Tosi and Secretary, Department of Social Services (Social services second review)
[2017] AATA 527
•21 April 2017
Tosi and Secretary, Department of Social Services (Social services second review) [2017] AATA 527 (21 April 2017)
Division:GENERAL DIVISION
File Number: 2016/3032
Re:Helen Tosi
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISION
Tribunal:Senior Member J Sosso
Date:21 April 2017
Place:Brisbane
The Tribunal affirms the decision under review.
.................................[sgd].......................................
Senior Member J Sosso
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – points allocation – whether conditions attract points under the Impairment Tables – relevant period – where conditions were aggravated after the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991, ss 26, 94
Social Security (Administration) Act 1999, s 63, Sch 2 Pt 2 Cl 4CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2012] AATA 922
Gallacher v Secretary, Department of Social Security[2015] FCA 1123
Shi v Migration Agents Registration Authority(2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011
REASONS FOR DECISION
Senior Member J Sosso
21 April 2017
INTRODUCTION
Ms Helen Tosi (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT1) of 15 April 2016 which affirmed a decision to reject her claim for the disability support pension (DSP) made on 24 June 2015.
In her claim, the Applicant described her medical conditions as “post traumatic stress disorder, chronic regional pain syndrome, bursitis shoulders, partial tendon tear right hip, anxiety, claustrophobia, previous whiplash injuries” – Exhibit 1 T28 p.165.
The Applicant also provided a medical report from Dr Wright, a general practitioner dated 13 July 2015.
Under the heading “condition with most impact” Dr Wright noted that the Applicant suffered from post-traumatic stress disorder with anxiety and depression – Exhibit 1 T29 p.184. The symptoms of this condition were stated to be anxiety, involuntary eye movements, palpitations, insomnia, short attention span and social withdrawal – p.185. Dr Wright further noted that the impact of this condition on the Applicant’s ability to function included poor concentration and attention span, an inability to drive for more than 10 minutes, social anxiety and fatigue – p.186.
The Applicant also provided a report from a clinical psychologist, Dr Claire Cashman dated 9 July 2015. Dr Cashman made the following observations (Exhibit 1 T29 pp.192-193):
“Helen indicated that she was involved in a road traffic accident around 4 years ago at Peregian Beach. She was crossing the road at a pedestrian crossing when a vehicle went into her into (sic) front on and Helen went over the fender. She did not loose (sic) consciousness but was injured on her right ankle. She was diagnosed with a fractured talus of the right ankle, fractured right lateral malleolus, complex regional pain syndrome and deep vein thrombosis. Helen discussed that she has been unable to work since the accident and has experienced mental health issues. She described being low in mood, socially isolated and feeling highly anxious. She has difficulty with her sleep and experiences intermittent night waking. She described that prior to the accident she was very sociable and did not experience anxiety. She worked at a screen printers and would feel comfortable driving over large distances. She now feels highly anxious driving and will experience flashbacks to the accident. She is very worried when crossing any roads on foot and tends to be avoidant of going out due to this issue. She also described that the consistent pain she experiences is causing her to feel low in moods and irritable. She also has difficulties with her eyes and that they are highly sensitive. She tends to wear sunglasses and has difficulty in keeping her eyes open consistently. She described that she feels unable to work and is concerned about her financial future…
In my opinion Helen does require on going treatment to address her PTSD and anxiety. In my view, she is relatively stable at the present time and has self awareness around her issues. She would certainly benefit from on going management and treatment of her condition. This could be managed through the use of cognitive behavioural therapy and the development of strategies to mange her symptomology even more effectively. These strategies include mindfulness, meditation and progressive muscular relaxation. She would also benefit from building her social engagement and activities. It is usual and common for individuals with PTSD to require ongoing support and psychological intervention.”
On 1 September 2015, the Applicant’s claim was rejected on the basis that she did not have an impairment rating of 20 points under the Impairment Tables – Exhibit 1 T32 p. 207.
This decision was subsequently affirmed on 1 December 2015 by an Authorised Review Officer (ARO) who assessed the Applicant as having an impairment rating of 10 points, consisting of 5 points under Table 3 and 5 points under Table 5 of the Impairment Tables – Exhibit 1 T38 pp.231-239.
