Spall and Secretary, Department of Social Services (Social services second review)
[2020] AATA 2524
•29 July 2020
Spall and Secretary, Department of Social Services (Social services second review) [2020] AATA 2524 (29 July 2020)
Division:GENERAL DIVISION
File Number: 2019/1140
Re:Amanda Spall
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:29 July 2020
Place:Brisbane
The Tribunal affirms the decision under review.
...................................[SGD].....................................
Member R Maguire
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – whether Applicant suffered a physical, intellectual or psychiatric impairment – where Applicant suffers from spinal, upper and lower limb, mental health and heart conditions – whether conditions fully diagnosed in the qualification period – whether conditions fully treated and stabilised in qualification period – whether Applicant’s impairment is 20 points or more under the Impairment Tables – whether the Applicant has a continuing inability to work – whether Applicant participated in Program of Support – where overall impairment arising from fully diagnosed, fully treated, and fully stabilised conditions is nil points – 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 2011Social Security (Active Participation for Disability Support Pension) Determination 2014
SECONDARY MATERIALS
Social Security Guide 2020
REASONS FOR DECISION
Member R Maguire
29 July 2020
On Monday 12 February 2018, the Applicant lodged a claim for Disability Support Pension (“DSP”)[1] in which she listed her disabilities[2] as “curvature of the spine, scoliosis, spondylosis, degenerative disease, osteoarthritis, fibromyalgia, bulging discs, pinched nerves, headaches, torn rotator cuffs, no cartilage in both knees, find it difficult to sit, stand and walk for long periods of time, hiatus hernia, fatigue, stress, anxiety, depression, spurs on the bottom of both feet.”
[1] Exhibit 1, T Documents, T33, p230.
[2] Exhibit 1, T Documents, T5, p109.
At questions 173 and 176 of her claim form, the Applicant indicated[3] she was “waiting for appointment to specialist” and “still waiting on treatment plan”.
[3] Exhibit 1, T Documents, T5, p110.
On 24 March 2018, a DSP Medical Assessment Recommendation (“MAR”) was conducted by a psychologist, considering the Applicant’s anxiety and depression (“mental health conditions”) and osteoarthritis[4]. The assessor considered that none of the Applicant’s conditions were fully diagnosed, treated and stabilised, and recommended an Employment Services Assessment Recommendation (“ESA”) for the purposes of assessing the Applicant’s work capacity.
[4] Exhibit 1, T Documents, T12, pp128 – 129.
On 10 April 2018, the Department of Human Services rejected the Applicant’s claim for DSP on the basis that her medical conditions did not have an impairment rating of 20 points or more[5].
[5] Exhibit 1, T Documents, T15, pp132 – 133.
On 24 April 2018, an ESA was submitted which found[6] the Applicant’s baseline work capacity to be 15 to 22 hours per week, and a capacity for work within 2 years with intervention as 23 to 29 hours per week.
[6] Exhibit 1, T Documents, T16, pp134-139.
On 25 July 2018, another MAR[7] was undertaken by a psychologist to assess the Applicant’s conditions of “chronic back pain, chronic neck pain, bilateral shoulder pain, bilateral foot pain, depression, fibromyalgia”. The assessor recommended that a Job Capacity Assessment (“JCA”) be undertaken to assess the Applicant’s medical eligibility for DSP and to assign an impairment rating if appropriate.
[7] Exhibit 1, T Documents, T20, pp149 – 150.
On 23 August 2018, a face-to-face JCA was conducted by a registered psychologist, who assessed that the lower limb, upper limb, spinal conditions and fibromyalgia were fully diagnosed but not fully treated and stabilised whilst the mental health conditions were not considered fully diagnosed, treated and stabilised[8].
[8] Exhibit 1, T Documents, T23, pp155 – 167.
On 31 August 2018, an Authorised Review Officer (“ARO”) made similar findings to the JCA, and affirmed the decision to reject the Applicant’s claim for DSP.[9]
[9]Exhibit 1, T Documents, T24, pp168-173.
On 25 January 2019, the Social Services and Child Support Division (“AAT 1”) affirmed the decision to reject the Applicant’s claim for DSP.[10]
[10]Exhibit 1, T Documents, T2,pp 3 – 25.
