Thomson; Secretary, Department of Social Services and (Social services second review)
[2019] AATA 1094
•20 May 2019
Thomson; Secretary, Department of Social Services and (Social services second review) [2019] AATA 1094 (20 May 2019)
Division:GENERAL DIVISION
File Number: 2018/1622
Re:Secretary, Department of Social Services
APPLICANT
AndNatasha Thomson
RESPONDENT
DECISION
Tribunal:Senior Member R Cameron
Senior Member C. J. FurnellDate:20 May 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.........[sgd]...............................................................
Senior Member R Cameron
Catchwords
SOCIAL SECURITY – disability support pension – whether fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under the Impairment Tables – decision affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security Administration Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011Cases
Burns and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 220
Cremer and Secretary, Department of Employment and Workplace Relations [2007] AATA 1356
Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [65]
Hudson and Department of Family and Community Services [2000] AATA 502
Nabasango and Secretary, Department of Social Services (Social services second review) [2019] AATA 120
Pistone: Secretary, Department of Family and Community Services [2003] AATA 375
Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Repatriation Commission v Warren [2008] FCAFC 64 at [78]
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360
Secretary, Department of Social Services v Sziva [2019] FCA 23
Shams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 335
Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56
Wright and Secretary, Department of Social Services [2014] AATA 498Secondary Materials
Guide to Social Security Law, Version 1.253; Department of Social Services; Released 20 March 2019.
Definition of ‘sustain’ in English, English Oxford Living Dictionaries, of ‘task’ in English, English Oxford Living Dictionaries, FOR DECISIONSenior Member R Cameron
Senior Member C. J. Furnell20 May 2019
INTRODUCTION
The Secretary of the Department of Social Services has applied to the General Division of the Tribunal for review of a decision made on 27 February 2018 by the Tribunal’s Social Services and Child Support Division.
Pursuant to that decision the Tribunal set aside an earlier decision by a Centrelink Authorised Review Officer to reject Ms Natasha Thomson’s application for a disability support pension (DSP) and remitted it to the Chief Executive of Centrelink for reconsideration in accordance with a particular direction. The direction was that the matter be reassessed on the basis that Ms Thomson satisfies s 94(1)(a), (b) and (c) of the Social Security Act 1991(the Act). Centrelink is the service agency for the Department of Social Services.
It is that direction which is the decision now under review by the Tribunal.[1] Accordingly, the question in issue in this proceeding is whether Ms Thomson satisfies that section.
[1] Section 179(2) Social Security (Administration) Act 1999.
The Tribunal has decided that she does, for the reasons which follow. Before embarking on those reasons, however, we should mention our appreciation of the submissions made on behalf of the Secretary and by Ms Thomson. We found them to be most helpful.
WHAT IS REQUIRED TO SATISFY THE SECTIONS?
Section 94(1) of the Act is in the following terms:
“(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 Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system…”
There is a temporal aspect to the requirement to satisfy those paragraphs. In particular, that requirement must be considered in light of the circumstances subsisting as at 9 March 2017 and in the 13 week period thereafter, ending on 9 June 2017, the qualifying period (the QP).[2] (This is the result of an application to the facts of certain, rather convoluted, provisions of the Social Security Administration Act 1999, the operation of which is not in dispute in this proceeding.)
[2] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
DOES MS THOMSON HAVE AN IMPAIRMENT?
Ms Thomson contends that she had, in the QP, an impairment, being (or at least resulting from) chronic pelvic pain or, simply, chronic pain.
The Secretary accepted that Ms Thomson had an impairment in the QP and came to accept, in the course of the hearing, that the impairment was (or was at least the result of) chronic pain. On the evidence, discussed further below, the Secretary was right to do so. Accordingly, the issue of whether section 94(1)(a) is satisfied ceased to be in contention.
CAN MS THOMSON’S IMPAIRMENT BE GIVEN A RATING OF 20 POINTS OR MORE?
Attracting an impairment rating
In order to satisfy s 94(1)(b) Ms Thomson’s impairment had to be, in the QP, “of 20 points or more under the Impairment Tables”.
Under s 26 of the Act, an instrument may be made to determine the Impairment Tables and may in addition, determine rules to be complied with in applying the Tables. Such an instrument has been so made and currently applies. It is entitled “Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011” (the Tables).
Under the Tables, in order for Ms Thomson’s impairment to be “of” any points, let alone 20 or more points, it is necessary that it be capable of being assigned an impairment rating.
In this regard, under s 6(3) of the Tables, Ms Thomson’s impairment could only be assigned an impairment rating in relation to her chronic pain condition if:
(a)her chronic pain was “permanent”; and
(b)the impairment resulting from her chronic pain was more likely than not, in light of available evidence, to persist for more than 2 years.
Is Ms Thomson’s chronic pain permanent?
A conclusion that Ms Thomson’s chronic pain was permanent is only available under the Tables after arriving at a positive conclusion in relation to each of four subsidiary questions (s 6(4) of the Tables).
In particular, those questions are directed to ascertaining whether her chronic pain was:
(a)fully diagnosed by an appropriately qualified medical practitioner;
(b)fully treated;
(c)fully stabilised; and
(d)more likely than not, in the light of available evidence, to persist for more than two years.
Is the condition fully diagnosed?
In order for Ms Thomson’s condition to be considered fully diagnosed, the evidence must show that she suffered from the condition in the QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. As Ms Thomson submitted, it is not necessary to show that such a diagnosis was made in the QP.[3]
[3] Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88].
The Secretary submitted that Ms Thomson’s condition was not fully diagnosed. That submission was directed to particular gynaecological conditions (endometriosis and polycystic ovaries). At the hearing of this matter and in her submissions to the Tribunal, however, Ms Thomson did not rely on those conditions. Instead, the condition she relied upon to support her claim to a DSP was chronic pain or chronic pelvic pain.
As to that condition, in a report of 18 September 2018, Dr Price, a consultant obstetrician and gynaecologist, outlined a lengthy history (before, during and after the QP) of Ms Thomson presenting with, and being treated for, pain.
