Taranto and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

[2010] AATA 971

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 971

ADMINISTRATIVE APPEALS TRIBUNAL      )     No 2010/0733

)          

GENERAL ADMINISTRATIVE DIVISION		)
Re		KERRI TARANTO

Applicant

And SECRETARY, DEPARTMENT OF FAMILIES, HOUSING, COMMUNITY SERVICES AND INDIGENOUS AFFAIRS

Respondent

DECISION

Tribunal Professor RM Creyke, Senior Member

Date 03 December 2010

PlaceCanberra

Decision  The decision under review to cancel Ms Taranto’s disability support pension, is affirmed.

.............................[sgd]........................

Professor RM Creyke, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation of pension – whether applicant had physical, intellectual or psychological impairment – whether impairment rating of 20 points or more – applicant unable to provide evidence to satisfy the Tribunal that impairment rating more than 20 points – decision under review affirmed

Social Security Act 1991 (Cth) s 94

REASONS FOR DECISION

03 December 2010

Professor RM Creyke, Senior Member

1.      Ms Kerri Taranto suffers from a number of injuries, principally a chronic back condition. She was in receipt of a disability support pension from 2003. This pension was cancelled on 30 October 2009.

2.      That decision was affirmed on review by an authorised review officer on 7 December 2009. On 30 October 2009 Ms Taranto’s pension was restored, pending appeal to the Social Security Appeals Tribunal. On 19 February 2010 the Social Security Appeals Tribunal affirmed the decision, and Ms Taranto's pension was again cancelled.

3.      On 23 February 2010, Ms Taranto appealed to the Tribunal. On 5 March 2010 Ms Taranto applied for an order to stay the implementation of the decision to cease payment of disability support pension. On 11 March, with the agreement of the Department, the Tribunal reimposed a stay order. The Department warned Ms Taranto that if she was unsuccessful at the Tribunal, she would be incurring a further debt.

4.      At the first preliminary conference at the Tribunal on 23 April 2010, Ms Taranto was represented by a friend. Ms Taranto was advised to obtain further medical reports or evidence to support her claim and to obtain evidence from witnesses indicating how the impairment affected her day-to-day life.

5.      Ms Taranto was also advised that the second preliminary conference would be in the week beginning the 9 August 2010. Ms Taranto indicated her awareness of the second conference in a letter to Centrelink on 3 June 2010.

6.      The second preliminary conference on 10 August 2010 was aborted as Ms Taranto did not appear. A telephone direction hearing was arranged for 23 August 2010 to discuss her non-appearance. Ms Taranto again did not participate despite notification. At a hearing on 1 October 2010 to discuss the stay application, Ms Taranto again did not appear and the stay order was revoked.

7.      On 19 October 2010, Ms Taranto requested reinstatement of the stay order. On 10 November 2010, at a reinstatement hearing, Ms Taranto said she had been told she did not have to appear at the earlier conference or the hearing. Nonetheless, the Tribunal was satisfied that Ms Taranto had been notified that she was required to appear. The Tribunal affirmed the revocation of the stay order.

8.      The substantive application to the Tribunal was heard on 23 November 2010. Ms Taranto appeared in person with the support of a friend, Mr Peter Olive, by telephone.

Legislation

9. The qualifications for a disability support pension are set out in section 94 of the Social Security Act 1991 (Cth) (Act). Broadly these are, as relevant, that the applicant has a physical, intellectual or psychiatric impairment which is fully diagnosed, treated and stabilised; that the condition results in an impairment rating of at least 20 points; and the impairment results in an inability to work (section 94(1)). An impairment rating is measured using the Tables for the Assessment of Work-Related Impairment for Disability Support Pension (Impairment Tables). The Impairment Tables are authorised by section 23(1) and are found in Schedule 1B of the Act.

10.     The tests for 'continuing inability to work' are set out in section 94(2):

The person has a continuing inability to work because of an impairment if either:

(a) 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) 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.

11.     A 'training activity' includes 'education'.

12.     ‘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.

13.     Table 20 - Miscellaneous - covers chronic pain including chronic fatigue. The criteria, as relevant, are listed as follows:

Rating           Criteria

Nil                  Minor symptoms which are easily tolerated and have no appreciable   effect on ability to work.