On 1 March 2019, the Applicant applied to the General Division of the Administrative Appeals Tribunal for further review of the decision to reject her DSP claim.[11]
[11] Exhibit 1, T Documents, T1, pp1 – 2.
This matter was heard by the Tribunal on 17 July 2020 at which time the Applicant was self represented, and the Respondent was represented by Mr Christopher Murphy.
It was agreed that the qualification period was the period of 13 weeks commencing on 12 February 2018.
The Tribunal admitted exhibits as follows:
Exhibit 1 T Documents (pages 1 – 241).
Exhibit 2 Respondents Statement of Facts Issues and Contentions dated 30 April 2020 (pages 1 to 14) attaching:
·Annexure A: Letter from Dr Ian Cheung to Dr Amjid Ali Muhammed dated 28 January 2020; and
·Annexure B: POS Calculator Output for Date Range 11 February 2015 – 11 February 2018.
Exhibit 2A Respondents Statement of Facts, Issues and Contentions dated 15 July 2020 (pages 1 – 16).
Exhibit 3 Applicant’s first bundle of medical evidence (6 pages) comprising:·Report of Dr Kate Celkys, Rheumatology Registrar electronically signed on 9 July 2019; and
·“Home Visit Feedback” Report dated 22 July 2019 by Megan Baker, Occupational Therapist, on behalf of MK Therapy.
Exhibit 4 Applicant’s second bundle of medical evidence comprising:
·Letter from Dr Ian Cheung to Dr Amjid Ali Muhammad dated 28 January 2020 (2 pages);
·“Occupational Therapy Report: Home visit feedback” dated 19 November 2019 by Megan Baker, Occupational Therapist on behalf of MK Therapy (5 pages);
·“World Health Organisation Disability Assessment Schedule 2.0” prepared by the Applicant dated 8 September 2019 (4 pages);
·“Team Care Arrangement Authority” dated 18 January 2011 (2 pages); and
·“Patient Medical History from PHC Beenleigh retrieved 28 July 2011 (9 pages).
Exhibit 5 Applicant’s written submissions attaching:
·X-Ray report from Queensland X-Ray by Dr Piyoosh Kotecha dated 11 October 2007;
·X-Ray report from Queensland X-Ray by Dr Piyoosh Kotecha dated 25 February 2008;
·Screenshot of HealthEngine profile of Denisia Hockley, Clinical Psychologist, with handwritten annotations;
·Screenshot of HealthEngine profile of Maree Thorpe, Physiotherapist, with handwritten annotations;
·Report of Dr Kate Celkys, Rheumatology Registrar, electronically signed on 9 July 2019, with handwritten annotations;
·Letter from Dr Aakriti Shrestha to Centrelink dated 18 April 2019; and
·Letter from Lindy Fraser dated 27 April 2019.
Exhibit 6 Statement dated 15 July 2020 from Julie Travers and a Statement dated 16 July 2020 from Cathy Arjona;
Exhibit 7 Extract from a Register of Practitioners in respect of Health Practitioner, Mrs Amanda Jane Frame, showing her profession as a Psychologist.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (“the Act”), the Social Security (Administration) Act 1999 (“the Administration Act”) the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“the POS Determination”).
The relevant policy is contained in the Guide to Social Security Law[12].
[12] Social Security Guide 2020 <>
The Administration Act requires that in order to receive DSP payments, an Applicant must be qualified for DSP either on the date of application, or become so qualified at some stage within the period of 13 weeks following,[13] (“the qualification period”).
[13] Clause 4 of Schedule 2 of the Administration Act, discussed by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123, and cases cited therein.
Section 94 of the Act prescribes the criteria that must be met during the qualification period in order to receive to payment of DSP. For present purposes, the relevant part of this section is:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system;
…
The qualification criteria set out in subsection 94 (1) is conjunctive, and if one element is not satisfied, a person will not be qualified for DSP.
The Impairment Tables referred to in section 94 are set out in the Determination made under section 26 of the Act, and which came into force on 1 January 2012.
The Determination defines “impairment” thus:
“impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”[14]
[14] Section 3 of the Determination.
Section 5(2) of the Determination provides:
(2) The Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
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.[15]
[15] Section 6(1) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[16]
[16] Section 6(2) of the Determination.