In terms of the position before and during the QP, records reviewed by Dr Price reveal, amongst other things, that:
(a)she presented to her general practitioner with cramping abdominal pain in April 2014;
(b)it was noted that she was suffering pelvic pain when she attended at the Royal Women’s Hospital in January 2015;
(c)she complained of daily pelvic pain when she attended at the emergency department of that hospital in February 2016;
(d)in March 2016 her general practitioner noted her chronic pain;
(e)in May 2016 she was hospitalised with pelvic pain (and then underwent a diagnostic laparoscopy);
(f)in September 2016 she attended the Alfred Hospital complaining of pelvic pain (and was referred to the Mercy hospital and to a Professor Maher in relation to ongoing chronic pain);
(g)in November 2016 she attended Professor Maher in relation to pelvic pain, she attended her general practitioner in November and December 2016 and again in January 2017 in relation to pelvic pain;
(h)she was reviewed at the Alfred Hospital emergency department in March 2017 and in May 2017 because of further pain; and
(i)in May 2017, she was transferred to the Mercy hospital where she was admitted as an in-patient for seven days.
In addition:
(a)In a letter dated 10 March 2016, Professor Maher (a clinical professor at the department of obstetrics and gynaecology at the University of Melbourne) noted that Ms Thomson had had an onset of pelvic pain.
(b)In a letter of support dated 21 March 2017, Ms Thomson’s general practitioner certified that she suffered chronic pain (a certification or diagnosis he repeated in each of June and October 2017).
(c)On 15 March 2017, in a letter from the registrar of the “Endosurgery A Clinic” of the Mercy Hospital for Women, Ms Thomson’s general practitioner was advised that Ms Thomson was “a lady we are following up for chronic pelvic pain”.
(d)A medical record dated 3 March 2017 recorded that Ms Thomson was prescribed a variety of pain medications at the Alfred Hospital, having attended the emergency department where she was described as presenting with “very severe suprapubic abdominal pain”.
(e)A medical record dated 15 May 2017 recorded that Ms Thomson again attended the Alfred Hospital’s emergency department where she was treated with, amongst other things, morphine.
(f)On 22 May 2017, acute or chronic pain was identified as the principal diagnosis with respect to Ms Thomson in a discharge summary from the Mercy Hospital for Women.
(g)On 11 September 2017, under the heading of relevant medical history, chronic pelvic pain was specified in a discharge summary from the emergency department of the Alfred Hospital.
(h)In his 18 September 2018 report, Dr Price noted that in 2016 Ms Thomson had been prescribed “significant amounts of pain relief” and that, in May 2017, her pain medications were increased.
(i)Dr Price also opined that Ms Thomson does “suffer from a symptom of chronic pelvic pain” and that she “has chronic pain as a symptom and a condition”.
(j)In a report of 1 August 2018, in relation to an assessment conducted on 13 June 2018, Dr Ryan, a consultant occupational physician, stated that Ms Thomson‘s medical history indicated that she had been troubled by pelvic pain throughout her teenage years, with symptoms worsening at or around 2013, and that “it is very clear from the medical documentation…that she has a chronic medical condition with a significant pain component”.
In reliance on this evidence, we find that Ms Thomson’s condition is fully diagnosed.
Before passing on to the “fully treated” question, we should mention an evidentiary issue that arose in the course of the hearing but which proved to be unnecessary to resolve.
In a submission of 26 April 2018, made to the Tribunal’s Social Services and Child Support Division, the Secretary sought a stay. That submission contained an admission that Ms Thomson’s pelvic pain condition was fully diagnosed.
Some time was spent discussing the weight to be attributed to this admission. The Secretary contended that it should be accorded little, if any, weight, initially because it had been made in a separate proceeding and later because to do otherwise would be inconsistent with the Tribunal’s role to come to the correct or preferable decision and would, effectively, estop the Secretary from changing its position in a context where both estoppel by conduct and issue estoppel were inapplicable. Had it been necessary to come to a conclusion on the matter, we suspect that we would have accepted the result contended for by the Secretary but without endorsing each aspect of the submission underlying it (and, in any event, it might well be that little weight should have been accorded to the admission on the basis that it was a representation concerning a question of law, mixed fact and law or of opinion). In the end, however, it was not necessary that we consider the matter in any depth. We were able to conclude that Ms Thomson’s condition was fully diagnosed without having to rely on the Secretary’s admission.[4]
Is the condition fully treated?
[4] We appreciate that, due to the inquisitorial nature of the Tribunal’s function, the way that “…parties conduct their cases before the Tribunal does not have the same significance as the way parties conduct adversarial litigation before a court” (see Hong v Minister for Immigration and Border Protection [2019] FCAFC 55 at [65]) and that the general rule that a party is bound by its admissions and concessions does not “automatically” apply in the context of Tribunal proceedings (Repatriation Commission v Warren [2008] FCAFC 64 at [78]).
The Secretary submitted that Ms Thomson’s condition was not fully treated.
In addressing this issue, s 6(5) of the Tables requires that there be a consideration of:
(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.
There was no issue as to the existence of corroborating evidence of Ms Thomson’s chronic pain condition.
Similarly, there was no issue as to the nature of the treatment provided for Ms Thomson’s chronic pain condition. It involved the provision of a significant amount of pain relief. According to Dr Ryan, since at least 2014, a “wide range of various medications and surgical interventions” have been trialled in relation to Ms Thomson.
Dr Ryan did not challenge the appropriateness of the treatment that had been afforded. She stated that it appeared “that all appropriate and reasonable treatment had been undertaken…certainly since 2013/2014” (albeit that the treatment of reproductive conditions was expressed by Dr Ryan to be outside her area of expertise).
Dr Price also did not appear to challenge the appropriateness of the treatment afforded, at least insofar as it was directed to management of Ms Thomson’s pain condition.
Dr Price did, however, opine that the “gold standard treatment’ for the gynaecological condition, endometriosis, had not been provided. This, however, was a condition which Dr Price considered had not been definitively diagnosed and was not, in any event, the condition relied upon by Ms Thomson to support her DSP claim.
Dr Price also opined that Ms Thomson had not been “optimally treated”. Essentially, the complaint made by Dr Price about Ms Thomson’s treatment was not that it was inappropriate to treat chronic pain but that it should have been expanded to encompass treatment designed to investigate and identify the underlying cause of Ms Thomson’s pain.
Dr Price instanced two forms of further treatment that he considered ought to have been undertaken.
