Tremaine and Secretary, Department of Social Services (Social services second review)

Tremaine and Secretary, Department of Social Services (Social services second review) [2019] AATA 813 (9 May 2019)
Division:GENERAL DIVISION
File Number: 2018/3175
Re:Sandra Tremaine
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:9 May 2019
Place:Brisbane

The Tribunal affirms the decision under review.
............................[SGD]..........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
9 May 2019
INTRODUCTION AND CLAIMS HISTORY

On 8 November 2017 Mrs Sandra Tremaine (“Mrs Tremaine”) lodged a claim for Disability Support Pension (“DSP”) and described her medical conditions and their impacts as follows:[1]
spinal fusion OP C5/6 neck Jan 2014, cervical myelopathy, Romberg’s positive, neuropathic pain in the upper and lower limbs, shoulders, head, hands, difficulty walking and balance, have to use walking stick, difficulty sitting standing carrying and manipulating objects, difficulty sustaining overhead activities and turning head in all directions. Severe headaches. No heavy lifting, osteoarthritis. Rash on legs from medication permanently.
[1] Exhibit 1, T Documents, T 48, pages 221 – 252, Mrs Tremaine’s Claim for DSP dated 8 November 2017.
On 18 November 2017 Mrs Tremaine’s medical conditions were assessed by an exercise physiologist engaged by the Department of Human Services (“Centrelink”). The exercise physiologist recommended that Mrs Tremaine be referred for a job capacity assessment (“JCA”) as medical evidence provided for Mrs Tremaine’s DSP claim indicated there had been a change in symptoms and functional impacts since the JCA report submitted on
[2] Exhibit 1, T Documents, T 49, pages 253 – 254, DSP Medical Assessment Recommendation dated 18 November 2017.
7 September 2016.[2]
A further medical assessment was undertaken on 1 February 2018 by a psychologist. The psychologist also recommended that a further JCA was required.[3]
[3] Exhibit 1, T Documents, T 50, pages 255 – 256, DSP Medical Assessment Recommendation dated 1 February 2018.
A JCA was undertaken with Mrs Tremaine face-to-face on 26 February 2018 by a registered psychologist and registered occupational therapist. The JCA reported that Mrs Tremaine’s:[4]
(a)spinal disorder was not fully diagnosed, treated or stabilised; and
(b)rheumatoid arthritis was fully diagnosed but not fully treated or fully stabilised.
[4] Exhibit 1, T Documents, T 51, pages 257 – 264, JCA report dated 6 March 2018.
As a result of the JCA report, on 7 March 2018 Centrelink decided to reject Mrs Tremaine’s claim for DSP.[5]
[5] Exhibit 1, T Documents, T 52, pages 265 – 266, Centrelink notice rejection of DSP claim dated 7 March 2018.
A further medical assessment was undertaken by a psychologist on 3 April 2018. The psychologist again recommended to Centrelink that Ms Tremaine’s DSP application be rejected on the grounds that her conditions were not fully diagnosed, not fully treated and not fully stabilised.[6]
[6] Exhibit 1, T Documents, T 54, pages 271 – 272, DSP Medical Assessment Recommendation dated 3 April 2018.
Mrs Tremaine sought a review of Centrelink’s decision to reject her claim for the DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mrs Tremaine’s medical conditions were not fully diagnosed, treated and stabilised and did not attract 20 points or more under the Impairment Tables.[7]
[7] Exhibit 1, T Documents, T 55, pages 273 – 278, Decision of ARO dated 9 April 2018.
On 9 April 2018 Mrs Tremaine lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[8] The SSCSD rejected