TenMild to moderate symptoms which are irritating or unpleasant but which rarely prevent completion of any activity. Symptoms may cause loss of efficiency in daily activities but minimal interference performing or persisting with work-related tasks. There is minimal effect/impact on work attendance.

FifteenModerate to severe symptoms which are more distressing but prevent few everyday activities. Self-care is unaffected and independence is retained. Symptoms may have mild to moderate impact on ability to perform or persist with work-related tasks and/or attend work. Full-time work would still be possible.

TwentyMore severe symptoms with a decreased ability/efficiency to carry out many everyday activities. Most daily activities can be completed with some difficulty. Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue. Symptoms cause significant interference with ability to perform or persist with work-related tasks. Symptoms may cause prolonged absences from work.

An alternative table was Table 5 - Spinal Function. Table 5.1 provides the following criteria, as relevant.

Rating           Criteria

Nil                  Normal or nearly normal range of movement

Five               Loss of quarter of normal range of movement.

Ten                Loss of half of normal range of movement and frequent/constant neck   pain or loss of three quarter of normal range of movement with   infrequent neck pain

Twenty           Loss of three-quarters of normal range of movement and constant neck   pain.

Issues

14.     The issues are whether Ms Taranto has:

·A physical, intellectual or psychological impairment which was fully diagnosed, treated and stabilised; and

·An impairment rating of 20 points or more; and

·A continuing inability to work.

Background

15.     In 1983 a horse Ms Taranto was riding in the course of employment fell on her, causing an injury to her thoraco lumbar-sacral spine. Ms Taranto was then in her early 20s and the accident resulted in her being unable to continue her riding work. The prognosis was that the condition would gradually deteriorate and cause increased impairment in later life.

16.     There was no conservative treatment for the condition and Ms Taranto declined surgery. However, with sustained chiropractic treatment she experienced good results and was able to return to a relatively normal life.

17.     Ms Taranto retrained and was employed in the landscape/horticultural industry. The day-to-day tasks involved in working in a plant nursery exacerbated her back problems although for a time she persisted with the work, managing her pain with exercise and remedial massage.

18.     In 1999, Ms Taranto leant across a bath to turn off a tap and re-exacerbated her lumbar-sacro spinal problem. The incident led to hospitalisation for a fortnight. Following a cortisone injection she was released from hospital but the pain continued and she now has permanent damage to nerves resulting in pain and muscle atrophy in her thigh.

19.     In 2003, Ms Taranto successfully applied for a disability support pension. She was in receipt of that pension from 20 March 2003 until 30 October 2009, with one break in 2006 when she was out of Australia for over thirteen weeks. Her pension was cancelled following a review of her eligibility by Centrelink in February 2009.

20.     Ms Taranto also has other medical problems and injuries. While in the United States of America in 2006, Ms Taranto was hit by a motor car leading to a permanently damaged elbow. In September 2008 she was admitted to hospital in Canberra in severe pain after again being hit by a car. Following a dizzy-spell while walking in February 2009, Ms Taranto broke her hand in a fall.

21.     In general, Ms Taranto manages her pain by anti-inflammatory medicine, remedial massage, acupuncture, and a low-impact exercise regime to promote cardio-vascular health. She exercises, subject to her condition on the day, in one or more forms of swimming, walking or cycling. She has no car and her major form of transport is by bicycle. She also, as needed, wears a custom designed brace on her hand, which she says is 75 per cent restricted in function, and uses a heat pack in winter.

22.     Ms Taranto claims she has developed permanent ligament damage in her right ankle due to her gait and added pressure on her ankle. She wears orthotically designed footwear. She says she also suffers bouts of chronic fatigue syndrome and her injuries, coupled with that condition, cause her to be fatigued on a regular basis.

23.     In her statement for the purposes of the Tribunal hearing, Ms Taranto said her back condition results in the following:

·A decreased ability/efficiency to undertake many everyday activities;

·Most daily activities can be completed with some difficulty;

·Symptoms may prevent or lead to avoidance of some daily tasks and simple tasks will usually aggravate symptoms of fatigue;

·Symptoms cause significant interference with ability to perform or persist with work-related tasks and may cause prolonged absences from work.