Dr Price specified these two forms of treatment in response to a question concerning “reproductive conditions”, not Ms Thomson’s chronic pain condition. Hence, it is not surprising that the treatments do not appear to be designed or intended to treat pain.
The first treatment (a laparoscopy) was a repeat of a “primarily” investigative procedure that had been undertaken by Ms Thomson in 2016. According to Dr Price, undertaking that repetitive treatment “may have” resulted in the exclusion of a particular diagnosis (endometriosis), in which case Dr Price suggested that further investigations would have been carried out, such as investigations into bowel-related disorders.
While the undertaking in 2016 of that primarily investigative procedure coincided with or caused some relief in relation to Ms Thomson’s chronic pain, that relief was only temporary. The procedure was undertaken in May 2016 and she was again presenting with chronic pain some four months later, in September 2016.
The effect of the second treatment (a medication called Zoladex) was said by Dr Price to suppress production of certain hormones. As explained by Dr Price in his report, that suppression would appear to assist in the treatment of a gynaecological condition which he had suggested was unlikely to be responsible for Ms Thomson’s chronic pain (polycystic ovaries) and of another gynaecological condition of which, according to Dr Price, there had been no definitive diagnosis (endometriosis).
In light of the foregoing, we do not consider that the failure to have undertaken the two forms of treatment referred to by Dr Price precludes a conclusion that Ms Thomson’s chronic pain condition had been fully treated (or, as will be seen later, a conclusion that her condition was fully stabilised).
As for the requirement under s 6(5)(c) of the Tables to consider whether treatment is planned in the two years following the QP, we note that further treatment was, indeed, contemplated in that period.
In particular, and as summarised in the job capacity assessment report of 15 May 2017, Ms Thomson had been referred to a pain management program (which she did not undertake until after the QP), had been advised to undertake pelvic floor physiotherapy (which she commenced in mid-2017 and was still undertaking in 2018), and intended to have another laparoscopy.
The Secretary’s submission appeared to be that, because further, additional, treatment within the two year period following the QP was contemplated, Ms Thomson’s condition could not be considered to be fully treated.
We reject this submission.
In determining whether Ms Thomson’s condition was fully treated the fact that further, contemplated, treatment is a consideration; it is not determinative.
Indeed, a condition may be considered to be fully treated despite an intention to undertake further, additional, treatment. A cessation of all additional treatment is not a precondition to a DSP entitlement. It is not expressed to be such in the Tables. Further, the legislature ought not to be taken by implication to have intended to impose such a precondition. Were it otherwise, the undertaking of investigative or experimental procedures would operate as a bar to the receipt of a DSP.
While it has been said that a condition could not be considered to be permanent (or to have stabilised) if it is still being treated and further surgery is contemplated,[5] this ought to be understood only in the context of the specific, proposed treatment and surgery.
[5] See Pistone; Secretary, Department of Family and Community Services [2003] AATA 375 at [26].
Here the treatment and surgery proposed involved:
(a)Attending a pain management program. This is not, in fact, a treatment. As the Full Court of the Federal Court in Harris concluded,[6] whatever attendance at a pain management program means, it is not inconsistent with a finding that a chronic pain condition had been diagnosed, treated and stabilised.
(b)Attending a physiotherapist to “see if they can help to downtrain the pelvic floor muscles” (as recommended by a Dr Ellett, a consultant obstetrician and gynaecologist at the Mercy Hospital for Women). While Ms Thomson was advised to undertake that physiotherapy, there is nothing to suggest that her doing so was expected to address her chronic pain condition, noting Dr Ellett’s view was that there “…is not going to be a quick fix for this problem”. Indeed, her physiotherapy treatment was simply directed to assisting Ms Thomson to “manage her pain” (as outlined in a letter of 10 April 2017 from Ms Becky Hollows of the Mercy Hospital for Women).
(c)A laparoscopy. There is nothing to suggest that this further laparoscopy was intended to be anything other than largely diagnostic, like the one undertaken in 2016. Ms Thomson’s evidence was that, while she thought any relief provided by the laparoscopy was likely to be short term, it might preserve her fertility and assist in diagnosis. Indeed, when Dr Price suggested that optimal treatment would have involved a further laparoscopy, he described it in terms of enabling a definitive diagnosis (or enabling the definitive exclusion of a diagnosis), through surgical excision or targeted biopsy.
[6] Secretary, Deptartment of Employment and Workplace Relations v Harris [2007] FCAFC 130 at [39].
As previously indicated, Dr Price considered that the treatment afforded to Ms Thomson should have been expanded to encompass treatment designed to investigate and identify the underlying cause of Ms Thomson’s pain. In this context, Dr Price expressed a broad proposition to the effect that a person could not be said to have been optimally treated absent a definitive diagnosis.
When coupled with his opinion that chronic pelvic pain is a symptom not a diagnosis (later qualified to admit of the possibility that chronic pain may be a diagnosis where “all other reasonable possibilities have been excluded”), acceptance of Dr Price’s proposition would mean that the treatment of a person suffering chronic pain could never be considered to have been optimal unless and until the underlying cause of the pain had been identified (or unless and until all other reasonable possibilities had been excluded).
In reliance on this broad proposition, the Secretary might be taken to have submitted that Ms Thomson’s chronic pain condition could not be considered to have been fully treated (or fully stabilised) unless and until all reasonably possible diagnoses had been excluded.
Insofar as that was being submitted by the Secretary, we reject it.
Where the condition is chronic pain the prospect of further procedures or further treatment cannot be an automatic bar to receipt of a DSP. Unless it is assumed that the community of health professionals had given up on a patient suffering chronic pain, the prospect of further diagnostic procedures or further treatment intended to ameliorate pain will, at any particular time, be inevitable.
This is not to say that the prospect of certain diagnostic procedures could not operate as a bar to the receipt of a DSP for a chronic pain condition. We can well imagine that a diagnostic procedure might operate as such a bar if, say, it could have been reasonably expected to confirm the applicability of a medical condition that was then thought likely to be the underlying cause of the chronic pain, albeit a condition not then fully diagnosed. This is not, however, the case here.