An impairment rating can only be assigned to an impairment if the condition causing that impairment is permanent,[17] and the impairment that results from that condition is more likely than not, in the light of available evidence, to persist for more than two years.[18]
[17] Section 6(3)(a) of the Determination.
[18] Section 6(3)(b) of the Determination.
Section 8 of the determination is headed “Information that must not be taken into account in applying the Tables”. Self reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19] Moreover, unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[20] The table provides the following example in this regard:
“Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.”
[19] Section 8(1) of the Determination.
[20] Section 8(2) of the Determination.
The determination provides that a condition is regarded as permanent, if it has been fully diagnosed by an appropriately qualified medical practitioner; and has been fully treated; and the condition has been fully stabilised; and the condition is more likely than not in light of available evidence to persist for more than two years.[21]
[21] Section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[22]
[22] Section 6 (5) of the Determination.
A condition is considered to be fully stabilised[23] if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two 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 two years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[23] Section 6 (6) of the Determination.
Reasonable treatment is treatment that is: available at a location reasonably accessible to the person; is at reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[24]
[24] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Table,[25] it is necessary to:
(a)identify the loss of function; then
(b)refer to the table related to the function affected; then
(c)identify the correct impairment rating.
[25] Section 10 of the Determination.
The Tables provide for the allocation from points from 0 to 30 depending on the severity of impairment. In essence, these are as follows:
0 points No functional impact
5 points Mild functional impact
10 points Moderate functional impact
20 points Severe functional impact
30 points Extreme functional impact.
In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[26]
[26] Sub-sections (3) and (4) of section 10 the Determination.
Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[27]
[27] Sub-sections (5) and (6) of section 10 the Determination.
An impairment rating can only be assigned in accordance with the rating points in each impairment table; it cannot be assigned between consecutive impairment ratings; 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 of the descriptors for that level of impairment are satisfied, and a rating cannot be assigned in excess of the maximum rating specified in each table.[28]
[28] Section 11 of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94 (1)(c) of the Act a person must meet the criteria of section 94 (2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be a severe impairment if the person’s impairment is 20 points or more under the Impairment Tables, of which 20 points or more are under a single impairment table.[29]
[29] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings is to be determined at the date of claim, or where a person is not qualified on that date, but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[30]
[30] Sections 41 and 42; clauses 3 and4(1) of Schedule 2, Part 2 of the Administration Act.
SUBMISSIONS – RESPONDENT
The Respondent submitted that as the Applicant lodged her application for DSP on 12 February 2018, the qualification period ran from that date until 14 May 2018.[31] This was not disputed by the Applicant.
Does the Applicant suffer a physical, intellectual or psychiatric impairment – s. 94(1)(a) of the Act?
[31] Exhibit 2A, paragraoh 35.
The Respondent has accepted[32] that the Applicant has impairments, and that paragraph 94(1)(a) of the Act was satisfied during the qualification period.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables – s. 94(1)(c) of the Act?
[32] Exhibit 2A, paragraph 41.
Spinal condition and fibromyalgia – Tables 4 and 1.
The Respondent also accepted[33] that the Applicant suffered from “a spinal condition and fibromyalgia and that these conditions were fully diagnosed in the qualification period.” However the Respondent contended[34] that “both conditions were not fully treated and stabilised, as investigations and treatment were continuing well beyond the qualification period.” The Respondent relied upon numerous reports detailed at paragraph 43 of Exhibit 2A, in support of this contention and alternatively submitted that even if the Applicant’s spinal condition was considered fully treated and stabilised, that the Applicant’s own self-report of her spinal function impairment supported a finding of a mild impairment, and a rating of no more than 5 points under Table 4 – Spinal Function.[35]
[33] Exhibit 2A, paragraph 42.
[34] Exhibit 2A, paragraph 43.
[35] Exhibit 2A, paragraph 45.
The Respondent further submitted[36] that even if the Applicant’s fibromyalgia was considered fully treated and stabilised, the Applicant’s own self-report of her ability to perform activities requiring stamina or physical exertion supported a finding of a mild impairment, and a rating of no more than 5 points under Table 1 – Functions requiring Physical Exertion and Stamina.