When the Applicant’s claim was considered by AAT1, Dr Breheny, the presiding Member, assessed the Applicant as having a total impairment rating of 25 points, with 5 points each being awarded under Tables 1, 2, 3 and 10 points under Table 5.
Dr Breheny found, however, that the Applicant had not satisfied the program of support (POS) requirements and consequently did not meet the qualification provisions for DSP, in particular s 94(1)(c) of the Act – Exhibit 1 T2 pp.12-21.
In reaching this conclusion, Dr Breheny was not satisfied that the Applicant’s mental health condition was fully treated or stabilised, but nevertheless decided not to disturb the findings of the ARO. So far as is relevant Dr Breheny said (Exhibit 1 T 2 p.17 – paras 32-33):
“32 I note that Dr Cashman’s letter of 9 July 2015 recommends further ongoing treatment, which Ms Tosi completed in November 2015. I do not agree with Dr Cashman’s statement that Ms Tosi’s condition was fully treated and stabilised as at 8 July 2015, but I accept that it was fully treated and stabilised by 10 November 2015. I note this date is outside the 13 week period after Ms Tosi lodged her claim on 24 June 2015 (13 weeks to 23 September 2015).
33 The authorised review officer however accepted that Ms Tosi’s mental health condition was fully diagnosed, treated and stabilised as at the time of her claim (or within 13 weeks thereafter) and could therefore be rated on the Impairment Tables. I have decided not to disturb this decision.”
The review hearing was heard on 20 March 2017. The Applicant was self-represented and appeared via telephone. The Respondent was represented by Mr Rick McQuinlan.
The sole issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim, or within 13 weeks thereafter.
BACKGROUND
The Applicant is a single woman currently aged 63 years – Exhibit 1 T28 p.155.
The Applicant has been involved in a number of road traffic incidents that have resulted in her suffering a number of injuries.
The first incident occurred on 27 March 1997 when she was driving south on the Sunshine Motorway and struck another vehicle when travelling at approximately 80 km/h. She was admitted to hospital but an X-ray confirmed no bone injuries. She suffered from neck and back pain and headaches immediately thereafter. She was examined by John Cathcart a physiotherapist, on 18 June 1997. He described her condition at that date as follows (Exhibit 1 T29 p.195):
“On my examination on 18th June 1997 Mrs Tosi had decreased range of motion in her neck. Her forward flexion, extension and rotation left and right were limited to ½ of expected range. She had tightness in her pectoral and upper trapezius muscles. Her upper trapezius was tender on palpation. Mrs Tosi had stiffness and pain on her C2-C7 zygopophyseal joints. Her first rib was stiff, as was her 5th and 6th thoractic spine. Her 4th and 5th lumbar vertebrae were stiff and sore. Her left shoulder was painful on flexion and abduction above her head.”
On 17 May 2011, the Applicant was struck by a motor vehicle while traversing a pedestrian crossing. The Applicant saw the vehicle out of the corner of her eye and started to turn and twist in an attempt to avoid being injured but was struck front on. She was propelled over the vehicle and landed on her right side. She was taken by ambulance to Noosa Hospital, where X-rays were performed and she was placed in a backslab – Exhibit 1 T23 p.133.
On 22 May 2011 the Applicant presented to the Emergency Department of Nambour Hospital with pain around her ankle. She was diagnosed with deep venous thrombosis (DVT) of the lower limb. Dr Lai, Senior House Doctor, provided the following diagnosis (Exhibit 1 T29 p.194):
“57yr old lady referred by her GP for increasing right foot and calf pain. Recent undisplaced fracture of right distal fibula 5/7 ago sustained from a RTA. Seen in Noosa, awaiting outpatient fracture clinic review 24/5/11 in Nambour. Worsening calf pain. Nil cardioresp symptoms. No other risk factors.
PMH – depression on SSRI, NKDA.
o/e – Well. Obs stable. Right leg: moderately swollen foot and ankle. Neurovasc intact. pulses present. Calf soft, non erythematous or swollen but tender on compression. USS Doppler showed DVT of right peroneal vein from origin to ankle.
Plan: 100mg s/c Clexane given. To see GP mane for further clexane and commencement of warfarin for total 3 months as per DVT therapy guidelines. Baseline bloods taken. Backslab reapplied. Patient to keep fracture clinic appointment as planned. Gen advice given.”
