St Clair; Secretary, Department of Social Services and

St Clair; Secretary, Department of Social Services and [2016] AATA 640 (26 August 2016)

Division

GENERAL DIVISION

File Number

2015/0260

Re

Secretary, Department of Social Services

APPLICANT

And

Darryl St Clair

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 26 August 2016

Place Adelaide
The decision under review is set aside and is substituted with a decision that the respondent does not satisfy subsection 94(1)(b) of the Social Security Act 1991 during the Claim Period and is not qualified to receive the disability support pension.

......................[Sgd].........................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) – Impairment Tables considered – DSP claim rejected – on review by Social Security Appeals Tribunal (SSAT), decision of Authorised Review Officer set aside – SSAT found that respondent qualified for DSP – reports of medical practitioners and Job Capacity Assessors analysed – decision under review set aside.
LEGISLATION
Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42 Schedule 2 clauses 3 and 4
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Guidelines to the Rules for Applying the Impairment Tables

REASONS FOR DECISION
Senior Member R W Dunne
26 August 2016
INTRODUCTION

Darryl St Clair is the respondent in this proceeding. He lodged a claim for disability support pension (“DSP”) on 17 June 2013.
The original decision-maker rejected the respondent’s claim and an authorised review officer (“ARO”) affirmed the original decision. On review by the Social Security Appeals Tribunal (“SSAT”) the decision of the ARO was set aside.
The SSAT found that the respondent satisfied all of the qualification criteria in s 94(1) of the Social Security Act 1991 (“Act”) and he qualified for DSP. The applicant (“Centrelink”) applied to this Tribunal for review of the decision of the SSAT.
At the hearing, Centrelink was represented by Mr C Visser (Department of Human Services) and Mr St Clair was represented by Ms M Riley (from the Welfare Rights Centre). The Tribunal received into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, together with the following exhibits:
·copy of applicant’s statement of facts and contentions with annexures;[2]
·copy of medical report of Dr Grantley Tschirn dated 23 July 2015;[3]
·copy of respondent’s statement of facts and contentions with annexures A to E;[4] and
·copy of Centrelink EANS screen for respondent.[5]
[1] Exhibit A1.
[2] Exhibit A2.
[3] Exhibit A3.
[4] Exhibit R2.
[5] Exhibit R2.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Act, is whether Mr St Clair was qualified to receive DSP on the date of his claim, being 17 June 2013, or within 13 weeks thereafter, that is by 16 September 2013 (“Claim Period”).
In respect of the Claim Period, Centrelink accepted that the respondent suffered from the following conditions and therefore satisfied subsection 94(1)(a) of the Act:
(a)a spinal condition; and
(b)chronic obstructive pulmonary disease (“COPD”).
In respect of the Claim Period, Centrelink did not accept that the respondent’s impairments attracted a total impairment rating of at least 20 points under subsection 94(1)(b) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“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 of 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 Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)    the person is under 35 years of age;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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) -- 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).
(3)   In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)    the availability to the person of a training activity; or
(b) the availability to the person of work in the person's locally accessible labour market.
(3A) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need such a program of support provided occasionally; or
(c) is likely to need such a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either;
(i)is funded(wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
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).
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.
…”
Also relevant in this proceeding is s 42 of, and clauses 3 and 4(1) of Schedule 2 to, the Social Security (Administration) Act 1999 (“Administration Act”). Where a person makes a claim for DSP, clause 3 in Schedule 2 provides the general rule for a start date as the day on which the claim is made. Otherwise, a person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim is made, in accordance with clause 4(1) in Schedule 2 to the Administration Act.
Clause 4(1) reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
As already said above, the Claim Period for assessing Mr St Clair’s qualification for DSP for the purpose of this proceeding is the 13 week period from 17 June 2013 to 16 September 2013.
There have been numerous decisions of Tribunals and the Federal Court relating to what is referred to as the Claim Period. In Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs,[6] the Tribunal there made it clear that it can only consider an applicant’s qualification for DSP within the relevant Claim Period. The reasoning in Bobera is consistent with the comments of Justice Gyles of the Federal Court in Re Harris v Secretary, Department of Employment and Workplace Relations,[7] where he stated (at paragraph 1):
“… the applicant’s entitlement to the pension must be considered as at the date of her claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.” (emphasis added)
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILTIY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
[6] [2012] AATA 922.
[7] [2007] FCA 404.
The Impairment Tables were previously set out in Schedule 1B to the Act. The Determination, under s 26(1) of the Act, commenced on 1 January 2012. In the Determination, the Rules for applying the Tables relevantly read:
“6.      Applying the Tables
Assessing functional capacity
(1)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.
Applying the Tables
(2)The 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.
Note:For additional information that must be taken into account in applying the Tables see section 7.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)    the person’s condition causing that impairment is permanent; and
Note:    For permanent see subsection 6(4).
(b)    the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Example:   A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)    the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)    the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)    the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)    the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)    whether there is corroborating evidence of the condition; and
(b)    what treatment or rehabilitation has occurred in relation to the condition; and
(c)    whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised 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 2 years; or
(b)    the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note:For reasonable treatment see subsection 6(7).
Reasonable treatment
(7)For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)    is available at a location reasonably accessible to the person; and
(b)    is at a reasonable cost; and
(c)    can reliably be expected to result in a substantial improvement in functional capacity; and
(d)    is regularly undertaken or performed; and
(e)    has a high success rate; and
(f)     carries a low risk to the person.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a) acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b) chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a) the information provided by the health professionals specified in the relevant Table; and
(b) any additional medical or work capacity information that may be available; and
(c) any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
8 Information that must not be taken into account in applying the Tables
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
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.
9 Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) Where two or more 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.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11 Assigning an impairment rating
(1) In assigning an impairment rating:
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b) a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4) When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
No impairment resulting from a condition
(5) To avoid doubt, where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.”
BACKGROUND FACTS