In Ms Thomson’s case, the potential underlying medical condition was endometriosis (given that Dr Price opined that there was no evidence that polycystic ovaries, the other postulated diagnosis, causes chronic debilitating pelvic pain). In the face of the counter indications referred to by Dr Price in his report (such as “serial ultrasounds” failing to find any permanent convincing evidence of endometriomas), it may well not have been reasonable to consider in the QP that endometriosis was likely to be the underlying cause of Ms Thomson’s chronic pain. Even if it was, however, it would not have been reasonable then to expect that the contemplated diagnostic procedure, a laparoscopy, would confirm that diagnosis, given that it was repetitive of a then relatively recent inconclusive procedure.
Further, there is nothing in the Tables to suggest that impairment from chronic pain is only capable of attracting a DSP once all reasonably possible diagnoses had been excluded, and nor do the guidelines that apply in relation to use of the Tables suggest this.[7]
[7] See the Guide to Social Security Law and, in particular, paragraph 3.6.3.07 of version 1.253 of the Guide in relation to chronic pain, and to the discussion of this aspect of the Guide in Wright and Secretary, Department of Social Services [2014] AATA 498 at [22].
Indeed, imposition of a requirement to exhaust all reasonably possible diagnoses would run counter to a purpose and general design principle of the Tables, being that they are “function based rather than diagnosis based” (s 5(2)(b)). It would also run counter to a number of Tribunal decisions such as Shams[8], where the Tribunal concluded that the absence of a precise label for a condition did not preclude a determination that it had been fully diagnosed, treated and stabilised, once the full extent of the relevant symptoms had been canvassed.[9]
[8] Shams and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 335.
[9] See Shams at [19]. See also Burns and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 220 at [25]).
Lastly, given the consequence it would have in rendering chronic pain a condition of last resort, acceptance of the call for a definitive diagnosis would be inconsistent with decisions of the Federal Court in Harris, both at first instance and on appeal.[10]
[10] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 and, on appeal, Secretary, Deptartment of Employment and Workplace Relations v Harris [2007] FCAFC 130.
In this regard, at first instance and in the context of a DSP applicant who suffered a chronic pain condition, Gyles J stated that it was “…troubling that an applicant presenting with a long standing diagnosed condition being treated in a conventional fashion should be rejected for a benefit, not because of any identified defect in diagnosis or treatment but, rather, upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.”[11]
[11] Harris at [17].
Denial of a DSP claim in relation to a chronic pain condition on the basis that all reasonably possible diagnoses had not been excluded is akin to a denial “…upon the basis that further examination by another medical practitioner or other practitioners might suggest some other diagnosis or some other treatment.”
On appeal in Harris, the Full Court of the Federal Court disdained an apparent reluctance to treat chronic pain as a diagnosis or as a condition which may attract an impairment rating under the Tables. There it was said that a finding of chronic pain “…standing alone, reflected a diagnosis and supported a conclusion that the condition was permanent. Attempts by counsel for the appellant to argue that chronic pain was a manifestation of other conditions and should not have been regarded as a condition in its own right for the purpose of impairment ratings flies in the face of the express provision made for it in…” the then applicable Tables[12] (as it does in the currently applicable Tables[13]).
[12] Harris on appeal at [37].
[13] See s6(9)(b) of the Tables.
The approach adopted in Harris is reflected in the Tribunal’s decision in Hudson.[14] There, the Tribunal characterised a “chronic abdominal condition” as the best working diagnosis of a DSP applicant. That condition was considered to have been fully diagnosed, treated and stabilised despite “an inability by the many specialists involved to agree upon the exact nature of the underlying pathology.” It was also arrived at despite the Tribunal’s attention having been drawn to the possibility of further investigation. As to that possibility, it was said to obstruct the reality of what had occurred.[15]
[14] Hudson and Department of Family and Community Services [2000] AATA 502.
[15] Hudson at [41]. Hudson might, however, be difficult to reconcile with the recent Tribunal decision in Nabasango and Secretary, Department of Social Services (Social services second review) [2019] AATA 120. At [14] of that decision it appears to be suggested that abdominal pain could not be considered to be a fully diagnosed condition given the absence of a diagnosis of an underlying condition and a clear requirement to carry out further investigations.
Having regard to the matters which the Tribunal is required to consider, we find that Ms Thomson’s condition was fully treated.
Is the condition fully stabilised?
This then takes us to the third hurdle to a conclusion that Ms Thomson’s chronic pain was permanent. That hurdle lies in the requirement that it be fully stabilised.
Under s 6(6) of the Tables Ms Thomson’s chronic pain condition will be considered to be fully stabilised if either of two conditions are satisfied. In the circumstances, the condition to be applied depends on whether Ms Thomson’s treatment prior to the QP constituted reasonable treatment (a concept we elaborate on later). If it did constitute reasonable treatment, her condition will be considered to be fully stabilised if any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling her to undertake work in the next 2 years. If it did not constitute reasonable treatment, her condition will be considered to be fully stabilised if significant functional improvement to a level enabling her to undertake work in the next 2 years is not expected to result, even if she undertakes reasonable treatment
Hence, irrespective of the reasonableness or otherwise of her treatment prior to the QP, at least one of the prescribed conditions will be satisfied (with the result that Ms Thomson’s condition will be considered to be fully stabilised) if:
(a)any further “reasonable treatment” is unlikely to result in significant functional improvement to a level enabling her to undertake work in the two year period after the QP; and
(b)significant functional improvement to a level enabling her to undertake work in the two year period after the QP is not expected even if she were to undertake “reasonable treatment”.
A reasonable treatment is a treatment that, amongst other things, can reliably be expected to result in a substantial improvement in functional capacity, and have a high success rate (s6(7) of the Tables).
The Tribunal is not being asked to assume the existence of reasonable treatment. Instead, such a treatment needs to be identified.
In terms of identified further treatments, reference is made to the two treatments Dr Price considered ought to have been undertaken and those specified in the job capacity assessment report of 15 May 2017. For the reasons previously outlined when discussing these treatments, none of them were reasonable. In particular, none could reliably be expected to result in a substantial improvement in Ms Thomson’s functional capacity (as impaired by her chronic pain condition).
Accordingly, given the absence of any identified reasonable treatment, it could not be said that reasonable treatment was likely to result in significant functional improvement. Instead, if there is no reasonable treatment, it is certain that reasonable treatment would not result in significant functional improvement. If it is certain that reasonable treatment would not result in significant functional improvement, then it must be unlikely to do so, as well. Hence, the first criterion previously identified is satisfied.