Mrs Tremaine’s claim and affirmed the ARO’s decision on 17 May 2018.[9]
[8] Exhibit 1, T Documents, T 56, pages 279 – 280, Request for Statement dated 9 April 2018.
[9] Exhibit 1, T Documents, T 2, pages 3 – 9, SSCSD’s Decision and Reasons for Decision dated 17 May 2018.
Mrs Tremaine sought a review of the SSCSD’s decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T 1, pages 1 - 2, Mrs Tremaine’s Application for Review dated 12 June 2018.
Prior to this hearing the Secretary arranged for the Health Professional Advisory Unit (“HPAU”) of the Department to undertake a file review of Mrs Tremaine’s matter and to liaise with her practitioners in order to advise Centrelink accordingly.
The medical practitioner that undertook the HPAU review was Dr Mieka Tabart. Dr Tabart holds general registration with the Medical Board of Australia and has a Masters degree in Occupational Medicine. For the purpose of the review Dr Tabart reviewed the medical evidence available and had discussions with Drs Alexandra Klestov, Kyaw Tun, Ingrid Hutton and Cheng-Liang Chou. In Dr Tabart’s opinion:[11]
(a)the cervical myelopathy was permanent but causing minimal or mild impact only;
(b)the rheumatoid arthritis was not fully treated or stabilised by the end of the Qualification Period.
[11] Exhibit 3, Report of Dr Tabart dated 5 October 2018.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mrs Tremaine must have a physical, intellectual or psychiatric impairment;
(b)Mrs Tremaine’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[12] and
(c)Mrs Tremaine must have a continuing inability to work.
(emphasis added)
[12] A legislative instrument made under the Act: see s 26(1) of the Act.
The date for determining whether Mrs Tremaine meets the Section 94 Requirements is the date of the claim (in this instance as at 8 November 2017), unless Mrs Tremaine becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[13] Therefore, in order to qualify for DSP, Mrs Tremaine must have met the Section 94 Requirements between 8 November 2017 and 7 February 2018 (“Qualification Period”).
[13] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mrs Tremaine’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[14]
DID MRS TREMAINE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A) OF THE ACT?
[14] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[15]
Mrs Tremaine’s Medical Conditions
[15] Determination, s 3.
Spinal Condition
In 2013 Mrs Tremaine had an MRI of her cervical spine which indicated:[16]
Cord contact and deformation at C5-6, mild parenchymal atrophy suggesting long-standing stenosis. Bilateral formainal stenoses [sic] at C5-C6 with right-sided foraminal stenosis at C4-C5 and left sided foraminal stenosis at C3-C4. Impingement of the relevant nerve roots.
[16] Exhibit 4, Submissions of Mrs Tremaine, Attachment – MRI report dated 26 November 2013.
In 2014 Mrs Tremaine had a C5/6 ACDF (Anterior Cervical Discectomy and Fusion) cord decompression surgery at the Princess Alexandra Hospital.[17]
[17] Exhibit 1, T Documents, T 46, page 216, Patient Health Summary.
In October 2016 Mrs Tremaine had an MRI of her:
(a)cervical spine which indicated that she had “multilevel uncovertebral facet degenerative changes…with foraminal stenosis [sic] which is worst on the right at C6–7 with high-grade impingement of the existing right C7 nerve root”;[18] and
(b)lumbar spine which indicated:[19]
1.   Multilevel degenerative discogenic disease.
2.   Facet arthrosis particularly prominent at the bilateral L4/L5…and bilateral L5/S1 levels.
3.   Minor L4/L5 spinal canal stenosis.
4.   Focal contact of the exiting right L3 nerve at L3/ L4.
[18]    Exhibit 1, T Documents, T 41, pages 205 - 206, MRI report dated 19 October 2016.
[19]    Exhibit 1, T Documents, T 40, pages 203 - 204, MRI report dated 10 October 2016.
Dr John Roe, Orthopaedic Resident Medical Officer for Dr Kate Campbell, Orthopaedic Surgeon, reported in March 2017 that:[20]
(a)it had been two and half years post-surgery for the cervical myelopathy;
(b)over the past year there had been some mild progression in Mrs Tremaine’s symptoms;
(c)Mrs Tremaine tends to use a walking stick to mobilise but is able to ambulate without any aids;
(d)Mrs Tremaine is Romberg’s positive; and
(e)it was his impression “that there was no specific spinal reason for her current symptoms: however, given the longstanding and progressive nature of cervical myelopathy we need to take a protracted course with her review. As you well know cervical myelopathy is a generally progressive condition, secondary to degeneration in the cervical spine classically”.
[20] Exhibit 1, T Documents, T 44, page 209, Report of Dr Roe, dated 3 March 2017.
Dr David Brookes, Orthopaedic Registrar for Dr Kate Campbell, Orthopaedic Surgeon, reported in September 2017 that there were no obvious mechanical causes for

Mrs Tremaine’s complained of symptoms so they had decided to refer her to a neurologist.[21]
[21] Exhibit 12, Report of Dr Brooks dated 21 September 2017.
On 4 June 2018 Mrs Tremaine attended the Department of Neurology Clinic at the Princess Alexandra Hospital. Dr Cheng-Liang Chou, Consultant Neurologist, reported that:[22]
(a)since surgery there were no signs of recurrent cervical myelopathy;
(b)Mrs Tremaine still has frequent neck pain and lower back pain;
(c)Mrs Tremaine is still seeking confirmation of her “borderline positive rheumatoid arthritis” and told Dr Chu that a blood screening test revealed no significant evidence for this;
(d)Mrs Tremaine is currently on Targin;
(e)“after comprehensive neurological examination, Sandra’s cervical myelopathy remains stable of the condition after surgery. There are no fresh or newly developed deficits confirmed or detected at this stage. Regarding her neurological sequalae of the cervical myelopathy, this mainly presented as spasticity and intermittent radiating pain. Meanwhile there is no solid confirmation of rheumatoid arthritis at this stage”; and
(f)he suggested regular orthopaedic clinic follow-up with whole spine imaging and that she undergo rehabilitation with the physiotherapist for her persistent spasticity.
[22] Exhibit 6, Report of Dr Chou dated 4 June 2018.
Rheumatoid Arthritis
Dr Hutton, Rheumatologist reported on 21 February 2017 that she was treating

