms Dunn

12. Ms Dunn gave oral evidence to the Tribunal.  She is now 62 years old.  She lives with her husband and she is closely involved with her three grown up children and her young grandchildren.  She completed year 11 at school and had no further formal study.  She worked as a chef for about 14 years.  The work was full time.  However that work came to an end about 12 years ago because of problems with her health.  Those problems have continued in the meantime and they have prevented her from successfully gaining other employment.

13. Ms Dunn had three hip replacements over a period of 10 years commencing about 20 years ago.  Over many years she has long-term diagnoses of arthritis and problems with shoulders, back and hands, hips and knees.

14. When Ms Dunn ceased work she was granted the DSP.  Later she became ineligible for income support payments because of her husband’s income.  Subsequently her husband was unwell on some occasions and the family income decreased because of his inability to work full time or at all.  That led to Ms Dunn contacting Centrelink and claiming the DSP on 5 April 2013.

15. In her evidence she described her daily routines and the difficulties she has encountered over many years in managing her various health problems.  She has trialled different types and doses of medication and she has consistently managed the side effects of them, trying to keep those negative effects to a minimum. 

16. Currently she suffers from widespread pain which affects various joints at different times.  Her main difficulties are constant pain in the lower back and constant pain in the left hand.  She said that she suffers from fatigue. Her sleep pattern is impaired by shoulder pain.  She has to lie on one side.  She needs to pace herself throughout each day.  She has a morning shower and holds on to the wall while she is in the shower.  After the shower her back pain tends to reduce somewhat.  She can walk around the house during the day.  However by night-time she tends to stiffen up and pain gets worse.  She said that she can sit down for quite some time; however she has to keep shifting positions.  A recliner seat is more helpful for her.  Her neck still troubles her, especially with bending.  From time to time, her neck cracks.  This has become a more regular occurrence.  Buttock pain is a problem and she is still worried about pain in her right shoulder. 

17. Generally, Ms Dunn and her husband do the shopping.  She can push the shopping trolley.  She can manage shopping by herself of small errands.  However, her husband assists with unpacking groceries and by the time she has arrived home, she is in more pain.  She can do some of the housekeeping.  She is restricted in her domestic work.  She tries not to lift heavy things.  For example she would not lift a three litre carton of milk.  Her husband does the sweeping, mopping and vacuuming.  She has problems hanging out the washing and sometimes suffers excruciating pain.  She sits on a stool and prepares the vegetables for the evening meal.  She can set the table.  However her husband helps and he does most of the cooking.  She enjoys sewing and scrap booking.  On occasions she might spend most of the day sewing or working on a scrap book.  She consistently has breaks and tries to move around and get comfortable. 

18. Ms Dunn walks from her house to the bus stop.  It is a relatively short walk, past about eight other houses.  She uses a walking stick.  Occasionally she takes a bus from her house in the south western suburbs of Adelaide to Tea Tree Plaza in the northern suburbs.  She meets friends there and she values that occasional, social encounter.  She has to walk several hundred metres from the bus stop at Tea Tree Plaza into the shopping centre and back again.  Occasionally she rides a bike and when she does, it is a round trip of about 10 kilometres and she rides slowly.  She can drive a car.  However, she tends to be the passenger which enables her to adjust her sitting position.  She accompanies her husband on occasional trips to the country.  He drives.  She looks after her grandchildren from time to time but she can no longer lift the youngest one

19. Back pain is a major impediment in her daily activities.  She was diagnosed with spinal canal stenosis and she said it affects her when bending over.  It is a pain that grabs her and it comes unexpectedly.  She may bend over three or four times without any adverse effect.  Then the pain may grab her and it is extremely uncomfortable.  She manages her medication which is essential to maintain a level of pain that she can endure.  She is strongly disinclined to take extra medication which could be addictive and have unpleasant side effects.  She takes Panadeine Forte which can help to relieve symptoms.  However she does not like to rely on medication and only takes Panadeine Forte as a last resort.  She receives continuing medical care and guidance from her general medical practitioner Dr Richardson.

20. In terms of work capacity, she said that she was more of a manual worker.  She had not been trained for any other type of work and did not consider she was a suitable candidate for clerical work in an office.

    Medical evidence

21. The Tribunal has examined the medical reports in documents produced by the Secretary in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth). They provide extensive history of Ms Dunn’s medical conditions and treatment.

22. For many years Ms Dunn was a patient of Dr Gary Champion.  He is a consultant physician/rheumatologist.  Numerous reports which Dr Champion wrote were received in evidence as exhibits and key points from those reports include: 

    ·report 24 July 2002[1] – left hip revision has been successful to fix a loose prosthesis, maintaining Methotrexate at 15mg weekly.

    [1] Exhibit 1, T7 p 47.

    ·report 22 October 2002[2] – Ms Dunn complaining of widespread joint pain particularly in both knees as well as symptoms very suggestive of right carpal tunnel, whole body scan organised and radiographs of the knees.

    [2] Exhibit 1, T8 p 48.

    ·report 30 October 2002[3] – blood tests indicate good control of inflammatory arthritis, bilateral knee radiographs indicate medial joint space narrowing, bone scan reveals widespread degenerative arthritis,  symptoms of carpal tunnel syndrome on the right, quite severe osteoarthritis in the base of the left thumb which was injected with Celestone-Chronodose.

    [3] Exhibit 1, T9 p 49.

    ·report 27 November 2002[4] – classical symptoms of paraesthesia pins and needles, particularly at night.

    [4] Exhibit1, T10 p 50.

    ·report 26 February 2003[5] – still experiencing problems with bilateral carpal tunnel syndrome, maintaining Methotrexate at 15mg weekly.

    [5] Exhibit 1, T11 p51.

    ·report 11 November 2003[6] – Ms Dunn had a good response to surgery for carpal tunnel syndrome, only has minimal paraesthesia in the left hand, features of a lateral epicondylitis bilaterally, advised her to wear a tennis elbow strap.

    [6] Exhibit 1, T21 p 61.