As for the second criterion (significant functional improvement … is not expected), we find that it, too, is satisfied.
This finding is arrived at in reliance on evidence of relevance to the fourth and last hurdle to the conclusion that Ms Thomson’s chronic pain condition was permanent, to which we now turn.
Is the condition and resultant impairment expected to subsist for two years?
The last hurdle to Ms Thomson’s chronic pain condition being considered permanent lies in a prospective test. Was that condition more likely than not, in the light of available evidence, to persist for more than two years?
That prospective test is applied not only in relation to Ms Thomson’s condition but also in relation to the impairment that results from that condition. Satisfying that test in relation to the impairment is a necessary pre-requisite to being assigned an impairment rating under the Tables.
In particular, it is necessary that the impairment resulting from Ms Thomson’s chronic pain condition be more likely than not, in light of available evidence, to persist for more than two years.
As to each of the chronic pain condition and the resultant impairment, we find that, in the QP and in the light of available evidence, it was more likely than not to persist for more than two years.
The weight of the evidence supports this finding. It includes the following:
(a)At the time of the QP Ms Thomson already had a substantial and lengthy history of presenting with, and being treated for, a chronic pain condition (as outlined earlier in the context of the discussion about her condition having been fully diagnosed).
(b)At the time of the QP Ms Thomson already had a substantial and lengthy history of impairment. On 7 March 2016 her general practitioner noted that she had been missing university due to chronic pain. Between May and October, he certified that she was unfit to attend work or studies on four occasions, for periods ranging from two to seven days. On 29 November 2016 a doctor from the general practice attended by Ms Thomson stated that Ms Thomson was only able to undertake study with a part-time load in the period November 2016 to December 2017. In November 2016 the university attended by Ms Thomson placed her on a learning support plan for the 2017 academic year, given that she had a condition “that will impact adversely on her studies over the next 12 months”. On 28 December 2016, a doctor from the general practice attended by Ms Thomson certified her unfitness for full-time work and study in respect of a three month period commencing 25 November 2016. On 21 February 2017 a doctor at the same practice again certified her unfitness for full-time work and study, this time in respect of a three month period commencing on 25 February 2017. On 20 March 2017, the person who employed Ms Thomson as a part time nanny advised that the arrangements concerning her employment were regularly altered because of reasons pertaining to Ms Thomson’s health.
(c)In a letter of support dated 21 March 2017 Ms Thomson’s general practitioner stated that the benefit from procedures already undergone by Ms Thomson to attempt to relieve her symptoms had been limited.
(d)As previously mentioned, in April 2017 Dr Ellett opined in relation to Ms Thomson that there is not going to be “a quick fix for this problem”.
(e)The job capacity assessment report of 15 May 2017 to which we have referred previously contains a statement that “[m]edical evidence indicates condition likely to persist for greater than 24 months”. (We recognise, however, that such a report may have limited, if any, probative value, especially as there is no evidence that the rehabilitation counsellor who compiled it had any relevant specialised knowledge and experience.[16])
[16] See Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [72] [75].
(f)Despite already receiving “significant amounts of pain relief” in 2016 (and as reflected in an Alfred Hospital prescription of 3 March 2017), Ms Thomson’s pain medications were increased in May 2017.
(g)On 12 October 2017, Ms Thomson’s treating general practitioner stated, in relation to her chronic pelvic pain condition, that it “is not expected to improve substantially in the near future”.
(h)On 21 December 2017, an assessment completed by a three person team based at the Caulfield Pain Management and Research Centre of the Caulfield Hospital (comprising a psychologist, occupational therapist and a physiotherapist) stated that “[g]iven the nature of Ms Thomson’s presenting issues, if improvements in pain, fatigue and anxiety are to occur, these will occur gradually over time.”
(i)On 21 December 2018, a women’s health physiotherapist at the Mercy Hospital for Women opined that “the burden of chronic pain for Natasha has been significant, impacting her ability to work and study, exercise and social interaction and general wellbeing”.
(j)In her report of 1 August 2018 Dr Ryan stated that:
(i)“certainly between 2013/14 and to the present date, Ms Thomson has been grossly troubled with various intensity and frequency of pelvic pain…”;
(ii)there was a “well-recognised potential lack of effective treatment” for Ms Thomson’s condition;
(iii)on the basis of her best understanding of the nature of Ms Thomson’s medical condition, it “may well be that even appropriate and reasonable treatment may not fix the medical scenario”; and
(iv)in the context of her often being referred young women suffering pelvic pain, attention from various specialists and physicians “often does not resolve the patient of their pain to allow them full and unrestricted function.”
In so far as some of the foregoing material post-dates the QP, we use it in support of an inference as to the position that obtained during the QP (albeit that the strength of the inference dissipates with the passage of time).
We do not suggest that there is no evidence in support of a conclusion contrary to the one we have arrived at. In particular:
(a)As mentioned previously, on 29 November 2016 a doctor from the general practice attended by Ms Thomson stated that Ms Thomson was only able to undertake study with a part-time load in the period November 2016 to December 2017. This statement was prefaced by a remark that Ms Thomson’s condition was temporary, a remark made despite the period of study relief being sought being in excess of a year.
(b)A pro-forma Centrelink certificate was completed by a treating general practitioner on each of 28 December 2016 and 21 February 2017 which, amongst other things, involved a box being crossed indicating that that Ms Thomson’s pelvic pain was a temporary condition. Detracting from the apparent certitude that flows from that box having been crossed, however, is the prognosis offered in both certificates in relation to Ms Thomson’s symptoms. They were said to “hopefully improve”. Further, one of the certifiers was the general practitioner who, as previously mentioned, opined on 12 October 2017 that Ms Thomson’s “condition is not expected to improve substantially in the near future”.