The material facts in this proceeding are not in dispute and are largely extracted from the statements of facts and contentions of the applicant and respondent.
Mr St Clair is a man, about 60 years of age. He has been struggling with a neck injury and pain since July 2011. He was diagnosed with COPD in 2010. He has not been in full-time employment since 2012. Mr St Clair’s neck injury has been treated by specialist intervention. He has had physiotherapy and he has had steroid injections. He reports that he has limited range of neck movement, and that he is unable to lift/hold items due to numbness/weakness/pins and needles in his hands. The Respiratory Function Laboratory tests reveal that he has moderately severe obstructive impairment. He tires easily and suffers from shortness of breath.
As part of his claim for DSP, the respondent also lodged a “Medical Report – Disability Support Pension” form completed by Dr Koh and signed on 17 June 2013. This report set out that the respondent suffered from one condition, “severe cervical spondylosis with nerve root compression”. A Job Capacity Assessment (“JCA”) was conducted on 20 June 2013 to aid in the assessment of the respondent’s qualification for DSP. The assessor assessed the respondent’s conditions as follows: depression, and a spinal disorder. The assessor considered that only the respondent’s spinal condition was fully diagnosed, fully treated and fully stabilised. She recommended that the impairment arising from the respondent’s spinal condition attracted a rating of 5 points under Table 4 of the Impairment Tables.
On 10 September 2013, the respondent’s claim for DSP was rejected. On 2 December 2013, the respondent submitted another “Medical Report – Disability Support Pension” form completed by Dr Koh. This report noted that the respondent suffered from “moderately severe degeneration of cervical spine” and a condition of “moderately severe chronic obstructive airways disease”, which was described as generally well managed and causing minimal or limited impact on ability to function. On 11 February 2014, a further JCA was undertaken. This assessment also recommended that the impairment arising from the respondent’s spinal condition should be rated at 5 impairment points under Table 4 of the Impairment Tables. On 25 February 2014, the respondent requested a review of the decision to reject his claim for DSP. On 19 July 2014, an ARO reviewed and affirmed the decision under review and on 7 October 2014 the respondent requested a review by the SSAT. On 17 December 2014, the SSAT reviewed and set aside the decision under review, holding that the respondent should be assigned 20 impairment points under Table 1 and also that he had a continuing inability to work. In its decision, the SSAT considered the impairments arising from the respondent’s spinal condition and his respiratory condition. In doing so, it assigned a rating under Table 1 for the combined functional impacts of those conditions. In his reasons, the SSAT Member said:
“17 Ordinarily, a condition affecting exertion and stamina like emphysema would be rated on Table 1 and a condition affecting the spine on Table 4. However, after hearing from Mr St Clair of the pervasive impact on him of the pain resulting from his neck with movement of his neck and arms, Ms Tsoundarou suggested that it might be preferable to assign a single global rating for impairment using Table 1. It was suggested that there was support for this approach in the Guidelines for the use of the Impairment Tables, which I take to be a Centrelink policy document.
18 After the hearing, Ms Tsoundarou provided a submission identifying exactly where this support was to be found. In a section in the Guidelines entitled “Assessing functional impact of pain’, it is suggested that:
Where chronic pain impacts physical exertion and stamina (i.e. results in fatigue symptoms) and this is not adequately assessed by another Table, Table 1-Functions Requiring Physical Exertion and Stamina may need to be considered, while ensuring that the level of impairment is not overstated
19 The guidelines give an example of a person with a spinal condition being assessed on the basis of their chronic pain rather than their spinal function (example 4).
20 I decided that rather than assessing impairment on three tables [Table 1 (stamina and exertion), Table 2 (upper limbs) and Table 4 (spinal function)] M St Clair’s impairment was better assessed, as suggested by Ms Tsoundarou, just on Table 1, because so many of Mr St Clair’s activities were impacted by a combination of shortness of breath and pain from his neck.”
IMPAIRMENT TABLES