    ·report 4 May 2004[7] – quite widespread pain focused somewhat on the knees, continuing with medication which is Vioxx 25 mg daily, Losec, Methotrexate 15 mg weekly, also taking Cipramil.

    [7] Exhibit 1, T22 p 62.

    ·report 13 May 2004[8] – radiographs of Ms Dunn’s knees revealed a degree of medial joint space narrowing.

    [8] Exhibit 1, T23 p 63.

    ·report 18 August 2004[9] – severe neck pain with features suggestive of radiculopathy into both shoulders, cervical spondylosis with evidence of encroachment, medication continuing.

    [9] Exhibit 1, T24 p 64.

    ·report 16 March 2005[10] – lumbar spine radiograph revealed significant osteoarthritis in the facet joints as well as marked degeneration of the L5/S1 disc back pain has largely resolved.

    [10] Exhibit 1, T28 p 68.

    ·report 12 July 2005[11] – Ms Dunn has a lot of generalised musculo-skeletal pain, medication continues.

    [11] Exhibit 1, T29 p 69.

    ·report 11 October 2005[12] – Ms Dunn was progressing quite well as far as inflammatory arthritis is concerned, medication management issues under review.

    ·report 16 February 2006[13] – inflammatory arthritis under excellent control.

    ·report 16 November 2007[14] – inflammatory arthritis under excellent control, some discomfort around the thighs, as Ms Dunn has had hip replacements Dr Champion not happy about giving her any cortico-steroid injections.

    ·report 1 July 2008[15] – continuing consultations for psoriatic/rheumatoid arthritis, she is doing well and has no evidence of inflammatory arthritis, quite a degree of pain in the trapezius in the right hand side, injection of local anaesthetic, and heat treatment to continue.

    ·report 16 December 2008[16] – active psoriatic arthropathy in the interphalangeal joint of both thumbs, increased Methotrexate to 20 mg weekly.

    ·report 11 November 2009[17] – Ms Dunn presented with features of a bursitis in the left shoulder.

    ·report 12 March 2010[18] – still experiencing quite a degree of pain in the left shoulder and awaiting surgery at Flinders Medical Centre, aching in the knees and low back (degenerative arthritis), inflammatory arthritis is under control with Methotrexate 20 mg weekly.

    ·report 16 January 2012[19] – back pain has improved following a cortico-steroid injection, psoriatic arthritis under excellent control with Methotrexate 10 mg weekly.

    ·report 24 May 2012[20] – Ms Dunn’s low back pain has become fairly severe, discomfort at the base of the left thumb, clinical examination reveals tenderness over the L5/S1 facet joints, no evidence of any radiculopathy clinically, she has evidence of quite marked osteoarthritis at the base of her left thumb.

    ·report 25 July 2012[21] – bone scan reveals increased uptake in both the L5/S1 facet joints, arranged C/T scan guided local anaesthetic and cortico-steroids, psoriatic arthritis remains under control with Methotrexate 20 mg weekly.

    [12] Exhibit 1, T30 p 70.

    [13] Exhibit 1, T31 p 71.

    [14] Exhibit 1, T38 p 165.

    [15] Exhibit 1, T40 p 167.

    [16] Exhibit 1, T41 p 168.

    [17] Exhibit 1, T48 p 180.

    [18] Exhibit 1, T50 p 189.

    [19] Exhibit 1, T62 p 248.

    [20] Exhibit 1, T65 p 252.

    [21] Exhibit 1, T66 p 253.

23. Dr Brian Brophy was the director of neurosurgery at the Flinders Medical Centre.  In a report dated 2 May 2003[22], examination of Ms Dunn revealed that she had degeneration of the spine at the C6/7 level with chronic neck and shoulder symptoms.  Dr Brophy considered the symptoms may be aggravated by spondylosis.  However he did not consider that surgery was required.

    [22] Exhibit 1, T15 p 55.

24. Dr Michael Berce is a vascular surgeon.  In a report dated 13 May 2003[23] he confirmed that on examination, Ms Dunn had quite large varicose veins in the right leg which cause considerable burning, especially at the end of the day with intermittent bleeding.  He also indicated that she was still troubled by rheumatoid, osteo and psoriatic arthritis and she has had three hip replacements.  In his report he stated that Ms Dunn had “very gross varicose veins” at the medial aspect of the right thigh and calf.  He put her name on the waiting list at the Royal Adelaide Hospital for surgery.

    [23] Exhibit 1, T16 p 56.

25. Dr Mark Slee was the neurology registrar at the Flinders Medical Centre.  On 5 June 2003 he reported[24] that Ms Dunn had bilateral carpal tunnel syndrome.  Subsequently a right carpal tunnel release was performed, followed by a left carpal tunnel release.  Reports from the Repatriation General Hospital confirmed that the medical interventions were successful.[25] 

    [24] Exhibit 1, T18 p 58.

    [25] Exhibit 1, T19 p 59. Report dated 3 July 2003. T20 p 60 Report dated 14 August 2003.

26. In a report dated 14 September 2007,[26] Dr David Campbell, an orthopaedic surgeon based at the Repatriation General Hospital, wrote that Ms Dunn was having problems with bilateral buttock pain which “almost certainly” comes from the spine.  Physiotherapy was proposed.  Steroid injections would have been the preferred treatment.  However it was ruled out at that stage because of the hip replacements. 

    [26] Exhibit 1, T37 p 164.

27. An orthopaedic surgeon at the Flinders Medical Centre, Dr D Hermann, reported on 22 November 2007[27] that Ms Dunn was having trouble with her right shoulder.  He stated that she had an onset of increasing crepitus and pain, with a background of an arthroscopy with tendonitis in 2001.  Dr Hermann concluded that she probably had an acute tendonitis with some calcification.  He thought that the condition was now settling and he did not recommend any particular form of treatment.

    [27] Exhibit 1, T39 p 166.

28. Dr Michael Hayes, an orthopaedic consultant, reported on 1 October 2009[28] that he examined Ms Dunn at the orthopaedic clinic at the Flinders Medical Centre.  She had been developing increased shoulder pain, which was bad at night and was disturbing her sleep.  Dr Hayes reported that the x-ray examination revealed “… advanced osteoarthritic change in the acromioclavicular joint with marked irregularity on the under surface of the acromion with a possible recurrence of the subacromial spur.”  He stated that Ms Dunn’s main problem seemed to relate to the osteoarthritic acromioclavicular joint.  He arranged for an ultrasound study. 