At no stage was surgery performed on the Applicant – Exhibit 1 T22 p.133. She did, however, receive regular physiotherapy for her ankle. Despite this, she claims that her right ankle never improved.
In November 2011, she was diagnosed by Dr Peter Winstanley with chronic regional pain syndrome – Exhibit 1 T23 p. 134.
On 31 July 2012, the Applicant was examined by Dr Jeff Peereboom, Orthopaedic Surgeon, for the purposes of a report for RACQ Insurance. His assessment was as follows (Exhibit 1 T23 pp.134-135):
“Avulsion fracture of the tip of the fibula, fracture of the talus, and DVT.
I believe that Ms Tosi does not have Chronic Regional Pain Syndrome.
I believe her pain and swelling, which had seemed disproportionate and therefore resulted in the diagnosis being made, are in fact appropriate for her having had a talus fracture.
I believe her talus fracture has been adequately treated and the immobilisation that she has had, and it has gone on to untie.
I believe that her recovery, however, is going to be defined by this fracture, and also the potential complications that she is going to get relate to this.
Talus fractures are quite significant injuries, and take between 12 to 18 months to really settle down, and I think that is why Ms Tosi has taken till this time to achieve any significant improvement.
I believe her DVT has also compounded this issue as it has lead to greater swelling than would normally be the case. As a result of the talus fracture, Ms Tosi has some restriction in her range of motion in her subtalar joint and her ankle dorsiflexion and plantarflexion.
I believe this going to be a permanent condition.
There is the potential for her to go on to developing arthritis as a result of her fracture, a risk I would rate as moderate…
I believe that the pain and functional capacity has improved consistent with the injuries that Ms Tosi has sustained, and I believe that she will continue to improve for perhaps another four months, but at that stage the improvement will cease and she will be left with a permanent range of motion loss which will equate to an impairment which could be calculated at that time…
She has a mild restriction in her ankle motion which would equate to a 3% whole person impairment. She also has a moderately severe restriction in her inversion and eversion and, using Table 17.12, this equates to a 2% whole person impairment. These would sum together to yield a 5% whole person impairment as a consequence of this injury.”
On 23 January, 29 March, 26 June, 23 September and 7 December 2012, Dr Gary Wright provided Medical Certificates for the Applicant in which she was diagnosed with the temporary condition of reflex sympathetic dystrophy of the right ankle – Exhibit 1 T6, 8, 9, 11 and 12 pp. 74, 79, 81, 88 and 89. Dr Wright certified that this condition was likely to show considerable improvement within two years, but that the Applicant was unable to do her normal work or any other work for more than 8 hours per week.
During the course of 2013/2014 Dr Wright provided a further eight medical certificates for the Applicant – 12 March, 9 June, 2 September and 20 November 2013 and 17 February, 6 May, 23 July and 15 October 2014 – Exhibit 1 T13, 14, 15, 16, 17, 18, 19 and 20 pp.91, 93, 95, 96, 97, 99, 100 and 101. Dr Wright diagnosed the Applicant with persistent swelling and pain of the right ankle and painful shoulders. Again, Dr Wright opined that this was a temporary condition and the Applicant was likely to show considerable improvement within two years.
On 28 June 2012 the Applicant had a face to face meeting with an Employment Services Assessor, who was an accredited exercise physiologist. The Assessor summarised the Applicant’s then medical condition as follows (Exhibit 1 T10 pp.83-84):
“Diagnosis: Reflex sympathetic dystrophy of right ankle
History: injury sustained when hit by a car May 2011. Reports sustaining an outer ankle fracture and was later found to have sustained considerable tendon/ligament damage.
Current Treatment: Under care of Nambour General Hospital orthopaedic clinic, reports continued weekly physiotherapy sessions and daily home exercise program with further specialist review at NGH. Reports using paracetamol for pain relief but states stronger medication has been suggested
Functional impact/Symptoms: persistent (daily) swelling and pain of right ankle. Report standing tolerance of around 30 mins, sitting of 30-60 mins and need to sit with foot raised as well as applying ice and hot compresses regularly throughout the day. Report sleep disturbed by pain after around four hours…”
The Assessor also noted that the Applicant advised “that due to her ankle condition she has difficulty in reliably performing many daily activities including household cleaning, grocery shopping” – Exhibit 1 T10 p.86.