The Impairment Tables contain Part 2 – Rules for Applying the Impairment Tables (“the Rules”). The Tables are function-based rather than diagnosis-based and describe functional activities, abilities, symptoms and limitations and are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that result from the person’s condition. A person’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 (subsection 6(1) of the Rules).
An impairment rating can only be assigned if the condition causing the impairment is permanent, that is it is fully diagnosed, fully treated and fully stabilised, and more likely than not, in the light of available evidence, to persist for more than two years (subsection 6(4) of the Rules).
EVIDENCE
Evidence of the respondent
It was the respondent’s evidence that he lived in a rented house with his son. He had five children and four grandchildren. He had previously been in the work force, engaged in seasonal fruit picking and bagging. In March 2011 to January 2012, he was a factory hand with Flexi Glass at Edwardstown before being retrenched. Then he worked part time casual. He had earnings from employment with Flexi Glass. Over two fortnights he had earned $1,300 on 29 June 2012 and $1,000 on 13 July 2012. He had also attended Workskill in July 2012 and been medically exempted until December 2012.
He had received cortisone injections in July, which were not helpful. He had a history of neck symptoms and a few years ago he had a coughing fit. Since then, he had suffered arm pain. He had difficulty sleeping and that had not changed. He was suffering from emphysema and became breathless. He had seen Dr Koh his GP, and also Dr Poonnoose, consultant neuro surgeon at the Flinders Medical Centre. Dr Poonnoose was keen to avoid surgery because this could have a domino effect and result in other surgeries to follow. Mr St Clair said that he would often walk, but walking beyond 80 metres was too hard. Coming to the hearing, he drove to the city and parked and then walked to the hearing room. He suffered headaches often and his back pain was a bit worse now. However, other conditions had not worsened.
Report of Dr Grantley Tschirn, Occupational Physician
Dr Tschirn had provided a work capacity assessment about the respondent. Apart from the spinal condition, he said the respondent suffered from variable shortness of breath. Some days he can barely walk to the front gate, being so short of breath, on good days he can walk approximately a kilometre, but would have several stops. In his report, Dr Tschirn stated that it was not appropriate to use Table 1 to rate the combined impact of the respondent’s conditions, on the basis that:
“…the musculoskeletal conditions are not of a systemic nature ie affecting multiple anatomically distinct areas and body systems.”
He also commented
“…In my view chronic pain arising from localised disease of the neck is adequately assessed per Table 4…”
In his physical examination of the respondent, Dr Tschirn noted
“…neck stiffness and slightly decreased range of movement in right rotation and right lateral flexion with mild reduction and extension of 75 % of expected normal range. He was able to look upwards by extending the neck …he was able to forward flex to just below knee height, there was stiffness.”
CONSIDERATION
Did Mr St Clair have any physical, psychiatric or intellectual impairments and if so as at the date of his claim for DSP (or within 13 weeks of that date) did those impairments attract an impairment rating of at least 20 points under the Impairment Tables?
In this proceeding, Centrelink has accepted that the respondent suffered from the following conditions during the Claim Period and therefore satisfies s 94(1)(a) of the Act;
·a spinal condition; and
·chronic obstructive pulmonary disease.
The respondent’s claim for DSP was initially rejected by Centrelink. On review, the decision of the ARO was set aside. The SSAT found that the respondent satisfied all of the qualification criteria in s 94(1) and qualified for DSP. In its decision, the SSAT was satisfied that the respondent’s spinal condition was fully diagnosed, fully treated and fully stabilised. In relation to the respondent’s chronic obstructive airways disease (or emphysema) the SSAT inferred that the condition was as well managed as it could be and was satisfied that it was fully diagnosed, treated and stabilised. The SSAT found that, ordinarily, a condition affecting exertion and stamina like emphysema would be rated on Table 1 and a condition affecting the spine on Table 4.