    [28] Exhibit 1, T47 p 179.

1. Ms Dunn was admitted to the Repatriation General Hospital in December 2010 for right shoulder arthroscopy and rotator cuff repair.  The report from the Repatriation General Hospital [29] stated that “she had 5mm of the clavicle excised” and her arm was placed in a sling for six weeks.

   [29] Exhibit 1, T53 p 196.

2. From 2009 Ms Dunn was attending Adelaide Exercise Physiology for guidance on physical activities.  A practitioner at Adelaide Exercise Physiology reported on 18 August 2011[30] that Ms Dunn was riding her bike on a regular basis and the main restriction was psoratic arthritis.  A series of baseline functional measures revealed that she had reduced her weight by 5kg, her waist circumference was reduced by 8cm and she was making slight improvements with aerobic fitness.  A recommendation was made to continue with a physical activity program which mainly comprised cycling and gym based exercise.

   [30] Exhibit 1, T57 p 227.

3. In April 2013 Ms Dunn was referred for scans on the lumbar spine because of deteriorating low back pain radiating to the buttocks.  A report from Benson Radiology on 19 April 2013[31] concluded that there was degenerative change, with foraminal and canal stenosis.  In particular, findings at the L2/3 level indicated “mild facet joint degenerative change”.  At the L3/4 level there was “gaseous degeneration of the intervertebral discs”.  At the L4/5 level there was “bilateral moderate facet joint degenerative change with bony hypertrophy”.  The report stated that:

   The bony changes are combining with a broad base disc bulge to cause a moderately severe canal stenosis.  Bilateral foraminal narrowing, with likely impingement of the exiting nerve roots.  End plate osteophytes.

   The other finding was that there was mild facet joint degenerative change at the L5/S1 level.

   [31] Exhibit 1, T71 p 501.

4. Since 2007, Dr Richardson has been Ms Dunn’s general medical practitioner. He has treated her for “osteoarthritis, shoulders, spine, hip and knees and psoriatic arthritis.’[32]  He monitored her medication, arranged referrals to specialists, and coordinated her medical care through to the present time.  In a medical certificate which he wrote on 13 April 2012, Dr Richardson referred to the pain which Ms Dunn has in “small joints of limbs, plus pain and movement restriction shoulders, spine, both hips and knees” with a prognosis that the symptoms are ‘likely to deteriorate within 2 years”.[33]  He also added that pain and restriction of movement would impact on participation in return to work or study.

   [32] Exhibit 1, T58 p 229

   [33] Exhibit 1, T64 p 251.

5. In a pro forma report to Centrelink dated 4 April 2013,[34] Dr Richardson observed that; - “this form is impossible to complete due to the complexity of her medical history…”  He reiterated the diagnoses of “osteoarthritis multiple joints, psoriatic arthritis” with a date of onset more than 20 years previously, with the diagnosis having confirmation from “numerous orthopaedic surgeons and rheumatologist” for a period extending over 10 years.  He described symptoms of “chronic pain, back, shoulders, hands” together with “mobility and endurance reduced in multiple joints”.  He reported that the impact of the condition on Ms Dunn’s ability to function is expected to persist for more than 24 months and the effect of the condition is expected to deteriorate.  He wrote that Ms Dunn is “permanently unfit for work”.  It is noted that Dr Richardson’s report, dated 4 April 2013 is directly relevant in point of time to the assessment period for Ms Dunn’s DSP claim which, as previously stated, is from 5 April 2013 to 5 July 2013.

   [34] Exhibit 1, T68 p 282.

6. The Secretary arranged for Ms Dunn to be examined by an occupational physician, Dr Grantley Tschirn, on 8 July 2014.  Dr Tschirn provided a report dated 8 July 2014[35] and he also gave evidence to the Tribunal.  Dr Tschirn works in private medical practice and he is also an accredited assessor under ComCare, WorkCover South Australia, and in military personnel matters. 

   [35] Exhibit 5.

7. In his report[36] Dr Tschirn outlined the history of Ms Dunn’s medical conditions namely inflammatory arthritis (psoriasis), bilateral shoulder conditions, back pain, problems with hands, and reflux disease.  In summary, Dr Tschirn reported that Ms Dunn:

   “…has a long history of joint disease, related to osteoarthritis and psoriasis.  The psoriatic component appears to have affected the small joints of the hands and the hips whilst the osteoarthritic component has affected certain joints of the hands particularly symptomatic in the 1^st CMC of the left hand, the lumbar spine and knees.  She has undergone three (3) hip replacements one on the right and two on the left the second a revision operation.  It seems she fared quite well following these.

   She has had shoulder surgery on the right hand side with some issues later for which further orthopaedic referral occurred.  Bilateral carpal tunnel release operations were done with a very good post-operative result.

   In the last eighteen (18) months low back pain has been significantly worse.  She was previously quite active.  More recently she has developed problems with her left shoulder, which have not yet been fully evaluated and is also having more issues again with a chronic gastroesophageal reflux condition.”

   Dr Tschirn’s report included his findings on examination of Ms Dunn.  In relation to the upper limb there was deformity of the distal interphalangeal joints of the second and third fingers of both hands, consistent with primary osteoarthritis.  He noticed clicking on the left third finger which coincided with the finger getting temporarily locked and then unlocking and he also saw evidence of swelling compared with the right side.  He reported a full active range of movement in both elbows.  However in the shoulders he concluded that abduction on both sides was restricted to 150 degrees.  The spinal examination revealed normal movement in the cervical spine, however right and left lateral flexion were reduced to 75% of expected normal range.  Dr Tschirn reported that in the thoracolumbar spinal movement range there was marked restriction in flexion with fingertips to knee level only, due to bilateral low back pain.  In extension, it was similarly limited to about 50% of the expected normal range, with left and right lateral flexion limited symmetrically to 75% of the expected normal range.  The lower limb examination revealed that Ms Dunn was able to fully flex both knees, however active hip flexion to 90 degrees on each side was limited by acute low back pain. 