(c)The job capacity assessment report previously mentioned contains a statement that it “is possible with further intervention client may have functional improvement within 24 months.” There is, as mentioned, an issue about the probative value of such a report. Further, any value a statement such as that quoted might otherwise have had is diminished by the equivocal language employed in it. Lastly, the prospect of improvement in functionality is based on three forms of “treatment” one of which (attending a pain clinic) is not a treatment, another of which (a further laparoscopy) was likely to be primarily diagnostic and the last of which (attending a physiotherapist) was directed to pain management.[17]
(d)Dr Price opined that “[s]urgical excision [of endometriotic deposits] is usually adequate on its own to resolve symptoms of endometriosis in most patients”. Dr Price did not, however, consider that there had been a definitive diagnosis of endometriosis. Further, surgical excision is not something that could be expected in the context of any further laparoscopy. It was not undertaken in the context of her 2016 laparoscopy and it was only one of two alternatives Dr Price was recommending, the other involving targeted biopsies.
(e)Dr Price also opined that it was likely that Ms Thomson’s symptoms would have resolved “had she been given a definitive diagnosis of endometriosis and received definitive early treatment”. As, however, no definitive diagnosis of endometriosis had been made at the QP, and given the doubts which Dr Price appeared to have as to the availability of such a diagnosis, postulating a situation that would apply were such a diagnosis to have been made drifts into the realm of mere speculation.
Assigned impairment rating of 20 or more points?
[17] See the earlier discussion of these “treatments” in the context of the Tribunal’s consideration of whether Ms Thomson’s condition had been fully treated.
Consistent with the Secretary’s submissions, Ms Thomson appeared to accept that the condition causing her pain had not been fully diagnosed or fully treated, and was not fully stabilised.
Nevertheless, her chronic pain condition is permanent. It was fully diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and more likely than not, in the light of available evidence, to persist for more than two years.
Moreover, the impairment resulting from her condition was more likely than not, in light of available evidence, to persist for more than 2 years.
Given these conclusions, Ms Thomson’s impairment can be assigned an impairment rating under the Tables.
Is the rating capable of being assigned to Ms Thomson’s impairment of 20 or more points (necessary as a condition of entitlement to a DSP)? The Secretary submits that it is not.
Whether the Secretary is correct depends on first, selecting the table to be used and secondly, on an analysis of Ms Thomson’s impairment in the context of the selected table.
Under the Tables (s 6(9)), where the condition causing the impairment is diagnosed as chronic pain, the particular table to be used is the one relevant to the area of function affected.
The Secretary contended (and Ms Thomson accepted) it was Table 10, being the table “to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.” The Tribunal adopts that contention, noting that in the Social Security Guide it is suggested that Table 10 can be used where, as here, there is chronic pelvic pain impairing a person’s ability to concentrate or sustain tasks.[18]
[18] Social Security Guide, version 1.253, section 3.6.3.07 outlining examples of table use for permanent conditions.
Under Table 10, in order to attract the minimum required rating of 20 points, there needs to be at least a “severe” functional impact on Ms Thomson’s work-related or daily activities due to symptoms or personal care needs associated with her chronic pain condition.
In order for that functional impact to be considered severe at least two of the following descriptors would need to be considered to have applied to Ms Thomson in the QP:
(a)her attention and concentration at a task is frequently (at least once every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with her condition;
(b)she is unable to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of her condition;
(c)her condition may affect the comfort or attention of co-workers;
(d)she is frequently (twice or more per month) absent from work, education or training activities due to her condition.
As to the first descriptor, the Secretary accepted that Ms Thomson’s pain interrupted her attention and concentration but submitted that there was insufficient evidence that this occurred at least hourly. The Secretary noted that Ms Thomson had been able to engage in tertiary studies, paid work as a nanny (of eight hours per week, spread over two days) and voluntary work (involving shifts often in excess of 3 hours), on a regular basis.
We reject the Secretary’s submission.
Evidence directly corroborating Ms Thomson’s evidence that her attention and concentration was interrupted or reduced at least hourly was, unsurprisingly, unavailable. Nevertheless, despite the strictures set out in s 8(1) of the Tables, we were able to take her evidence into account given some corroborating, indirect, evidence.
In particular, in the education inclusion plan adopted on 29 November 2016 in respect of the 2017 calendar year by the tertiary institution attended by Ms Thomson, it was said that Ms Thomson “can experience difficulties with concentration, especially when required to concentrate for long periods of time” and that, in the context of tests, quizzes and exams, she should be allowed an “extra 10 mins/hr” rest break.
Moreover, fatigue (a symptom associated with Ms Thomson’s chronic pain condition[19]) inevitably reduces, if not interrupts, attention and concentration. It would appear to have been Ms Thomson’s constant companion. In this regard:
(a)Ms Thomson gave evidence to the effect that fatigue was an issue due to her being in constant pain and that she “napped” in the middle of the day.
(b)On 20 March 2017, her employer stated that “the combination of chronic pain and medications also means that Natasha gets very exhausted”, and that she often sees Ms Thomson taking medications, medications that “can make you very tired and there are times when Natasha needs to nap when my baby naps.”
(c)In a letter of support dated 21 March 2017, Ms Thomson’s general practitioner stated that Ms Thomson’s sleep is adversely affected.
(d)A conclusion that Ms Thomson’s sleep is adversely affected by her condition is echoed in the job capacity assessment report of May 2017 to which we have previously referred. Ms Thomson is said to experience constant daily pain and disturbed sleep resulting in fatigue and reduced concentration.
(e)On 14 July 2017, in a letter to Ms Thomson’s general practitioner, a medical specialist from the Endosurgery A Clinic of the Mercy Hospital for Women stated that Ms Thomson was quite troubled by daytime fatigue and that she was distressed about it and its impact on her then upcoming teaching placement.
(f)In notes of 5 December 2017 in relation to Ms Thomson compiled by a Dr Donovan, a pain fellow at the Caulfield Pain Management and Research Centre of the Caulfield Hospital, it was noted that “fatigue is as big a problem as pain”.
(g)On 21 December 2017, the previously mentioned assessment completed by a three person team based at the Caulfield Pain Management and Research Centre of the Caulfield Hospital stated that Ms Thomson’s signs and symptoms were consistent not only with chronic pain but also fatigue.
(h)Dr Price opined that increasing the use of pain relief can lead to levels of fatigue.
[19] See Guidelines to the Tables for the Assessment of Work-related Impairment for Disability Support Pension, s3.6.3.100.