Dr Wright referred the Applicant for an ultrasound of her hips and groin and an X-ray of her right hip. The radiologist, Dr Langford saw the Applicant on 23 July 2014 and provided this report (Exhibit 1 T21 p.107):
“X-RAY RIGHT HIP
Findings:
AP and lateral radiographs submitted.
There is very early joint space narrowing with subchondral sclerosis suggestive of very early OA.
No other abnormality is seen.
ULTRASOUND RIGHT HIP
Findings:
High resolution scanning performed.
There is no evidence of any joint effusion.
The iliopsoas bursa is normal.
The gluteal tendons are thinned, particularly the gluteus medius tendon, suggestive of a partial thickness tear.
No other abnormalities are seen.
The patient is marginally tender over the insertion of the gluteus minimus tendon and the patient may get symptomatic relief from injection of HCLA onto the tendon sheath.”
Subsequently, the Applicant was referred for an ultrasound of her right shoulder which was performed by Dr Buchanan on 16 October 2014. Dr Buchanan made the following comments (Exhibit 1 T21 p.106):
“Imaging features consistent with subacromial bursitis and bursal impingement.
Ultrasound guided injection of the bursa may be of benefit.”
On 30 September 2015, Dr Wright issued the Applicant with a medical certificate which stated (Exhibit 1 T33 p. 210):
“This is to certify that Helen Tosi is suffering PTSD and constant pain in her right leg. She is taking Panadeine Extra for the pain in her leg.
She is currently unable to work at all as her condition has deteriorated. She is physically and mentally unfit for any type of work. She will not be able to participate in 15 hours work a week.”
On 22 October 2015, Dr Wright provided a further medical certificate to Centrelink. He diagnosed the Applicant with reflex sympathetic dystrophy of the right ankle, depression/PTSD and whiplash injury of the neck. Dr Wright was of the view that these conditions were permanent. The symptoms of the ankle injury were persistent swelling and pain of the right ankle, painful shoulders and pain in the right hip area with a partial tendon tear. The Applicant’s depression manifested itself in low mood, flashbacks, anxiety and involuntary eye blinking. Finally, the whiplash injury manifested symptoms of painful neck, headaches and tingling in the hands – Exhibit 1 T 34 p.212. Dr Wright also referred to a CT scan performed the same day which showed that the Applicant was suffering moderate degenerative changes within the mid to lower cervical region – Exhibit 1 T34 p.213.
LEGISLATION
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (the Determination), which was made pursuant to s 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the that the Tables are function based rather than diagnosis based (Cl 5(2)(b)), and describe functional activities, abilities, symptoms and limitations – Cl 5(2)(c). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions – Cl 5(2)(d).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
more likely than not, to persist for more than two years – Cl 6 (4).
In determining whether a condition has been fully diagnosed and treated, the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part 2 Clause 4 of the Social Security (Administration) Act 1999, which provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
CONSIDERATION
The task of the Tribunal is to assess the Applicant’s claim for the DSP on her medical condition at the date of her claim or within 13 weeks thereafter. In this matter, therefore, the relevant period is 24 June 2015 to 23 September 2015.
This does not mean, however, that the Tribunal is restricted to medical reports and other evidence that was produced prior to the expiration of the relevant period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123. Moreover, as the Tribunal’s mandate is to stand in the shoes of the original decision-maker and consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, material not previously considered, provided it is relevant and shines light on the Applicant’s state of health during the relevant period – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ.
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
The Respondent accepts that the Applicant suffers from impairments for the purposes of s 94(1)(a) of the Act – Secretary’s Statement of Issues, Facts & Contentions (SSIFC) para 33. Having regard to the evidence before the Tribunal, I agree that concession was properly made.
Do the Applicant’s impairments attract 20 points or more under the Impairment Tables?
1. PTSD, Depression and Anxiety – Table 5
The Respondent contends that the Applicant’s mental health condition was fully diagnosed but not fully treated or stabilised during the relevant period, and, accordingly, an impairment rating cannot be assigned – SSFIC para 42.
The thrust of the Respondent’s contention is that although the Respondent’s condition was diagnosed during the relevant period by an appropriately qualified medical practitioner (Dr Cashman, a clinical psychologist), there is no evidence that the Applicant received appropriate treatment for PTSD, such as a prolonged period of psychological counselling in conjunction with pharmacological intervention.