[36] Exhibit 2A, paragraph 47.
Upper limb function - Table 2.
The Respondent accepted[37] that the “Applicant’s upper limb conditions including osteoarthritis of her hands, tricep enthesopathy of the right elbow and right bilateral shoulder rotator cuff syndrome were fully diagnosed during the qualification period” and said this was supported by evidence referred to in paragraph 49 of Exhibit 2A.
[37] Exhibit 2A, paragraph 49.
However the Respondent contended that “the Applicant’s upper limb conditions were not fully treated and stabilised during the qualification period” and relied on evidence detailed at paragraphs 50 and 51 of Exhibit 2A.
Lower limb function – Table 3.
The Respondent accepted that the Applicant’s osteoarthritis and plantar fasciitis of her feet were fully diagnosed during the qualification period and relied on evidence detailed at paragraph 52 of Exhibit 2A.
However, the Respondent contended that the lower limb conditions were not fully treated and stabilised during the qualification period, and relied on evidence detailed at paragraph 53 of Exhibit 2A.
The Respondent also submitted[38] that there was “no evidence from the Applicant’s treating health professionals in relation to the treatment of the Osteoarthritis for her feet.” The Respondent therefore contended that there was “insufficient evidence for this condition to be regarded as fully treated and stabilised.” The Respondent also contended that the “plantar fasciitis could not be considered fully treated and stabilised as it was improving with physiotherapy after the qualification period.” The Respondent submitted that as a result “the impairments arising from these conditions could not be assigned an impairment rating on the impairment tables.”
[38] Exhibit 2A, paragraph 54.
Mental Health Function – Table 5.
The Respondent submitted[39] that on “1 February 2018, psychologist Ms Frame diagnosed the Applicant with depression and anxiety and noted that she had undergone treatment including CBT and goal setting and motivation strategies”.[40]
[39] Exhibit 2A, paragraph 55.
[40] Exhibit 1, T Documents, T8, p119.
The Respondent submitted[41] that the “Introduction to Table 5 of the Impairment Tables requires the diagnosis of a mental health condition to be made by an appropriately qualified medical practitioner (including a psychiatrist), with evidence from a clinical psychologist (where not made by a psychiatrist).”
[41] Exhibit 2A, parapgraph 56.
The Respondent submitted that the Applicant’s mental health conditions including depression and anxiety were not fully diagnosed as the only diagnosis was that of Ms Frame who was not a clinical psychologist or psychiatrist.
It was on this basis that the Respondent contended[42] that the Applicant’s mental health conditions could not be assigned an impairment rating under the Impairment Tables.
[42] Exhibit 2A, paragraph 58.
Dizziness/vertigo – Table 7
The Respondent submitted[43] that as the “Applicant presented on 29 September 2018 to the QEII Emergency Department with a two-day history of dizziness”[44] this condition was reported after the qualification period and cannot be considered. It was submitted by the Respondent that it was difficult to determine which Table might be relevant as it depended on the nature of the impairment.
[43] Exhibit 2A, paragraph 59.
[44] Exhibit 1, T Documents, T2, p36.
Heart condition Table 1
The Respondent also submitted that on “9 January 2019 the Applicant underwent an echocardiogram which identified a dilated left atrium”[45] after the qualification period, and that this condition cannot be considered. It is likely to be assessed under Table 1, depending on the impairment
[45] Exhibit 1, T Documents, T2, pp39 – 42.
Overall impairment rating
The Respondent contended[46] that the Applicant’s overall impairment rating for the impairment arising from fully diagnosed, fully treated and fully stabilised conditions is nil points, and therefore she does not satisfy section 94(1)(b) of the Act.
[46] Exhibit 2A paragraph 61.
Continuing inability to work – section 94(1)(c) of the Act.
The Respondent further submitted[47] that should the Tribunal find that the Applicant had 20 points or more under the Impairment Tables it would be necessary to consider whether or not the Applicant had a “continuing inability to work”.
[47] Exhibit 2A paragraphs 62 – 65.
The Respondent submitted that the Applicant did not have a “continuing inability to work” as defined in subsections 94(2) and 94(5) of the Act.