24.     She claims that she also suffers:

A loss of normal range of movements as well as back pain or referred pain:

·   with most physical activities

·   with standing for about 15 minutes

·   with sitting or driving for about 30 minutes.

25.     She says the injury to her lower limbs and her ankle cause her:

Demonstrable loss of strength, mobility, balance, co-ordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling.

26.     She claims also to have suffered ‘permanent damage to nerve endings and atrophy of muscle in thigh because of cortisone treatment for intolerable pain’.

27.     Ms Taranto says her upper limb (hand) problem causes:

Demonstrable evidence of loss of strength, mobility, co-ordination, dexterity and/or sensation of her dominant upper limb causing significant interference with hand function or manual handling.

28.     However, she acknowledged that her hand condition is likely to improve over the next two years. That is the only one of her conditions which is improving. She also suffers migraine headaches about every ten days and experiences dizzy spells.

29.     In summary, Ms Taranto says each of her conditions contributes to her continuing inability to work. She said this inability was indicated by the fact she cannot lift saucepans from the stove, tie her shoelaces without putting her foot up and even then the limited bending causes pain. She cannot carry a washing basket of clothes and clean certain areas, especially the bath. Any type of bending activity she claims is impossible. She cannot do up buttons easily since she broke her hand.

30.     Ms Taranto said she has severe financial problems, particularly since the cessation of her disability support pension. She is no stranger to financial hardship having, for a period of ten years, been homeless. However, she is in accommodation at present, although she is in debt.

31.     She enrolled in a course at University in 2009 for full-time study but says she only completed 24 units of the 30 units she was enrolled in and only passed 50 per cent of her subjects. She said she found the course very taxing. In 2010 she enrolled in a full-time load of 48 units, but says she only completed about 70 per cent of her courses.  In the first semester of 2010 she said she failed one subject. She says she is not coping and will be reducing her study load in 2011. At the hearing she said that the face-to-face class hours in second semester 2010 were 5 hours and in first semester she said she did 8 hours face to face. She believed she would need to study for another 18 months in order to complete her degree.

32.     Nonetheless, Ms Taranto says (and the Tribunal agrees) that she is taking positive steps to make a future for herself and to provide a more worthwhile service to the wider community, and to re-enter the workforce. She believes that having a degree is pivotal to that end and that this will mean she is more employable despite her conditions.

Medical evidence and job capacity assessment

33.     Ms Taranto submitted a Treating Doctor's Report by Dr Mark Robinson of Phillip Medical and Dental Centre dated 14 July 2009. He diagnosed her back condition as 'sacro iliac joint pain left side', with date of onset being 1983. He noted that the condition was 'chronic' and was being managed by long-term chiropractic treatment, anti-inflammatories, an exercise program, lap swimming, and some treatment from a spinal physician. In his opinion the effect was to produce a long term work disability which would continue for more than 2 years. He did not provide details of the impact on specific aspects of Ms Taranto's functioning except to say that they would have a long term effect on her ability to work.

34. Ms Taranto was treated by a physician, Dr David McGrath, who last saw Ms Taranto in March 2009. Dr McGrath has provided a statement that unfortunately he has destroyed the original form which he provided for the Medical Review (SA 012 R. 0607).

35.     In relation to the injury to her hand, a report from Dr Charles Hoy, radiologist, dated 22 May 2009, notes that Ms Taranto fractured her left trapezium in February 2009 and at the date of this report, the fracture had still not united, and resulted in intermittent pain. Ms Taranto needed to use a prosthesis, namely, a thermoplastic splint, intermittently, and was receiving physiotherapy for the condition.

36.     As at July 2009, Dr Robinson noted that Ms Taranto was awaiting a review of her hand condition by a Dr C Roberts. No report from Dr Roberts was provided to the Tribunal. The impact of the injury was an 'additional disability due to fracture'. Dr Robinson also noted that Ms Taranto had had a knee reconstruction in 1989 and a cholecystectomy in 2007.

37.     A Job Capacity Assessment report by a psychologist Michelle Snelling was conducted on 1 September 2009. The report accepted that Ms Taranto was suffering from chronic back pain which was fully diagnosed, treated and stabilised and was likely to persist for more than two years. The impairment rating for this condition was 15 points under Table 20 which related to her chronic pain including fatigue. The impairment rating was specifically said to reflect the combined impact of both lumbar spine and lower limb pain and range of motion limitations. The report said that Ms Taranto’s current and future work capacity for the next two years was limited to 15 - 22 hours per week. The report noted that her fractured left trapezium bone had not been fully diagnosed, treated and stabilised and accordingly no impairment rating was assigned.