The material before the Tribunal is quite clear. Following the traffic accident in 2011, the Applicant has suffered from depression and PTSD, which has manifested itself in poor concentration, social anxiety, short attention span and fatigue.
Mental health function is assessed under Table 5 of the Impairment Tables. The Introduction to Table 5 provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner and that self-reporting of symptoms alone is insufficient. An appropriately qualified medical practitioner includes a psychiatrist. If the diagnosis is not made by a psychiatrist, then there must be evidence from a clinical psychologist.
The Applicant was referred to Dr Claire Cashman, a clinical psychologist, in May 2015. Her report of 9 July 2015 is quoted above. As previously noted, Dr Cashman opined that the Applicant required ongoing treatment to address her PTSD and anxiety, and while then stable, would benefit from ongoing management and treatment – Exhibit 1 T29 p.193.
On 10 November 2015, almost two months after the expiration of the relevant period, Dr Cashman issued an updated report (Exhibit 1 T35 pp.215-216):
“I have met with Helen for 8 sessions to address her symptoms and provide her with the appropriate skills to effectively manage her condition. She has been able to utilise these strategies to manage her anxiety. She does still experience anxiety and symptoms related to her PTSD. This is very usual and common for individual’s (sic) with such a diagnosis. Usually treatment is not able to fully eradicate all of the symptoms but provides a basis to make the symptoms manageable and less intrusive.
Overall, I feel that Helen has engaged well in the treatment process and developed the skills to manage her symptoms. Therefore, her treatment is considered complete in regards to her PTSD symptoms. It is common for individuals with PTSD to require intermittent psychological input over time to manage their condition and an exacerbation in their symptoms. This is due to the debilitating nature of this condition and that it can be re-triggered by events and situations. The PTSD with her physical difficulties, means that Helen is medically unfit to work and would have considerable difficulty gaining employment at this current time. Her symptoms mean that she is not able to function in a work role to the ability that would be expected by a potential employer and she would experience significant and deliberating (sic) anxiety. This would exacerbate her condition and potentially lead to a deterioration in her mental health condition.”
A clear reading of both of Dr Cashman’s reports leads to the conclusion that the Applicant’s mental health condition was diagnosed during the relevant period but had not been fully treated. I accept that by 10 November 2015 this condition had been fully diagnosed, treated and stabilised and at that time points could have been assigned under the Impairment Tables. I also agree with the Respondent (SSFIC para 52) that if points could have been awarded, a rating of 10 points would have been appropriate.
Dr Cashman wrote to the Applicant on 19 September 2016 and said, inter alia (Exhibit 4 p.2): “I do not feel that your symptoms meet the criteria for the severe category on all the domains outlined. I did discuss with you a comparison with another patient to help to understand the reason I felt that your symptoms were not in this category.”
While this letter shines a light on the more recent state of the Applicant’s mental health function and does not deal with that function during the relevant period, it nonetheless is supportive of the view that if an impairment rating could have been assigned, it would be more likely to be 10 points rather than 20.
Accordingly, as the Applicant’s mental health condition was not fully diagnosed, treated and stabilised during the relevant period I am unable to assign any points under Table 5.
2. Right Ankle Injuries and CRPS – Tables 1 and 3
The Respondent contends (SSFIC paras 58-59) that the Applicant’s right ankle condition was assessed by AAT1 under both Tables 1 (Functions requiring Physical Exertion and Stamina) and 3 (Lower Limb Function), which amounted to double counting. The Tribunal’s attention was drawn to subsection 10(4) of the Rules which prohibits awarding impairment ratings for the same impairment under more than one Table.
The Introduction to Table 3 states that it is to be used when the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. In comparison, Table 1 is to be used when the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
Rule 10(4) of the Determination provides that 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.
The Tribunal agrees with the Respondent that the descriptors in Table 3 take into account the effects of the Applicant’s pain on her ability to perform physical activities involving her lower limbs, and it would result in double counting if the same impairments were also counted under Table 1. The Applicant’s ankle condition does not cause, on the basis of the material before the Tribunal, a separate functional impact on exertion and stamina that has not already been assessed under Table 3.
Rule 10(2) provides that the Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise. Here, Table 3 specifically deals with the functional impairments of performing activities with the Applicant’s legs and feet.