   [36] Exhibit 5.

8. In relation to the cervical spine, Dr Tschirn noted the report of Dr Brophy, neurosurgeon at the Flinders Medical Centre, dated 2 May 2003 which referred to “quite marked degeneration at the C6/7 level”.  In relation to the lumbar spine Dr Tschirn commented that: 

   … The referred symptomatology to the right thigh is consistent with advanced degenerative change in the lumbar spine with encroachment on the spinal canal, leading to what is known as spinal canal stenosis.  There doesn’t appear to be any clear claudication history, rather it is localised mechanical type low back pain rather than referred back pain that reduces her walking tolerance. …

9. In relation to lower limb conditions Dr Tschirn referred to the history of varicose vein stripping operations in the right leg and some swelling of the ankle.  He referred to the bilateral hip replacement arthroplasties and stated that no specific treatment other than symptom management is currently required. He reported on the upper limb conditions, noting osteoarthritis affecting the right shoulder and in the hands he reported osteoarthritis in the left thumb joints and psoriatic arthritis affecting the interphalangeal joints of both thumbs and the right third finger.

10. Dr Tschirn discussed Ms Dunn’s daily activities and he summarised the situation in his report as follows:

    Activities of Daily Living

Activity	Comments
Self Care	Ms Dunn cites herself as independent in self care, specifically showering, toileting and getting dressed.
Meals	She can prepare meals though has to sit at times and take breaks because of reduced standing tolerance (low back pain) and also her left hand tends to ache after a while, with gripping and grasping of food stuffs.
Home In	She avoids vacuuming, mopping and taking out the rubbish, her husband will do this as these aggravate her back quite noticeable.  She finds even fluffing up a doona can aggravate her back, so she is careful with this.  She can hang washing on an airer however has trouble pegging out heavy washing.  She can do it for a short period if necessary, reaching up causes pain down the right side and aggravates the nerve pain.
Home Out	She has difficulties, her husband tends to do these tasks.
Driving	She reports that she can drive an automatic vehicle safely.
Shopping	She can push the trolley and pick items off the shelves, however her husband will carry heavier bags.  Ms Dunn can put items away into cupboards when they get home.  She has no issues with household administration.
Tolerances
Sitting	She estimates a tolerance of around forty to forty five minutes.
Standing	Standing in one spot a tolerance of around five to ten minutes and with the use of a stick.
Walking	She can walk around 500m with the stick, although if she really pushed herself could probably walk a kilometre but she would have quite significant back pain afterwards, so tends to avoid this.
Lifting	She estimates a tolerance of around 2kg.  She can lift a 3L bottle of milk but it does hurt afterwards.
Bending	She can bend but with difficulty, she can get down to floor level, bending her back but would prefer to do this by getting down on her knees and then pushing up on a fixed object with her hands in order to arise.
Hold/Grasp/Dexterity	Has some difficulties with dexterity some of the time.

1. Dr Tschirn confirmed her current medication intake as follows:

   ·Lyrica 150mg twice daily (commenced around December 2013, has decreased pain in right buttock and thigh).

   ·Nexium 40mg one to two times daily, depending on symptom severity.

   ·Methotrexate 20 mg weekly plus folic acid.

   ·Tramadol 200mg twice daily for analgesia.

   ·Mobic 15 mg daily for anti-inflammatory effect.

   ·Prednisolone 1mg twice daily (is on this longer term, if ceases treatment activity tolerance seems to decrease).

   ·Panadol Osteo two tablets three times a day.

   ·Oestrogen patch two times weekly.

2. In evidence Dr Tschirn confirmed that he was aware that Ms Dunn had had three hip replacements, the first taking place when she was only 41.  He agreed that was “fairly young” for hip surgery and that the hip condition must have been “fairly severe” for such a major operation.[37]  He pointed out that psoriatic arthritis is typically associated with skin involvement and some people will also suffer from joint involvement as well.  He said that osteoarthritis involves specific joints or joint regions. The treatments for the two types of arthritis are quite separate and different.  He said that people with psoriatic or inflammatory type arthritis may experience stiffness in the morning and “take some considerable time to get moving”.[38]  He said that people with osteoarthritic type complaints suffer more pain with the more activity that they do. Ms Dunn suffers from both types of arthritis.  Depending on the degree, he stated that Ms Dunn’s spinal canal stenosis may lead to problems that can manifest as sciatica.  He acknowledged that Ms Dunn’s level of medication “suggests that her pain symptoms are quite significant for her.”[39]

   [37] Transcript p28.

   [38] Transcript p 5. 

   [39] Transcript p 32.

   THE IMPAIRMENT TABLES

3. The Secretary contended that Ms Dunn suffered from conditions causing specific functional impairments to multiple areas of her body and those impairments should be assessed under the specific tables relevant to the affected functions.  In particular, the Secretary submitted that Ms Dunn’s upper limb functional impairment should be assessed under Table 2, her lower limb functional impairment should be assessed under Table 3, while her spinal functional impairment should be assessed under Table 4.

4. By contrast, Ms Dunn contended that her condition should be rated under Table 1, for functions requiring physical exertion and stamina, for chronic pain in many joints and fatigue.  She claimed that the condition of arthritis amounts to a global affliction, rateable under Table 1.  She has suffered pain which affected her shoulders, hips, elbows, waist, jaw, neck and knees.

5. The Tribunal was referred to the Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension [40] which relates to the Tables that came into effect from 1 January 2012 (“the Guidelines”). 

   [40] Exhibit 17.

6. The Guidelines provide information about assessing the functional impact of pain.  They point out that there is not a Table specifically dealing with pain.

7. The Guidelines refer to chronic pain and the way in which it should be rated  under the Impairment Tables:[41]

   [41] Exhibit 17 , p23 & 24.

   Acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body but should resolve itself within a few months.