Corroborating evidence of other symptoms of relevance to the application of table 10(1)(a) include:
(a)the March 2017 statement from Ms Thomson’s employer concerning the need to take medications (discussed earlier); and
(b)the education inclusion plan formulated in late 2016 by the tertiary institution attended by Ms Thomson concerning additional toileting and, in particular, the potential need for frequent supervised visits to the toilet during tests, quizzes and exams.
We note that Dr Price opined that the effect of Ms Thomson’s condition was sufficient to satisfy only the attention and concentration descriptor for a moderate, rather than a severe, functional impact. That descriptor calls for a reduction or interruption in concentration and attention at least once a day but not every hour.
Dr Price arrived at this opinion because he considered it likely that Ms Thomson would be able to maintain concentration in her role as a nanny “based on the small number of hours worked per week as a nanny and the potential side effects of her medications”. Undertaking that role is not, however, inconsistent with an at least hourly reduction in concentration and attention, given her, and her employer’s, description of that role (information to which Dr Price did not have access).
As to the paragraph (b) descriptor (an inability to sustain work activity or other tasks for a total of more than 3 hours a day, even with regular breaks, due to symptoms of Ms Thomson’s condition), the Secretary submitted, in essence, that Ms Thomson’s history as a nanny, volunteer and student established that she was able to sustain work activity or other tasks for periods of three or more hours per day.
In this regard, the Secretary drew the Tribunal’s attention to Ms Thomson’s fortnightly shifts as a volunteer at the Royal Children’s Hospital (which during the QP, were regularly in excess of three hours duration) and to her work as a nanny (involving two shifts per week of, in aggregate, eight hours duration).
We reject the Secretary’s submission.
In doing so we apply to the concept of “work activity” a meaning consistent with that adopted in construing the concept of “work” as employed in the continuing inability to work test (a test discussed later in our reasons). In effect, this means that we do not consider Ms Thomson’s shifts as a nanny and as a volunteer to be a work activity. The evidence reveals that those shifts were not undertaken in the context of a normal, open, workplace but, rather, the workplace of a benign employer (noting, for instance, that the shifts as a volunteer often involved watching movies with hospital patients or comforting infants or children who were not able to participate in any physical activities).[20]
[20] Triantafillou and Secretary, Department of Family and Community Services [2003] AATA 56 at [51]; Cremer and Secretary, Department of Employment and Workplace Relations [2007] AATA 1356 at [44] and [45]; Secretary, Department of Families, Housing, Community Services and Indigenous Affairs v Harris [2010] FCA 360 at [80].
Even if the concept of “work activity” were not to be construed in the manner we have suggested, the evidence does not reveal a capacity to “sustain” work activity of more than three hours a day (that is, cause work activity to continue for an extended period or without interruption).[21] The three (or more) hourly shifts at the Royal Children’s Hospital occurred only fortnightly. That does not establish a capacity to sustain, that is, continue without interruption, daily shifts of three or more hours’ duration. Each shift was interrupted by a two week break.
[21] See as at 1 May 2019 and the third meaning given there to the word “sustain”.
Moreover, Ms Thomson’s uncontroverted evidence under cross-examination concerning a period in which she undertook several shifts in excess of three hours was that, in that period, she also missed a shift and had shortened shifts likely because she was unwell. Missing shifts and requiring shortened shifts (that is, requiring shifts of less than three hours duration) is not consistent with a capacity to continue for an extended period or without interruption the undertaking of at least three hourly shifts.
As to the “other tasks” component of the descriptor, we take it to refer, in essence, to other pieces of work to be done or undertaken.[22]
[22] See as at 26 April 2019.
Nothing in the evidence concerning Ms Thomson’s role as a nanny or her role as a volunteer is suggestive of either role requiring the doing or undertaking of any particular piece of work for a total of more than three hours a day.
As to Ms Thomson’s history as a student, she was, in the QP, undertaking tertiary studies. As to this, we make two comments.
First, the fact that she was undertaking tertiary studies is not, of itself, sufficient to establish a failure to satisfy the descriptor. Clearly, the legislature does not intend that an ability to undertake educational tasks ought necessarily preclude receipt of a DSP. It is expressly contemplated that an impairment in relation to which an entitlement to a DSP may arise need not be such as to prevent a person from undertaking a training activity (s 94(2) of the Act).
Secondly, the evidence does not establish that Ms Thomson was, in the QP, undertaking her educational tasks for more than three hours per day, or, at least, for more than three hours per day “on a repetitive or habitual basis”.[23] At the time of the QP (occurring in the first semester of the 2017 university year) Ms Thomson was a part-time student undertaking two units of study involving three (or, possibly, less) contact hours per week.
[23] See Guidelines to the Rules for Applying the Impairment Tables, s 3.6.3.05 and s 11(3) of the Tables.
While the evidence does not establish that Ms Thomson was able to sustain work activity or other tasks for a total of more than 3 hours a day, does it establish that she was unable to do so? We find that it does.
Dr Price provided an opinion to that effect. He stated that Ms Thomson had reduced her study workload, as well as her work as a nanny, and that “…given her medications, concentration for greater than 3 hours would be difficult…” even with breaks (an opinion not expressed in his report but arrived at in his oral evidence, after a reconsideration of the exact terms of the descriptor).
Dr Ryan’s opinion is consistent with that of Dr Price. In particular, Dr Ryan opined that “Ms Thomson is only able to be employed … due to the very supportive employer…” and stated that she “could not imagine that Ms Thomson currently presents as a candidate for regular, commercially sustainable employment”.
Conclusion on 94(1)(b)
We find that s 94(1)(b) of the Act is satisfied; Ms Thomson’s impairment is of 20 points or more under the Impairment Tables.
DOES MS THOMSON HAVE A CONTINUING INABILITY TO WORK?
In order to satisfy s 94(1)(c) of the Act Ms Thomson had to have had, in the QP, a continuing inability to work.
Given that Ms Thomson’s impairment is severe (being of 20 points or more under a single table of the Tables), she will be considered to have had such an inability in the QP because of an impairment if:
(a)the impairment was then of itself sufficient to prevent her from doing any work within the next two years, being work that exists in Australia, of at least 15 hours per week, at or above the minimum wage and independently of a program of support; and
(b)either the impairment was then of itself sufficient to prevent her from undertaking a training activity during the next 2 years or, if the impairment did not then prevent her from undertaking a training activity, such activity was then unlikely (because of the impairment) to enable her to do any work independently of a program of support within the next 2 years.[24]
[24] See ss94(2)(3)(3B)(4)(5).