Further, this principle applies even if it is determined that no points can be awarded under the primary Table. The principle of double counting is not predicated on a positive assignment of points under an Impairment Table.
Accordingly, no points can be awarded to the Applicant under Table 1.
The Respondent concedes that the Applicant’s ankle condition was fully diagnosed, treated and stabilised during the relevant period. However, the Respondent contends that nil points can be awarded because the Applicant is able to stand for more than 10 minutes and does not need to use a lower limb prosthesis or a walking stick – SSFIC paras 55-57.
When applying Table 3 with respect to mild functional impairment there are two qualifiers, both of which must be met.
The first qualifier requires at least one of three stated conditions to be applicable to the Applicant’s lower limb condition.
The second and additional qualifier requires at least one of two stated conditions to be applicable. The first is that a person is unable to stand for more than 10 minutes and the second is that a person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
On 18 November 2015, the Applicant had a face to face meeting with a Job Capacity Assessor who is a registered occupational therapist. The Assessor noted the following information provided by the Applicant (Exhibit 1 T37 p.224):
“Unable to stand more than 1 hour, unable to walk more than 30 minutes without rest. Has to elevate leg frequently, unable to run, squat. Ms Tosi reported that she is able to walk around for 1 hour, stand for 30 minutes and has difficulty with uneven ground. She reported that she will sit and elevate her leg bur reported no real swelling in leg. She reported ongoing ache in foot and random sharp pains up leg. Ms Tosi reported that she is able to complete her domestic activities with pacing. She reported that she could not comment on stair climbing ability as does not have stairs.”
In his reasons, Dr Breheny set out the following evidence given by the Applicant (Exhibit 1 T2 p.15):
“20 Ms Tosi’s evidence is that she could walk up stairs, but only slowly and she does not do it very often. She is able to stand for about 15 minutes and can walk around a supermarket. She has only limited side flexion of her foot, but does not use a walking stick. Ms Tosi noted that she is fatigued and has to take ‘Nana naps’ during the day. She tries to avoid heavy household chores and does household chores slowly over a period of a few days.”
Although Dr Breheny awarded the Applicant five points, he made the following observation (p.16):
“23 I note to achieve such a rating the person must also be unable to stand for more than 10 minutes or use a lower limb prosthesis or walking stick. There is no medical evidence to support this. Dr Wright notes Ms Tosi can stand for about an hour and Ms Tosi notes that she does not use a walking stick, but I will accept the authorised review officer’s conclusion and find that a rating of 5 points on Table 3 is appropriate.”
Rule 11(1)(a) provides that an impairment rating can only be assigned in accordance with the rating points in each Table. A Tribunal Member does not have the discretion to assign points under an Impairment Table when the evidentiary condition precedent for awarding points is absent. It is a threshold requirement for awarding 5 points under Table 3 that either the Applicant cannot stand for more than 10 minutes or requires the use of a lower limb prosthesis or walking stick. If neither of those apply, then no points can be awarded.
In this matter, the evidence discloses that the Applicant, during the relevant period, could stand for more than 10 minutes and did not need to use a lower limb prosthesis or a walking stick. Accordingly, no points can be assigned under Table 3.
3. Bursitis Both Shoulders – Table 2
The Respondent accepts that the Applicant’s right shoulder condition is fully diagnosed, treated and stabilised but contends that her left shoulder condition was not fully diagnosed during the relevant period given the lack of corroborating imaging reports or specialist assessments – SSFIC para 62. Accordingly, the Respondent contends that the extent to which the Applicant’s right shoulder condition impacts on her upper limb function cannot be separated from her left shoulder condition and an impairment rating under Table 2 cannot be reliably assigned.
With respect, this submission is too broad, and, if accepted, would necessarily result in an unfair and artificial decision. The Applicant’s shoulder condition has been the subject of numerous examinations and treatments since 1997, with both her left and right shoulder being attended to. The medical evidence before the Tribunal is not totally consistent. In particular, the report of Mr Ballhaus, a physiotherapist, of 2 December 2015, suggests that the Applicant’s shoulder condition originates from the cervical spine and due to the degenerative nature of the condition leaves few treatment options from a physiotherapy point of view – Exhibit 1 T39 p. 241. Nonetheless Dr Wright stated on 11 March 2016 that this condition was fully diagnosed, treated and stabilised as at October 2014, and suggested an impairment rating of 5 points – Exhibit 1 T42 p.257
In addition, it is clear that the Applicant has refused certain medications designed to improve her condition, such as cortisone injections – Exhibit 1 T37 p.223.