The Respondent referred the Tribunal to the definition of the term “continuing inability to work” in section 94(2) of the Act which states:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) – or the person is a reviewed 2008 – 2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C) and the program of support was wholly or partly funded by the Commonwealth; and
(a) in all cases – the impairment is of itself sufficient to prevent the person from doing any work 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.
Participation in a Program of Support
The Respondent submitted[48] that the Applicant does not have a “severe impairment” as she does not have an impairment “of which 20 points or more are under a single Impairment Table” as required by section 94(3B) of the Act. In this circumstance, the Applicant must have actively participated in a program of support within the meaning of section 94(3C) prior to the day before lodging her claim for DSP in accordance with the POS Determination.
[48] Exhibit 2A, paragraph 67.
The Respondent also contended that the Applicant has a work capacity of greater than 15 hours per week and relied on the findings of the JCA completed on 27 August 2018, that the Applicant had a baseline work capacity of 15 – 22 hours per week and a capacity for work within 2 years with appropriate interventions of 23 – 29 hours per week.[49]
[49] Exhibit 1 , T Documents, T23, pp155 – 167.
The Respondent contended[50] that the evidence did not support a finding that the Applicant’s impairments, from fully diagnosed, treated and stabilised medical conditions, would of themselves prevent her from undertaking work of at least 15 hours per week within the next 2 years. Further there was no evidence to support a finding that the Applicant’s impairments resulting from fully diagnosed treated and stabilised medical conditions would of themselves, prevent her from undertaking a training activity within the next 2 years or that if she was able to undertake a training activity, such activity would be unlikely to enable her to work within 2 years. The Respondent further contended that the Applicant did not satisfy paragraphs 94 (2)(a) and 94 (2)(b) of the Act and did not have a “continuing inability to work” during the qualification period.
[50] Exhibit 2A, paragraphs 76 – 78.
SUBMISSIONS – APPLICANT
The Applicant was not represented at the hearing. When asked if she had attended a Program of Support, after some clarification, the Applicant agreed that she had not done so during the three years leading up to her application.
The Applicant provided a written statement to the Tribunal together with the listed exhibits 3 – 6, and the Tribunal has had regard for this material.
The Applicant recounted that she had been involved in what appears to have been a quite serious hit and run motor vehicle accident when her car was T-boned on 5 September 2018, and she suffered whiplash and some memory loss. She was also involved in a further motor vehicle accident on 11 March 2019.
The Applicant recounted her personal history, and said that her osteoarthritis in the spine was caused by a fall down her parents backstairs when she was very young. She described consultations with chiropractors and physiotherapists, and a diagnosis of depression and anxiety by a clinical psychologist in 2010. The Applicant said that she had been treated for cognitive behavioural therapy by a psychologist Amanda Frame whom she was still seeing regularly. The Applicant also referred to the report[51] of Dr Ian Cheung dated 28 January 2020, a report from the back assessment clinic at PAH Spinal Surgical Services dated 10 May 2018.
[51] Exhibit 4.
The Applicant said that she had seen a heart specialist this year and undergone tests, but had no report from the specialist. She also had a referral of August 2018 to see the Orthopaedic clinic at Logan Hospital. She attended on 7 July 2020, had X-rays and is to have an MRI on 21 July 2020. On 4 August 2020 she is to see an Orthopaedic surgeon who will consider surgery on her left foot as she has a dropped arch arthritis, and bone spurs, and this was why she has had to use crutches and a walker.
The Applicant told the Tribunal that she is continuing to regularly see her psychologist, GP and an exercise physiologist, and is suffering financial stress.
Under cross examination, the Applicant was asked regarding her spinal condition and fibromyalgia, and confirmed she had suffered from these for some time. She was referred to a report from Dr Zia at page 201 of Exhibit 1, the T Documents, which referred to a plan with recommendations. The Applicant said that she had undertaken physiotherapy, reported at pages 27 and 147, and discussed at paragraph 43 on page 17 of the T Documents. The Applicant said that she had trialled Duloxetine, and took it for four days, ceasing because of side effects which she could not recollect but were “pretty bad”. She did not seek, and was not suggested any alternative medication.