The Secretary submitted that Ms Thomson did not have a continuing inability to work, a submission directed to the first component of the continuing inability to work test (the inability to work 15 hours per week). In particular, the Secretary relied on evidence of Ms Thomson’s work and educational history which was said by the Secretary to be inconsistent with a finding that Ms Thomson was unable to work at least 15 hours per week, and on the job capacity assessment report to which we have previously referred.
As for Ms Thomson’s work history, it entailed providing services as a nanny for eight hours per week (spread over two days) and volunteering at the Royal Children’s Hospital.
Contrary to the Secretary’s submission, the provision of those services and that volunteering is not inconsistent with a finding that Ms Thomson was unable to work at least 15 hours per week. This is because, for current purposes, those services and that volunteering did not constitute work. As previously identified, the evidence reveals that they were not undertaken in the context of a normal, open, workplace but, rather, the workplace of a benign employer. As the Secretary rightly pointed out, it is necessary to disregard “the existence of a benign employer or sheltered or special employment; that is, only the normal workplace is considered”.[25]
[25] Paragraph 4.61(f) Secretary’s statement of issues, facts and contentions.
As for Ms Thomson’s educational history, as previously identified, during the QP she was a part-time student with relatively minimal contact hours. This is not inconsistent with a finding that she was unable to work at least 15 hours per week.
As part of her course Ms Thomson did undertake a placement at a primary school in Melbourne. Such a placement is normally in the order of six or eight five-day weeks (or 40 days). In the case of Ms Thomson, the placement entailed only four-day working weeks which were generally undertaken non-consecutively (with three consecutive weeks being the longest single period of the placement). The placement occurred primarily in the last term of the 2017 school year, but with a period in the following term to take advantage of an extension of the time in which to complete her placement. That extension was granted due to the four-day week limitation and also due to Ms Thomson apparently having had “…multiple days off due to illness”.[26]
[26] See Exhibit A-3, memo prepared by Australian Catholic University dealing with a “Fitness to Teach” assessment.
Working six or eight four-day, often non-consecutive, weeks split into two tranches does not establish an ability to work at least 15 hours per week, especially when regard is had to:
(a)Ms Thomson’s evidence that she was hospitalised twice during the placement period and to the evidence of her having been granted an extension in relation to the placement, at least partly because she had taken multiple days off from the placement due to illness; and
(b)the policy reflected in the Social Security Guide to the effect that a person should only be considered to have the requisite ability if the person is able to maintain a minimum 15 hour per week work load reliably over a relatively lengthy period, without excessive absences.[27] We adopt that policy, noting that there is nothing in the circumstances here under consideration that would warrant a departure from it.[28]
[27] Social Security Guide, version 1.253 at 3.6.1.67
[28]. See Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634 as to the desirability of adopting government policy in order to promote consistent decision-making.
In the job capacity assessment report of May 2017, to which we have previously referred, an opinion was expressed to the effect that Ms Thomson had a work capacity of 15 to 22 hours per week “with intervention”.
We outlined earlier our reluctance to accord to the report significant probative value, especially as there is no evidence that the rehabilitation counsellor who compiled it had any relevant specialised knowledge and experience. This reluctance is compounded in so far as the report is being relied upon as evidence of an ability to work at least 15 hours per week.
The report suggests that Ms Thomson had a baseline work capacity of eight to 14 hours per week. This supports her submission that she did not have the requisite 15 hour per week ability.
The report goes on to state, however, that Ms Thomson’s work capacity “is expected to increase to 15 - 22 hours per week with disability specific intervention in the form of workplace modifications, vocational counselling and Post-placement support.”
There is, in the report, no explanation as to what these interventions might entail. We note, for example, that it would seem difficult to envisage what could realistically have been done to Ms Thomson’s workplace that would increase her work capacity in light of her then subsisting workplace arrangements, the flexibility of which is expressly acknowledged in the report.
More importantly, there is no explanation in the report as to why any of the identified forms of intervention supported an expectation of increased work capacity given that an improvement in functional capacity “with intervention” was not said in the report to be expected, merely “possible”.
Indeed, as we previously mentioned, the possibility of an improvement in functional capacity seemed in the report to be based on the undertaking of three forms of “treatment”, not the three forms of disability specific interventions identified in the report.
In a separate section of the report three “interventions” were identified for Ms Thomson. These interventions comprised a pain management program, disability management education/counselling and further diagnostic/medical investigation.
It is not clear whether these “interventions” were relied upon to support the increased work capacity expectation in addition to the three disability specific interventions identified in the report. In so far as they were, however, again there is no explanation as to why they were thought to do so. Two of the “interventions” reflect two of the “treatments” that were thought only to possibly increase functional capacity.
We consider that the evidence in support of the Secretary’s submission that Ms Thomson did not have a continuing inability to work to be unconvincing. To the contrary, we find that she did have such a continuing inability. We arrive at this finding in reliance on the opinions of Dr Price and Dr Ryan.
Based on the assumption that chronic pain is the condition that had been fully diagnosed, treated and stabilised (an assumption consistent with our conclusions) Dr Price opined that it (and the medications used for treatment) would prevent Ms Thomson from undertaking any work of at least 15 hours per week and, also, any training activity.
While the opinion of Dr Ryan is expressed less directly, it is also supportive of Dr Price’s opinion.
In particular, Dr Ryan opined that Ms Thomson’s pain could flare-up at any particular time without any particular trigger but that it would be reasonable to expect it to flare cyclically, at least monthly.
The relatively frequent but unpredictable nature of this flaring would, as we see it, deprive Ms Thomson of any ability to maintain a minimum 15 hour per week work load reliably over a relatively lengthy period, without excessive absences.
DECISION
For the reasons articulated above, the Tribunal affirms the decision under review.
I certify that the preceding 132 (one hundred and thirty-two) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member and Chris Furnell
.........[sgd].........................................
Associate
Dated: 20 May 2019
Date of hearing:
10 and 11 April 2019
Applicant:
Self-Represented
Advocate for the Respondent:
Ms Kellie Latta
Solicitors for the Respondent:
SPARKE HELMORE
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