   However, chronic pain is a condition and where it has been diagnosed, fully treated and stabilised, the assessor should assess any loss of functional capacity using the Table relevant to the area of function affected. For example:

   *Table 4 (Spinal Function) can be used if the person has chronic back pain that impairs their ability to bend and move their trunk and to remain seated.

   *Table 3 (Lower Limb Function) can be used if the person has chronic pain in their lower limbs that impairs their ability to walk, climb stairs, or sustain a standing position.

   *Table 2 (Upper limb Function) can be sued if the person has chronic pain in their upper limbs that impairs their ability to reach up or lift objects.

   *Table 10 (Digestive and Reproductive Function) can be used if the person has chronic pelvic pain that impairs their ability to concentrate on or sustain tasks or work activities.

   *Table 1 (Functions Requiring Physical Exertion and Stamina) can be used if the person has chronic pain that impairs their ability to perform physical activities around the home and community

   *Table 7 (Brain Function) can be used if the person has chronic pain which is neuropathic and impairs their neurological or cognitive function, such as memory, attention and concentration.

8. In rejecting Ms Dunn’s DSP claim, the Centrelink ARO proceeded by making assessments under each of the specific tables relevant to the affected functions.

9. In contrast to the Centrelink ARO, the SSAT found that Ms Dunn’s impairment results from chronic pain in many joints and fatigue related to the condition, which was appropriately assessed as a whole under Table 1.  The SSAT found that Ms Dunn’s impairment rating should be 20 points under Table 1.  The SSAT stated that: 

   Mrs Dunn’s impairment results from chronic pain in many joints and fatigue related to the condition and its treatment and is best assessed as a whole under Table 1[42]

   [42] Exhibit 1, T2 p 8.

10. A rating of 20 points is a severe impairment and the SSAT found that all requirements of s 94(1) of the Act were met.  Accordingly the SSAT concluded that Ms Dunn was eligible to receive the DSP.

11. In ReUlukut and Secretary, Department of Social Services [2014] AATA 399, the Tribunal (Senior Member Isenberg) referred to the rules for the application of the Impairment Tables as follows:

    …  The Tables are function-based and describe functional activities, abilities, symptoms and limitations.  They are designed to assign ratings to determine the level of functional impairment.  Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination.  A claimant’s impairment is to 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: s 6(1) of the Determination.

    The Tables may only be applied after the person’s medical history has been considered.  An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. …

12. Under section 6(5) of the Impairment Tables a decision about whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition and whether treatment is continuing or is planned in the next two years. 

13. Section 10(1) of the Impairment Tables sets out the steps for table selection, as follows:

    (a)Identify the loss of function; then

    (b)Refer to the table related to the function affected, then

    (c)Identify the correct impairment rating.

14. Section 10(2) of the Impairment Tables requires that the table specific to the area of function affected must be applied, unless the instructions in a table specify otherwise, and section 10(3) requires that where a single condition causes multiple impairments, each impairment should be addressed under the relevant table.  Under section 10(5) where two or more conditions cause a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single table.

    CONSIDERATION

15. Ms Dunn gave evidence about her health problems and the limitations on her functions which arise from the problems.  She was impressive and truthful in her evidence.  An inconsistency arose on one topic in her evidence compared with evidence of a CRS assessor.  It related to a particular issue around cessation of a program of support.  As will become clear, the topic does not have any bearing on the final outcome of this review. If a finding had been necessary on the respective versions, it would be on balance that Ms Dunn was mistaken in her recollection about the topic.  Nonetheless, that mistake does not detract from the overall finding about the integrity of Ms Dunn’s evidence.  She was forthright and did not exaggerate, despite the accumulation of difficulties in her health that she has encountered over the past twenty years.

16. As the Secretary accepted that Ms Dunn suffers from certain, functional impairments and that she satisfies s 94(1)(a) of the Act, the next step is to determine whether Ms Dunn’s impairment attract any impairment points and the rating that should be assigned under one or more of the Impairment Tables. 

17. Section 94(1)(b) of the Act requires that the Tribunal decide whether Ms Dunn’s impairments are worth 20 points or more under the Impairment Tables. 

18. The selection of the correct Impairment Table is critical as the Secretary contended that it is incorrect to assess Ms Dunn’s chronic pain under Table 1.  The Secretary contended that the Tribunal ought to assess each relevant impairment resulting from a condition, that is fully diagnosed, treated and stabilised, against the Impairment Table that is specific to the function that is affected

19. In the statement of facts issues and contentions, the Secretary did not dispute that the following conditions were fully diagnosed, treated and stabilised during the Assessment Period: - osteoarthritis, psoriatic arthritis, metabolic (vitamin B12 deficiency), and hypercholesterolemia.  The Secretary further contended that a zero rating under the Impairment Tables applied to each of metabolic (vitamin B12 deficiency), and hypercholesterolemia, which broadly had minimal or limited impact on Ms Dunn’s functioning.  In effect, Ms Dunn agreed.  In her statement of facts and contentions she stated:

    The applicant contends that the other conditions of metabolic (vitamin B12 deficiency), hypercholesterolaemia and GORD could not be assigned impairment points.  The respondent agrees but notes that in combination with her other impairments these conditions still have some impact on her stamina/ability to work.

1. The Secretary contended that the conditions which affected Ms Dunn could be divided into upper limb function, spinal function and lower limb function.  In particular, the Secretary contended that the impairment ratings should be:

   ·Upper limb function – five points under Table 2 of the Impairment Tables

   ·Spinal function – ten points under Table 4 of the Impairment Tables

   ·Lower limb function – five points under Table 3 of the Impairment Tables.

2. By contrast, Ms Dunn contended that:

   ·Upper limb function – Table 2 does not sufficiently assess the functional impairment

   ·Spinal function – Table 4 does not adequately assess the functional impairment

   ·Lower limb function –  Table 3 does not adequately assess the functional impairment

   ·Her arthritis amounts to a global affliction that should be rated 20 points under Impairment Table 1

3. Table 1 is headed “Functions requiring Physical Exertion and Stamina”.  The Tribunal notes that the introduction to Table 1 says that it should 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 a qualified medical practitioner and the table provides examples of corroborating evidence, including diagnosis of conditions commonly associated with cardiac or respiratory impairment, or medical evidence confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina which may include end stage organ failure, widespread cancer, chronic pain or other long term conditions.