However, at the SSAT hearing one of the respondent’s representatives suggested that it might be preferable to assign a single global rating for impairment using Table 1. It was suggested that there was support for this approach in the Guidelines to the Rules for applying the Impairment Tables (Centrelink’s Department of Social Security Law Guidelines at point 3.6.3.05). I was intrigued that the respondent’s representative thought it might be “preferable” to assign a single global rating using Table 1. I noted that, prior to the hearing, the representative had facsimiled to the SSAT Member a copy of the relevant Guidelines. As a result, the SSAT Member said:
“20. I decided that rather than assessing impairment on three tables [Table1 (stamina and exertion), Table 2 (upper limbs) and Table 4 (spinal function)] Mr St Clair’s impairment was better assessed, as suggested by Ms Tsoundarou, just on Table 1, because so many of Mr St Clair’s activities were impacted by a combination of shortness of breath and pain from his neck.”
It was Mr Visser’s contention, for the applicant, that the approach taken by the SSAT was incorrect and that I ought to assess each relevant impairment resulting from a fully diagnosed, fully treated and fully stabilised condition against the Impairment Table specific to the function affected. I must say I agree with the applicant’s contention. In this regard, Part 2 of the Rules apply and s 10 sets out the steps for selecting the applicable Table and assessing impairments. It relevantly reads:
(a)Section 10(1) provides that Table selection is to be made by applying the following steps:
(i)identify the loss of function; then
(ii)refer to the Table related to the function affected; and then
(iii)identify the correct impairment rating.
(b)Sections 10(2) and 10(3) require that the Table specific to the area of function affected is to be applied, and where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
(c)Section 10(4) states that when using more than one Table to assess multiple impairments resulting from a single condition, an impairment rating for the same impairment must not be assigned under more than one Table.
(d)Section 10(5) requires that where two or more conditions cause a common impairment, a single rating should be assigned in relation to that common impairment under a single Table.
Section 6 of the Rules relates to applying the Tables. Section 6(9) deals with how the functional impact of pain is to be assessed. There is no Table dealing specifically with pain. Instead, the following must be considered when assessing pain:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected.
The Guidelines to the Rules for applying the Impairment Tables (contained in the Guide to Social Security Law at point 3.6.3.05) contains guidance on the use of Table 1 as opposed to function-specific tables. It relevantly reads:
Assessing functional impact of pain
….
Chronic pain can be a medical condition and where it has been fully diagnosed, fully treated and fully stabilised, any resulting impairment should be assessed using the Table that is relevant to the function affected.
Chronic pain can also be a symptom of a permanent condition. Where a person experiences chronic pain as a result of a permanent condition, such as rheumatoid arthritis, chronic pain is not a separate diagnosis but rather a symptom of the underlying autoimmune disorder.
…
The following scenarios show how the Tables should be applied when assessing chronic pain to avoid double counting:
oif a person experiences chronic pain as a result of a permanent condition and this pain impacts the person in a particular area of the body such as the upper limbs, the relevant Table should be used to assess the impact of the condition;…
oif a person experiences chronic pain as a result of a permanent condition and this pain impact multiple areas of the body, more than one body area Table may be used to assess the impact of the condition … as long as the overall level of impairment is not overstated/double counted;…
ofor systemic conditions that affect one or more areas resulting in chronic pain (such as rheumatoid arthritis) impacts on activities requiring physical exertion and stamina should be assessed under Table 1- Functions requiring Physical Exertion and Stamina…
Dr Tschirn’s Report
In his report dated 23 July 2015, Dr Tschirn stated that it was not appropriate to use Table 1 to rate the combined impact of the respondent’s conditions, on the basis that “the musculoskeletal conditions are not of a systemic nature ie affecting multiple anatomically distinct areas and body systems”. Dr Tschirn also commented, “in my view chronic pain arising from localised disease of the neck is adequately assessed per Table 4 …”. The applicant contended that the approach adopted by Dr Tschirn is the correct approach for assessing the respondent’s impairments. The respondent suffers from two distinct conditions which should be assessed under the specific Table(s) relevant to the affected function(s) – a respiratory condition which impacts his exertion and stamina, which should be rated under Table 1, and a spinal condition that impacts on the function of his spine and which should be rated under Table 4.