38.     Ms Taranto attempted to obtain another medical report from Dr Robert Allan on 3 June 2010 but he only provided a medical certificate stating that, as he was not her treating doctor, he was 'not in a position to assist'. Ms Taranto said in evidence that at that time she did not have a treating doctor. However, at the hearing she informed the Tribunal that she had been advised of the name of a medical centre which she intended to approach for more regular treatment. The Tribunal encouraged her to seek that assistance should she reapply for disability support pension.

Consideration

39. There is no question that Ms Taranto has a physical, intellectual or psychiatric impairment. She suffers chronic pain in relation to her lumbar spine and left knee which caused her to be eligible for a disability support pension in 2003. She has since experienced a number of other medical conditions including an injury to her hand, migraines and chronic fatigue syndrome. She meets the criterion in section 94(1)(a) of the Act.

40.     Ms Taranto was allocated an impairment rating of 15 points under Table 20 of the Impairment Tables. At the hearing Ms Taranto objected to the validity of that assessment. She claimed it was undertaken by the Job Capacity Assessor who was a psychologist and a psychologist's opinion should not override that of a medical practitioner. Ms Taranto said only Dr Robinson's report should be taken into account.

41.     The Tribunal finds, however, that there is nothing unlawful about Centrelink's method of obtaining evidence for the purpose of measuring the level of impairment. Centrelink’s forms for this purpose require that the treating doctor provides clinical details of the patient's medical condition(s) and indicates the degree to which those conditions impact on functioning; while a job capacity assessor provides an impairment rating. A doctor's expertise does not extend to assessment of job capacity and the doctor is, therefore, not required to provide an impairment rating. That is the task of a Job Capacity Assessor who is trained to provide that assessment.

42.     The psychologist's report is not being given precedence over that of a medical practitioner. Each of the specialists is asked to provide a report, within their discrete area of expertise, on the impact of the person's medical conditions on different aspects of the person's functioning. The two are complementary rather than one overriding the other. The complementary nature of these functions is demonstrated by the report of the Job Capacity Assessor which accepted the clinical information provided by Dr Robinson and then assigned an impairment rating based on that evidence.

43.     Impairment rating. The explanatory notes to the Impairment Tables states:

In general, pain or fatigue should be assessed in terms of the underlying medical condition which causes it. For example, Table 5 should be used for spinal pathology. However, where the assessor is of the opinion that the Tables underestimate the level of disability because of the presence of chronic entrenched pain, Table 20 can be used to assign a rating instead of the Table(s) that otherwise would be used to assess the loss of function to which the pain relates.  

44.     The instruction as to choice of Table 20 is that:

Assessors must use their judgment and be convinced that pain or fatigue is a significant factor contributing towards the person's overall functional impairment. Medical reports and the person's history should consistently indicate the presence of chronic entrenched pain or fatigue.

45.     The Tribunal notes that Table 20 was adopted under this approach in relation to the assessment of Ms Taranto's condition. The Tribunal considers that Ms Taranto's evidence to the Tribunal, and the report of Dr Robinson do not suggest that she is suffering the loss of range of movement required for the ratings above Nil in Table 5.1. Equally the chronic pain Ms Taranto suffers is, on the evidence, the most significant factor affecting her functioning. So for the Job Capacity Assessor to have assessed Ms Taranto under Table 20, rather than Table 5, was the correct and more beneficial approach to adopt.

46.     The Job Capacity Assessor accepted that, in combination, the chronic pain due to Ms Taranto's lumbar spine and left knee conditions was fully diagnosed, treated and stabilised and was likely to persist for more than 2 years. As a consequence the condition was permanent. However, the rating assigned was only 15 points.

47.     No rating was provided for Ms Taranto's hand condition. Dr Robinson had noted in his 14 July 2009 report that a further review by a Dr Roberts was contemplated and that the fracture which occurred in February 2009 was continuing to heal. Although Dr Robinson said the condition was likely to persist for more than 2 years, he noted that the pain was intermittent and would fluctuate. Accordingly, the Job Capacity Assessor found that the condition, although diagnosed, had not been fully treated and stabilised. In the absence of this additional information the Tribunal considers it was reasonable that no assignment of an impairment rating was undertaken for that condition.