4. In his report,[43] Dr Tshcirn provided his view, which the Tribunal accepts, about the correct use of the Impairment Tables in relation to Ms Dunn. Dr Tschirn referred to the Guidelines and noted that impairment which results from chronic pain should be assessed under the Table that is relevant to the function which is affected.  He reported that the use of Table 1 was not appropriate in relation to Ms Dunn because of her conditions which:

   …represent a collection of specific monoarthropathic conditions, i.e. affecting one particular area/joint of the body and therefore are assessed under the specific regional tables that cater for specific joint disease. The chronic pains described do not fit the diagnosis for a diffuse pain syndrome nor are cardiorespiratory conditions impacting and thus Table 1 is not felt to be an appropriate method of assessment.

   [43] Exhibit 5.

5. The introduction to Table 2 confirms that it should be used “where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.”  There is medical evidence of a diagnosis of the condition and clear evidence that Ms Dunn is impaired in her use of hands, arms and right shoulder. In Dr Tschirn’s report the diagnosis was stated as follows – “ Osteo arthritis R ACJ. Resection of Distal Clavicle. Complete tear. Supraspinatus tendon, mini open repair”

   In relation to Ms Dunn’s hands, Dr Tschirns’ diagnosis was :-

   Osteoarthritis of the left carpometacarpal (CMC) and metacarpophalangeal (MCP) joints left thumb.

   Psoriatic arthritis interphalangeal joints of thumbs and right 3^rd finger PIPJ.

   There is evidence of primary osteoarthritis, given the changes in the hands and this is probably the reason for the triggering of the left third index finger as well.

6. The introduction to Table 3 confirms that it is to be used where “the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet”.  Ms Dunn gave evidence about problems with lower limb function.  In addition, medical evidence confirms the diagnosis of lower limb impairment.  In Dr Tschirn’s report the diagnosis was stated as follows:-“bilateral hip replacement arthroplasties”. He also referred to the history of varicose vein stripping operations in the right leg and some swelling of the ankle.

7. The introduction to Table 4 says that it 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.”  Ms Dunn gave evidence of the problems which she has with her spinal function and medical evidence confirms cervical spondylosis, lumbar problems and spinal stenosis.  In relation to the cervical spine, Dr Tschirn’s report refers to the finding of the neurosurgeon, Dr Brophy, namely a “quite marked degeneration at the C6/7 level”.  In relation to the thoracolumbar spine Dr Tschirn’s report confirms the diagnosis of lumbar spondylosis.

8. On consideration of all of Ms Dunn’s evidence together with the medical evidence the Tribunal is satisfied that the upper limb functional impairment should be assessed under Table 2, the lower limb functional impairment should be assessed under Table 3 and that the spinal functional impairment should be assessed under Table 4.  The Tribunal is satisfied that the ratings under those specific tables can be properly assessed without double counting, while being mindful of helpful remarks by Member Professor McCallum in Re Hage and Secretary, Department of Social Services [2014] AATA 895 that “there is, naturally enough, a slight overlap between the various tables.”

9. The Guidelines also provide a reminder about the risk of double counting.  As an example, they mention:

   Table 4 – Spinal Function instructs that this Table’s descriptors are to be met only from spinal conditions and that restrictions on overhead activities resulting from shoulder conditions should be rated under Table 2 - Upper Limb Function.[44]

   [44] Exhibit 17, p21.

   Upper limb function

10. Ms Dunn gave evidence about the pain that she suffers and the difficulty that she has in the use of hands, fingers and arms.  The relevant table in relation to upper limb function is Table 2.  For a mild functional impact on activities using hands or arms the descriptor in the Table provides:

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.

10

...

1. On consideration of Ms Dunn’s evidence and the medical evidence, the Tribunal is satisfied that the condition involving Ms Dunn’s upper limb function was fully diagnosed, treated and stabilised at the time of the DSP claim.  The Tribunal finds that the appropriate impairment rating is 5 points as the evidence has established that Ms Dunn has difficulty with most of the specified activities in the Table.

   Lower limb function

2. Table 3 is the relevant table in relation to lower limb function.  For a mild functional impact on activities using lower limbs, the table provides:

5

There is a mild functional impact on activities using lower limbs.

(1)       At least one of the following applies:

(a)       the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)       the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)       the person has some difficulty climbing stairs; and

(2)       At least one of the following applies:

(a)       the person is unable to stand for more than 10 minutes;

(b)       the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10

…

The Tribunal accepts that the condition affecting lower limb function was fully diagnosed, treated and stabilised at the time of the DSP claim. Ms Dunn has difficulty walking to local facilities, walking around a shopping mall and supermarket without a rest.  In addition she needs to use a walking stick.  The appropriate rating is 5 impairment points in accordance with the descriptors in Table 3.

Spinal function

1. The relevant table is Table 4 in relation to spinal function.  It provides:

5

…

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).

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.

30

….

1. Noting the descriptor in Table 4 the Tribunal is satisfied that Ms Dunn sustained a severe functional impact on activities involving spinal function during the assessment period. 

2. The Tribunal has taken into account Ms Dunn’s comprehensive evidence together with all of the medical evidence and reports regarding her spinal function.  While noting Dr Tschirn’s view that a rating of 10 points would be appropriate for the impact of the spinal condition, the Tribunal has had the benefit of assessing Ms Dunn’s lengthy evidence which included a detailed cross-examination.  The Tribunal accepts Ms Dunn’s evidence that she is not able to perform overhead activities.  For example, she said that she suffers from excruciating pain if she tries to hang out the washing.  Her problems are worse than an inability to sustain overhead movements.  It is clear from all of the evidence that Ms Dunn’s impairment arising out of the thoracolumbar spine condition and cervical spine condition have caused an inability to perform any overhead activities.