I will proceed to consider the Table 4 condition first.
The Spinal Condition
In his report, Dr Tschirn noted
“neck stiffness and slightly decreased range of movement in right rotation and right lateral flexion with mild reduction and extension of 75% of expected normal range. He was able to look upwards by extending the neck…he was able to forward flex to just below knee height, there was stiffness.”
He concluded that the respondent
“Does not meet any of the criteria for a 20 point impairment. Remained seated for > 30 minutes during interview phase of assessment. Meets criteria 5(1)(a)/(c).”
He considered the correct impairment rating under Table 4 was 5 points.
Dr Tschirn’s assessment is consistent with the findings of the JCA of 20 June 2013 and the JCA of 11 February 2014, both of which recommended a 5 point rating under Impairment Table 4.
It is the applicant’s contention that the respondent’s spinal condition results in a mild functional impairment, and an impairment rating of 5 points under Table 4 is appropriate. I also agree with this contention.
I now consider the Table 1 condition.
The Respiratory Condition
This condition was first mentioned in the medical report completed by Dr Koh on 2 December 2013 and was recorded not as “Condition 2” (which was left blank), but as a condition that was “generally well managed and that cause minimal or limited impact on ability to function”. The reports detailing the respondent’s respiratory condition differ as to his tolerance and capacity. I note that on 25 September 2014,[8] over a year after the Claim Period, the respondent engaged in a 6 minute walk test and managed to walk 550 metres in that time. However, in the SSAT hearing he told the Member that “he experiences shortness of breath and pain walking the 20 metres from his front door to the letterbox.” I note that the introduction to Impairment Table 1 states that “self-report of symptoms alone is insufficient” and that “there must be corroborating evidence of the person’s impairment”. It is apparent that the respondent’s report to the SSAT, on which that tribunal based its decision, is uncorroborated by the available medical evidence which indicates in 2014 a substantially greater capacity than later reported to the SSAT. I also note that Dr Tschirn considers that the respondent has “variable dyspnoea” from established emphysema “expressing itself as quite variable exertional tolerance”. He concludes that a 10 point rating under Table 1 is appropriate for the functional impairment arising from the respiratory condition, and specifically notes again that the respondent “does not meet any of the 20 point criteria”.
[8] Exhibit A2, Annexure 3 Respiratory Function Laboratories test.
SUMMARY
To summarise, based on the extensive report of Dr Tschirn, I am satisfied that the respondent had a combined impairment rating of 15 points under Table 4 and Table 1 of the Impairment Tables during the Claim Period. As such, he does not satisfy s 94(1)(b) of the Act.
In the circumstances, it is not necessary for me to determine whether the respondent has a continuing inability to work.
DECISION
For the above reasons, the decision under review is set aside and is substituted with a decision that the respondent does not satisfy subsection 94(1)(b) of the Act during the Claim Period and is not qualified to receive the DSP.

I certify that the preceding 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
....................[Sgd]....................................................
Administrative Assistant
Dated 26 August 2016

Date(s) of hearing 5 July 2016

Advocate for the Applicant Mr C Visser

Solicitors for the Applicant Department of Human Services

Advocate for the Respondent Ms M Riley

Solicitors for the Respondent Welfare Rights Centre (SA) Inc

[2016] AATA 640

26 August 2016

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Appeal

Procedural Fairness

Division	GENERAL DIVISION
File Number	2015/0260
Re	Secretary, Department of Social Services
APPLICANT
And	Darryl St Clair
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	26 August 2016
Place	Adelaide

Date(s) of hearing	5 July 2016
Advocate for the Applicant	Mr C Visser
Solicitors for the Applicant	Department of Human Services
Advocate for the Respondent	Ms M Riley
Solicitors for the Respondent	Welfare Rights Centre (SA) Inc