48.     The consequence is that the overall impairment rating assigned to Ms Taranto's conditions did not meet the minimum threshold of 20 points (section 94(1)(b)). Ms Taranto contended that the rating was deficient since she says most daily activities are carried out with some difficulty; she avoids some daily tasks; and simple tasks aggravate symptoms of fatigue. She provided examples of the impact of her conditions. Ms Taranto also objected to the conclusion by the Job Capacity Assessor and the Social Security Appeals Tribunal that if Ms Taranto was capable of undertaking a range of physical activities such as cycling, bush walking and swimming, her conditions were not significantly restricting of her being able to function relatively normally. According to Ms Taranto the conclusion that she could undertake all those physical activities daily failed to take account of the days on which the pain prevented her from undertaking such activities.

49.     The difficulty for the Tribunal is that Ms Taranto's opinion is not an expert opinion and is inevitably perceived as being tainted by self-interest. Accordingly, her opinion needs to be supported by a further medical opinion and job capacity report. Although the Tribunal is prepared to accept that there are days on which Ms Taranto is unable to be as physically active as those reports indicated, further evidence of these restrictions is required.

50. Unfortunately for Ms Taranto, Dr Allan refused to provide any opinion and Ms Taranto does not have an alternative job capacity assessment on which to rely. In such circumstances, the Tribunal has no option but to accept the evidence which is available and that evidence does not assist Ms Taranto to meet the minimum impairment threshold. That is sufficient to conclude this matter. As Ms Taranto does not meet one of the essential criteria listed in section 94 she is not eligible for a disability support pension and the decision under review must be affirmed.

51.     Inability to work. In view of the evidence provided to the Tribunal about Ms Taranto's ability to work, the Tribunal will address that criterion also. The Job Capacity Assessor found that Ms Taranto was capable of undertaking light, less skilled work. Ms Taranto had provided evidence of her previous employment in a landscape architect and design office, and a plant nursery. She also has experience in waitressing, bar work and console operation on a casual basis. Ms Taranto obtained her Higher School Certificate, has qualifications in Applied Science (Horticulture) and has been enrolled in a Bachelor of Arts degree since 2009 which she is clearly capable of completing.

52.     The Job Capacity Assessor conceded that without intervention Ms Taranto's future capacity for work within the two years after the assessment was limited to 15-22 hours per week, although with intervention the hours of work could increase to 23-29 hours per week, particularly if her hand condition continued to improve. In the Job Capacity Assessor’s opinion, Ms Taranto would benefit from job search skills training, but to date Ms Taranto has not accessed such assistance.

53.     According to that assessment, Ms Taranto is capable of working, even without intervention for above the minimum number (15) of hours per week in light less skilled work. That assessment takes account of her skills, qualifications, work history, the reports of Dr Robinson and of the Job Capacity Assessor, as well as Ms Taranto's evidence. That is, her impairment is of itself not sufficient to prevent her from doing any work independently of a program of support within the next two years (section 94(5)(a) - definition of 'work').

54.     Alternatively, Ms Taranto's impairment 'is of itself, not sufficient to prevent her from undertaking a training activity during the next two years' (section 94(2)(b)). Ms Taranto gave evidence that in first semester 2010 she undertook 8 hours of face-to-face classes in her degree course, and in second semester that decreased to about 5 hours a week. Given the accepted ratio of 2 hours preparation for each hour of lectures, the study required amounts to between 15 to 24 hours week (section 94(5)(a) - definition of 'training activity').

55. As a consequence Ms Taranto does not have a continuing inability to work under either arms of section 94(2) of the Act. Accordingly, the decision under review to uphold the revocation of Ms Taranto's disability support pension is affirmed.

I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Professor R Creyke, Senior Member.

Signed: .....................[sgd].................................
  C. Baillie, Associate

Date of Hearing  23 November 2010
Date of Decision  03 December 2010

Solicitor for the Applicant               Self represented

Solicitor for the Respondent          Ms Keely Horan

Centrelink Advocacy Branch