The Applicant was asked about the Job Capacity Assessment Report[52], which recorded that she had only had four sessions of physiotherapy. She said she also undertook other physiotherapy treatment at the QE 2 Hospital. The Applicant said that she attended the pain clinic at the PA hospital where she was assessed and referred to a physiotherapist who gave her exercises she found difficult to perform and which resulted in pain. Soon after this she was released back to her local doctor. The Applicant was unable to recall when this was.
[52] Exhibit 1, T Documents, T1, p157.
The Applicant was referred to page 27 of T Documents[53], and said that she started her physiotherapy on 18 September 2018, and completed five sessions with the last being on 19 October 2018.
[53] Exhibit 1, T Documents, T2, AAT1 Decision, p27.
Lower Limb Cross examination
The Applicant said that she was only able to have three cortisone injections in any one limb over a 12 month period, and she was initially not sure if any of them had been after she lodged her claim. She was able to refer the Tribunal to an injection on 12 December 2017, 22 February 2018, and one on 5 June 2018, which was outside the qualification period.
The Applicant observed that it had taken some 23 months to achieve an “expedited” consultation at her hospital and she was not seen until 7 July 2020, some 23 months after the request for an expedited consultation.
The Applicant said that physiotherapy had resulted in some reduction in pain level but not so as to allow her to walk on her foot.
Upper Limb
The Applicant said that she did not receive treatment from anyone for her upper limb conditions, other than at the Main Street Medical Centre from various physiotherapists, and three physiotherapists from Core Physio.
The applicant was not able to point the Tribunal to any evidence that she had received treatment for upper limb conditions around the qualification period. She stated that she never saw a specialist for her upper limb conditions other than the Rheumatologist who checked her range of movement, and at that time she could raise her arms quite high.
Mental Health Condition
The Applicant said that she saw a clinical psychologist prior to January 2013 but has only seen Amanda Frame, a psychologist, since January 2013.
Functional Impairments
The Applicant said she lives with her husband and four children, and that her husband does most of the cooking and cleaning and has been for the last twelve months, and that her condition has deteriorated in the last twelve months.
The Applicant told the Tribunal that she could not list her elbows above shoulder level, but could wash her hair and put clothes on a line. She could only hang things on the line for a short period, and could not sustain overhead activity. She also said she could move her trunk but not sustain it. She could pick up light objects from knee height is she was sitting but it was more difficult if she was standing. She could pick up a pen from a knee high table.
The Applicant said that she started using crutches in about June 2018 as a result of her lower limb conditions. She deteriorated to the point where she presently uses a walking stick around the house and on short walks. She uses a walker equipped with a seat if she goes to the shops.
The Applicant said that walking up an incline or stairs would cause her shortness of breath, but flat walking was fine. Extended walking causes her crippling pain, and she aims to find a happy medium between what is enough exercise and what is too much.
The Applicant confirmed that her condition has continued to deteriorate to this day since the lodgement of her claim.
The Applicant addressed the Tribunal regarding the manner in which her application has been dealt with, and felt that she had not been adequately informed. She said that her health has declined over the last two years and it has affected her emotionally and financially as well.
In his closing submissions, Mr Murphy for the Respondent, repeated and relied upon his opening and written submissions. He submitted that the Applicant’s spinal condition and fibromyalgia are fully diagnosed, but not fully treated, as her treating doctors were still investigating and recommending further treatment after the qualification period. He referred to Damien Nolan’s report transcribed at paragraph 17 of the AAT1 Decision[54] who was at the time awaiting further reports and after receiving them formed the view, as at paragraph 47,[55] that surgery was not an option for treatment. He also referred to the undated report[56] of Kial Hulls noting physiotherapy treatment undertaken in September and October 2018, some four or five months after the qualification period, and that physiotherapy was not helping the spinal condition. Mr Murphy also referred the Tribunal to Dr Cheung’s report Attachment A to Exhibit 2, dated 28 January 2020, which suggested an appointment with a pain physician. Dr Cheung submitted that this might result in significant functional improvement.
[54] Exhibit 1, T Documents, T2, p
[55] Exhibit 1, T Documents, T2, p18.
[56] Exhibit 1, T Documents, T2, p27.
In an alternative submission, Mr Murphy submitted that the correct impairment ratings would be five points under Table 1 and 5 points under Table 4, based on the Applicant’s self reporting to the JCA.