3. In addition, although it is not necessary to determine if there are other impacts, the Tribunal accepts that she has difficulty turning her head without moving her trunk and that she has difficulty bending forward to pick up a light object. The Guidelines are useful in this regard:

   … under the 20 point descriptor the ‘or’ which comes at the end of each point (a),(b) and (c) indicates that he person must be unable to do at least one of the activities listed to meet this descriptor[45]

   The Guidelines go on to say:

   When determining whether the person is able to undertake the activities listed under the descriptors, consideration must be given to whether the person suffers pain on undertaking the activities.[46]

   [45] Exhibit 17, p 33.

   [46] Exhibit 17, p 33.

4. The evidence establishes that Ms Dunn suffers pain with activities involving spinal function.  As Dr Tschirn acknowledged in his evidence, Ms Dunn’s level of medication indicates that the pain she suffers is quite significant for her. Indeed, in evidence Dr Tschirn  pointed out the issues in exploring the effects of pain :

   Well, pain is an unpleasant, noxious symptom and there are very few people that enjoy experiencing pain. It’s very difficult to measure and it’s very subjective in that people will make their own decisions about how much pain they are prepared to tolerate and it’s a very individual experience, and it’s very difficult for others to appreciate that. The significance I would make of that would be not so much whether she’s dependent on treatment in order to achieve a certain level of function, but whether that treatment itself causes any functional impairment. Now, Ms Dunn is on an array of medications which all have side effects. There’s quite a wide variation in how well people tolerate medications, particularly when you have multiple medications. Again, that’s very individual. You have to assess each person as they come as to whether they are having any difficulties with that or not.[47]

   The Guidelines provide further assistance :-

   Consideration must also be given to where the person can undertake the activity on a repetitive or habitual basis. …  For example, under the 20 point descriptor, if person is able to bend forward to pick up light object from a desk or table but after doing this once has to rest their back and is unable to bend forward for the remainder of the day it should be considered that the person is therefore unable to do this activity.[48]

   [47] Transcript p 6 & 7.

   [48] Exhibit 17 p 33.

5. The evidence establishes that Ms Dunn is severely impaired from undertaking activities involving spinal function on a regular or habitual basis. For example, even with sitting down, she has difficulties and regularly shifts positions, or takes panadeine forte, to get some comfort.

6. The Tribunal finds that Ms Dunn’s condition involving the cervical spine and thoracolumbar spine was fully diagnosed, treated and stabilised at the time of making the DSP claim.  The appropriate rating is 20 impairment points for her spinal function.

   CONTINUING INABILITY TO WORK

7. The next issue for determination is whether Ms Dunn had a continuing inability to work as required by s 94(1)(c)(i) of the Act. 

8. Section 94(2) of the Act defines a continuing inability to work as follows:

   (2)  Continuing inability to work

   A person has a continuing inability to work because of an impairment if the Secretary is satisfied that: 

   (aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B)--the person has actively participated in a program of support within the meaning of subsection (3C); and

   (a) in all cases-- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

   (b) in all cases-- either: 

   (i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

   (ii) if the impairment does not prevent the person from undertaking a training activity--such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

   Note:  For work see subsection (5).

9. With an impairment rating of 20 points under a single impairment table, it follows that Ms Dunn has a severe impairment within the meaning of s 94(3B) of the Act and she does not need to meet the requirement of actively participating in a program of support.

10. In deciding whether there is a continuing inability to work under s 94(1)(c)(i) a number of factors must be disregarded.  They were set out in Re Hynninen and Secretary, Department of Families, Housing Community Services and Indigenous Affairs [2012] AATA 664 as matters to be disregarded, namely:

    23. …

    ·any impairments that have not been assigned a rating under the impairment tables (Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500);

    ·the availability of work in the person’s locally accessible labour market (s94(3)(b));

    ·the person’s motivation to work or train, except when medical evidence indicates that the lack of motivation is directly attributable to the impairment (Secretary, Department of Social Security v Pusnjak [1999] FCA 994; (1999) 56 ALD 444, 451);

    ·the person’s preferences regarding the type of work or training (Crossland and Secretary, Department  of Family and Community Services [2004] AAT 864 [34]);

    ·the person’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities (Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846); and

    ·the existence of a benign employer of sheltered or special employment; that is, only the normal workplace is considered (Li and Secretary, Department of Employment and Workplace Relations [2007] AATA 1606; (2007) 96 ALD 769; Re Hamal and Secretary, Department of Social Service [1993] AATA 283; (1993) 30 ALD 517).

11. The Tribunal received evidence of a number of assessments regarding Ms Dunn’s job capacity. 

12. A Job Capacity Assessment (JCA) report dated 3 January 2012[49] recorded Ms Dunn’s base line work capacity at 8-14 hours per week with a capacity for work within two years with intervention of 15-22 hours per week.  The rationale for the base line work capacity was expressed as follows:

    The clients work capacity is affected by her permanent condition of Osteoarthritis in multiple joints.  Her condition stops her from being able to sit, walk or stand for prolonged periods of time.  Client is unable to lift over 5 kg.  Client is best suited to light employment which allows frequent postural change and which is spread over several days to allow for recovery. 

    This assessment takes into account the prolonged period of absence from the workforce which would have resulted in significant deconditioning which indicates that the client is likely to require a graduated program of capacity building.

    [49] Exhibit 1, T59.

13. In the same report, the rationale for the capacity for work within two years with intervention at 15-22 hours per week was stated as follows:

    With the addition of disability specific interventions particularly identification of suitable duties, and a graduated capacity building program there is likely to be an improvement in capacity to 15-22 hpw.[50]

    [50] Exhibit 1, T59 p 242.

14. In a subsequent JCA report dated 16 April 2013[51] the report repeated the work capacity assessment of the initial report, namely a base line work capacity of 8-14 hours per week and a capacity for work within 2 years with intervention of 15-22 hours per week. 

    [51] Exhibit 1, T70 p 491.

15. A JCA report dated 17 June 2013[52] similarly concluded a base line work capacity of 8-14 hours per week and a capacity for work of 15-22 hours per week within two years with intervention.

    [52] Exhibit 1, T72 p 502.