The relevant Impairment Table for the Applicant’s shoulder condition is Table 2 – Upper Limb Function. In order to be awarded 5 points under this Table, a person can manage most daily activities involving the use of hands and arms, but has difficulty with most of the following:
(a)Picking up heavier objects;
(b)Handling very small objects;
(c)Doing up buttons;
(d)Reaching up or out to pick up objects.
Dr Wright stated that the Applicant had difficulty picking up heavy objects, reaching out and overhead activities – Exhibit 1 T42 p.257.
The problem confronting the Tribunal is the uncontested evidence that the Applicant gave to AAT1. Dr Breheny said (Exhibit 1 T2 p.18):
“Ms Tosi said that she was able to handle small objects, do up buttons or reach up and out to pick up objects. She has some difficulties picking up heavier objects.”
A further difficulty is that Dr Wright, in his Medical Report of 13 July 2015 in support of the Applicant’s DSP claim under the heading “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function”, noted “Bursitis both shoulders” – Exhibit 1 T29 p.190.
Accordingly, the Applicant can meet two of the four criteria at the 5 point level, but must meet at least three to be assigned points. In these circumstances no points can be assigned.
4. Whiplash/Neck Condition – Table 4
The Applicant has been involved in a number of traffic accidents over an extended period of time, and it would appear that she had suffered whiplash injuries to her neck on more than one occasion – Exhibit 1 T1 p.5.
At the time the Applicant lodged her DSP claim, Dr Wright stated in his medical report that the whiplash injury to her neck from the previous car accident was well managed and caused minimal or limited impact on her ability to function – Exhibit 1 T30 p.190.
Further, the Applicant had another traffic accident in October 2015 which exacerbated her condition – Exhibit 1 T34 p.213; T39 p.241. However, the accident occurred outside of the relevant period.
The subsequent reports of both Dr Wright (Exhibit 1 T42 p.257) and Mr Ballhaus (p. 262) date the onset of the whiplash condition at its current level of impairment from October 2015 at the earliest. This indicates that although the Applicant had suffered whiplash injuries in the past, they were, at the relevant period, not sufficient to generate an award of points under Table 4.
In these circumstances, no points can be awarded under Table 4.
5. Right Gluteus Medius Tendon Tear – Table 3
Dr Wright mentioned this condition in his medical report of 13 July 2015 under the heading of conditions that are generally well managed and that cause minimal or limited impact on ability to function – Exhibit 1 T29 p.190.
The Applicant informed AAT1 that she had physiotherapy for this condition after her 2011 traffic accident during the course of 2011/2012 and was given exercises to do at home. She testified that she had not seen a physiotherapist again for this condition – Exhibit 1 T2 p.19.
Dr Breheny at AAT1 was not persuaded that this condition was fully treated and stabilised at the relevant period and he did not award any points – Exhibit 1 T2 p.19. I agree with this conclusion based on the material before the Tribunal.
Overall Impairment Rating
The overall impairment rating is zero points under the Impairment Tables during the relevant period. In these circumstances it is not necessary to consider whether the Applicant had a continuing inability to work.
CONCLUSION
The result in this matter is very clear and the reviewable decision must be affirmed.
Yet despite the very clear result there are some troubling matters.
The Applicant is an older woman. Her medical condition is clearly deteriorating. She is a woman with limited means and suffering from a number of ailments.
Her family have attested to how her condition has deteriorated, and the deleterious impact this has had both on her and on her wider family.
Her general practitioner for many years has charted her medical situation, and it is one of slow decline.
It could be said, in common parlance, that on this review she has fallen through the legal cracks in the floor. The law pertaining to DSP applications is strict and provides little if no discretion to a decision maker.
DECISION
The decision under review is affirmed.
I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Sosso
.....................................[sgd]...................................
Associate
Dated: 21 April 2017
Date of hearing: 20 March 2017 Applicant: By telephone Advocate for the Respondent: Rick McQuinlan Solicitors for the Respondent: Department of Human Services
Key Legal Topics
Areas of Law
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Appeal
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Judicial Review
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Procedural Fairness
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Statutory Construction
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