Mr Murphy submitted that the Applicant’s upper limb condition was not fully treated and stabilised. He referred the Tribunal to the 15 May 2018 Rheumatologist report at page 143 of the T Documents, which recommended physiotherapy and said the Applicant would benefit from it. Mr Murphy observed that none of the physiotherapy reports before the Tribunal refer to treatment of the upper limb conditions, and nor is there any evidence of any specialist consultation to determine if surgery is an option.
Regarding the Applicant’s lower limb condition, Mr Murphy submitted that this was not fully treated and stabilised. He referred the Tribunal to the report of Kial Hulls which said that the plantar fasciitis condition was improving with treatment, and noted that this was some five months outside the qualification period.
Mr Murphy also referred to the Tribunal to the Applicant’s evidence which was that the cortisone injections occurred in February June and December 2018. He continued that treatments were ongoing beyond the qualification period and were yet to be fully investigated given that specialist consultation did not occur until July 2020.
Mental Health
Mr Murphy also submitted that the introduction to Table 5 at page 66 of the T Documents requires an appropriately qualified medical practitioner which is a psychiatrist or a clinical psychologist, and said that Exhibit 7 shows that Amanda Frame is a registered psychologist and therefore the condition is not fully diagnosed, treated or stabilised.
Dizziness /Vertigo/Heart condition
Mr Murphy submitted that evidence relating to these conditions comes well after the qualification period.
Mr Murphy also submitted that for the purposes of section94(1)(c) the Respondent contends that the Applicant has not participated in a Program of Support for 18 months in the 36 months prior to the claim. A 20 point impairment rating is required under a single table for that requirement not to apply.
It was further submitted that the Applicant has a work capacity of more than 15 hours per week, relying on the report of the ESA at T16,[57] and the JCA at T23,[58] both of which noted that her work capacity within 2 years with intervention to be 23-29 hours per week.
[57] Exhibit 1. T Documents, T16, p 134.
[58] Exhibit 1, T Documents, T23, p155.
Mr Murphy submitted that where an Applicant’s condition deteriorates after the qualification period that requires a new claim, and that this point was addressed at paragraphs 36-40 of Exhibits 2 and 2A.
Mr Murphy’s final submission was that there was no impairment rating of 20 points and no continuing inability to work and therefore the Applicant does not satisfy sections 94(1)(b) and (c) of the Act.
In reply, the Applicant said that she has been told this year that her work capacity is now under 15 hours per week.
CONSIDERATION
The Tribunal finds that the Applicant lodged her application for DSP on 12 February 2018, and that the qualification period ran from that date until 14 May 2018.
The Respondent has accepted that some of the Applicant’s conditions, being spinal condition and fibromyalgia[59], upper limb function[60] lower limb function[61] were fully diagnosed during the qualification period.
[59] Exhibit 2, paragraph 42.
[60] Exhibit 2, paragraph 49.
[61] Exhibit 2 paragraph 52.
Having regard to the evidence before the Tribunal, and the submissions of both parties, the Tribunal finds that the Applicant suffered physical, intellectual or psychiatric impairments during the qualification period, in respect of those three conditions, and that section 94(1)(a) of the Act was satisfied during the qualification period.
As to the question whether the Applicant’s conditions resulted in impairments which attracted 20 points or more under the Impairment Tables, and therefore satisfied section 94(1)(b) of the Act, the Tribunal has considered each of the Applicant’s conditions, as is required by the definition of impairment.
The Determination defines “impairment” thus:
“impairment means a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”[62]
[62] Section 3 of the Determination.
Spinal function and Fibromyalgia
During the qualification period, on 19 March 2018, Dr Bathini[63] referred the Applicant for five sessions of physiotherapy, however these were not conducted during the qualification period.
[63] Exhibit 1, T Documents, T11 p 25.
After the qualification period, on 15 May 2018, Dr Terrill advised[64] the Applicant of the benefits of weight loss, CBT, and suggested the Applicant’s General Practitioner trial Duloxetine.
[64] Exhibit 1, T Documents, T17, p 143.
Also after the qualification period, on 18 May 2018, Dr Bathini diagnosed the Applicant with Fibromyalgia with treatment being medication and physiotherapy.[65]
[65] Exhibit 1, T Documents, T18, p145.