16. A JCA report dated 20 November 2014[53] drew different conclusions , namely a base line work capacity of 0-7 hours per week and a capacity for work within two years with intervention also of 0-7 hours per week, with the rationale expressed in this way:

    Client does not have the stamina to sustain a 3 hour shift each day (ie reliably) even in light employment types due to the significant impact of her arthritis on endurance / stamina and general physical functioning.  The condition is likely to further deteriorate despite optimal treatment according to medical information and therefore she is unlikely to increase work capacity even with specialist disability support.  The work capacity of this client has been reduced from the previous assessment due to medical information indicating the condition has worsened significantly and is likely to further deteriorate in the next 2 years.

    In the same report comments were made about functional impact as follows:

    … Client is unlikely to be able to sustain work related tasks of a clerical / sedentary nature for a 3 hour shift each day with any degree of reliability for a 6 month period.  Client is significantly physically restricted and has difficulty walking around shops (relying on trolley and having to rest/let husband take over at times), has pain and fatigue when attempting light household tasks and is likely to struggle with public transport due to mobility / balance issues and generalised fatigue resulting from her condition.[55]

    [53] Exhibit 12.

    [55] Exhibit 12, p 7.

17. While the Tribunal notes the deterioration of Ms Dunn’s condition reported in the latest JCA, the Tribunal is obliged to consider Ms Dunn’s DSP qualification during the assessment period.  As it was stated in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs 2012 AATA 922 [at 34]:

    In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks).  Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notable where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).  This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors.  If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.

1. The evidence at the time of the assessment period demonstrates clearly that Ms Dunn would struggle to find and maintain employment.  She had not worked for some ten years or more.  Previously she had worked as a chef.  It is highly unlikely that she could sustain work in a clerical or administrative capacity.  As she herself said, she has no experience in clerical tasks.  The Tribunal is left with the clear impression that she could not endure the patterns, routines and requirements of work, whether the work was manual, clerical, administrative or otherwise.  Based on her own evidence and the abundant medical evidence about her circumstances leading up to and during the assessment period, she would struggle significantly in any type of employment.  She needs to rest.  She needs to be careful about physical movement.  She uses a walking stick.

2. Work is defined in s 94(5) of the Act as follows:

   work means work: 

   (a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

   (b) that exists in Australia, even if not within the person's locally accessible labour market.

3. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399, the Tribunal (Senior Member Isenberg) considered the meaning of “work” in the context of s94(2)(a) as defined in s94(5) of the Act and stated [at 58] :-

   When considering whether a person is prevented from doing ‘any work’ in s94(2)(a), the capacity of the person to attract an employer in the open labour market having regard to the level and nature of the disabilities suffered and the type of work that the person was capable of undertaking without retraining, should be taken into account: Secretary, Department of Families, Community Services and Indigenous Affairs Harris [2010]FCA 360

4. In that case the applicant’s condition included a psychiatric condition and the Tribunal went on to say[at 59] :-

   …the Applicant has little, if any, to attract an employer in the open labour market having regard to the debilitating effect of her psychiatric condition in particular. She has few work skills and in my view is it is highly unlikely that any normal workplace could tolerate her symptoms, especially the manifestation of her despair and her fatigue: Li and Secretary, Department of Employment and Workplace relations [2007] AATA 1606; Hamal and Secretary ,Department of Social Services [1993]AATA 283; Secretary, Department of Family and Community Services and Bell [1998]52ALD 472.

   On all of the evidence it is clear that Ms Dunn’s impairments have resulted in a loss of functional capacity which adversely affects her ability for work and the loss is quite insurmountable.  In effect, she would have to be nursed through a working day.

5. There was deterioration in Ms Dunn’s condition, as reported in the last JCA report dated 20 November 2014.  While it comes without surprise that this assessment noted a steady deterioration in Ms Dunn’s condition, the benefit of hindsight is irrelevant as the Tribunal is satisfied about the evidence of the level of incapacity which Ms Dunn had in the assessment period.  In short, the Tribunal agrees with Dr Richardson’s comment, previously referred to in his report dated 4 April 2013 that Ms Dunn is “permanently unfit for work”.[56]

   [56] Exhibit 1, T68 p 282-292.

6. Training activity, which is referred to in s 94(2)(b) of the Act, is defined in s 94(5) of the Act as follows:

   training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments: 

   (a) education;

   (b) pre-vocational training;

   (c) vocational training;

   (d) vocational rehabilitation;

   (e) work-related training (including on-the-job training).

7. The Secretary contended that Ms Dunn’s impairments did not of themselves prevent her from undertaking a training activity that would enable her to work at least 15 hours per week within two years of the assessment period. 

8. However, as with Ms Dunn’s inability to work, it is clear that she would have extreme difficulty undertaking and maintaining a relevant training activity.  The Tribunal considers that the impairments that she has are sufficient to prevent her from undertaking a training activity within two years of the assessment period.

   SUMMARY

9. The Tribunal finds that s94(1)(a) of the Act regarding physical impairment is satisfied.

10. As outlined previously, the Tribunal funds that Ms Dunn’s spinal condition was fully diagnosed treated and stabilised during the assessment period. The applicable rating for the spinal condition is 20 points, the applicable rating for the lower limb condition is 5 points and the applicable rating for the upper limb condition is 5 points. With a total of 30 impairment points, the criterion in s94(1)(b) of the Act is satisfied.

11. Ms Dunn has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single impairment table.

12. In view of the finding that Ms Dunn has a severe impairment within the meaning of s 94(3B) there is no need for her to have actively participated in a program of support within the meaning of s 94(3C) of the Act.

13. In all of the circumstances that Tribunal is satisfied that Ms Dunn has a continuing inability to work within the meaning of s 94(1)(c) of the Act.

    DECISION

14. For the reason set out above the Tribunal affirms the decision under review.  Ms Dunn is qualified to receive the DSP from 5 April 2013.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member I Thompson

........................[Sgd]........................................

Administrative Assistant

Dated 5 June 2015

Date(s) of hearing	5, 6, 19 and 20 March 2015
Advocate for the Applicant	Mr A Schatz
Solicitors for the Applicant	Australian Government Solicitor
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc

[54] Exhibit 12, p 8.