Also after the qualification period, on 31 May 2018, Mr Nolan of the PA spinal clinic considered[66] the Applicant unlikely to be a candidate for spinal surgery and decided to review the Applicant in six months time.
[66] Exhibit 1, T Documents, T19, p 147.
Also after the qualification period, the JCA noted[67] that the Applicant self-reported that she had not seen a pain specialist in relation to either condition.
[67] Exhibit 1, T Documents, T23, pp157, 161.
Also after the qualification period on or after 29 October 2019, the Applicant’s General Practitioner diagnosed the Applicant[68] with severe lumbar spinal stenosis, and listed past, current and planned treatment as HCLA injections, physiotherapy, and analgesia.
[68] Exhibit 1,T Documents, T 28, pp 178,179.
Also after the qualification period, Mr Nolan confirmed his earlier assessment that the Applicant was not a candidate for spinal surgery, and discharged her from the service back to the care of Dr Bathini.[69]
[69] Exhibit 1, T Documents, T2, p28.
Most recently, and again outside the qualification period orthopaedic surgeon Dr Cheung reported that surgery had little to offer the Applicant, but suggested a referral to a musculoskeletal or pain physician.[70]
[70] Attachment A to Exhibit 2.
In regard to the Applicant’s spinal condition and fibromyalgia, the Tribunal accepts that these conditions were still under medical investigation after the end of the qualification period, and therefore do not satisfy section 94(1)(b) of the Act, and no rating can be assigned in respect of these conditions.
Upper limb function
Outside the qualification period, Rheumatologist Mr Terril reported that the Applicant would benefit from physiotherapy and requested the Applicant’s GP to arrange this.[71] There is no evidence that this occurred during the qualification period.
[71] Exhibit 1, T Documents, T17, p143.
Also outside the qualification period, on 18 May 2018, Dr Bathini reported future treatment is now analgesia and physiotherapy.[72]
[72] Exhibit 1, T Documents, T18, p145.
The report of physiotherapist[73] made no mention of the Applicant presenting or being treated for any upper limb condition.
[73] Exhibit 1, T Documents, T2, p 27.
The Tribunal finds that this evidence establishes that the Applicant’s upper limb function was not fully treated and stabilised during the qualification period, and therefore does not satisfy section 94(1)(b) of the Act, and no rating can be assigned in respect of this condition.
Lower limb function
The Applicant gave evidence that she received a cortisone injection in June 2018, which is after the end of the qualification period. The evidence of physiotherapy shows that the Applicant underwent treatment between 18 September 2018 and 19 October 2018 in respect of this condition. This period falls well outside the qualification period. The Tribunal accepts this evidence and finds that the Applicant’s lower limb function was not fully treated and stabilised during the qualification period. Accordingly, section 94(1)(b) of the Act is not satisfied, an no rating can be assigned in respect of this condition.
Mental health function
The Tribunal notes from Exhibit 7 that the Applicant was treated by Mrs Amanda Frame, who is a psychologist, but not a clinical psychologist or a psychiatrist as is required by Table 5 in order to diagnose a mental health condition.
The Tribunal has no evidence as to the Applicant’s state of mental health from a clinical psychologist or a psychiatrist, and accordingly the Tribunal is unable to find that the Applicant’s mental health condition has been fully diagnosed. Section 94(1)(a) of the Act is therefore not satisfied, and it is not possible to assign a rating under Table 5 in respect of this condition.
Dizziness / vertigo / heart condition.
These conditions were not reported during the qualification period, and therefore cannot be considered, and no impairment rating may be assigned in respect of any of them.
The Tribunal therefore finds that the Applicant’s overall impairment arising from fully diagnosed, fully treated, and fully stabilised conditions is nil points, and therefore she does not satisfy section94(1)(b) of the Act.
As the requirements of section 94(1) of the Act are cumulative, and the Applicant does not satisfy section 94(1)(b), it is unnecessary to consider section 94(1)(c).
Accordingly, the decision under review is affirmed.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.................................[SGD].......................................
Associate
Dated: 29 July 2020
Date of hearing: 17 July 2020 Applicant: By telephone Solicitors for the Respondent: Services Australia
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