Mrs Tremaine for rheumatoid arthritis and that she was not yet on proper therapy because she was waiting on possible surgery that she would need for her neck.[23]
[23] Exhibit 1, T Documents, T 43, page 208, Report of Dr Hutton dated 21 February 2017.
Dr Hutton told Dr Tabart in October 2018 that:[24]
(a)she last saw Mrs Tremaine in February 2017 and at the time Mrs Tremaine did not want to start any treatment;
(b)it was reasonable to wait and not commence treatment prior to surgery; and
(c)she would have expected good response and control of the disease with commencement of treatment and that the aim of treatment is remission and return of usual function.
[24] Exhibit 3, Report of Dr Tabart dated 5 October 2018.
On 4 June 2018 Dr Chou reported that there was no solid confirmation of rheumatoid arthritis at this stage.[25]
[25] Exhibit 6, Report of Dr Chu dated 4 June 2018.
On 29 June 2018 Mrs Tremaine was reviewed by Dr Klestov, Consultant Rheumatologist. Dr Klestov reported that:[26]
(a)Mrs Tremaine’s presentation “was predominantly a manifestation of Generalised Osteoarthritis, especially affecting the spine – associated soft tissue rheumatism is causing significant difficulties for the patient”;
(b)he prescribed Plaquenil and Prednisone, weight reduction strategies, cessation of smoking, Panadol Osteo / Nurofen and fish oil supplements;
(c)he also arranged for additional investigations to be conducted such as vitamin D and folate levels; and
(d)Mrs Tremaine was to be reviewed in four month’s time.
[26] Exhibit 5, Report of Dr Klestov dated 29 June 2018.
Conclusion on Impairment
The Secretary accepts that Mrs Tremaine suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[27]
[27] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 12 December 2018, paragraph 5.16.
In light of the medical evidence the Tribunal finds that at the Qualification Date

Mrs Tremaine suffered from impairments for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DOES MRS TREMAINE’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[28] They are function based[29] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[30]
[28] Determination, s 4(2) and 5(2)(a).
[29] Determination, s 5(2)(b) and (c).
[30] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[31]
(a)Mrs Tremaine’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
(emphasis added)
[31] Determination, see s 6(3).
Mrs Tremaine’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[32]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[32] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[33] the following must be considered:[34]
(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.
[33] For the purposes of ss 6(4)(a) and (b) of the Determination.
[34] Determination, see s 6(5).
A condition is fully stabilised[35] if:[36]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment;[37] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[35] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[36] Determination, see s 6(6).
[37] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairment(s) are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables Mrs Tremaine’s medical history, in relation to the condition causing the Impairments, must be considered.[38]
[38] Determination, see s 6(2).
SPINAL CONDITION
It is not in dispute that Mrs Tremaine has cervical myelopathy and that the condition was fully diagnosed, treated and stabilised prior to the Qualification Period.
The medical evidence, supports a finding that Mrs Tremaine’s Spinal Condition was permanent as required by the Act. Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
The level of impact of Mrs Tremaine’s Spinal Impairment has to be assessed against the descriptors[39] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[40]
[39] Determination, see ss 3 and 5(3).
[40] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[41]
[41] Determination, see s 6(1).
Pursuant to the Determination the following information:
(a)must be taken into account in applying the Tables:[42]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account in applying the Tables:[43]
(i)symptoms reported by Mrs Tremaine in relation to her condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mrs Tremaine’s local community.
[42] Determination, see s 7.
[43] Determination, see s 8.
Which Tables are appropriate are determined by:[44]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[44] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[45]
[45] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[46]
[46] Determination, see s 11(1).

The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[47]
[47] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[48]
[48] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The relevant table is Table 4 of the Determination, which deals with spinal function.
The introduction to Table 4 provides that:

Introduction to Table 4

·    Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·    Self-report of symptoms alone is insufficient.

·    There must be corroborating evidence of the person’s impairment.

·    Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·    In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

The Secretary submits that an appropriate Impairment Rating for Mrs Tremaine’s Spinal Impairment is zero points and relies on:[49]
(a)Dr Roe’s report which stated the Applicant experienced weakness “predominantly in her right arm and had some clumsiness in her hands. She is now tending to use a walking stick to mobilise as she feels safer that way; however, she is able to ambulate without any aids at all”.
(b)Dr Brooks’ report which stated that on examination the Applicant was found to be ataxic and to have a positive Romberg’s test. It was noted there was increased brachioradialis reflexes in both arms and no weakness.
(c)Dr Chou’s reporting to Dr Tabart that “there were residual symptoms of cervical myelopathy, e.g. spasticity – especially lower limbs” but there was “no significant impact on functioning from the residual symptoms”. Dr Chou considered that there was not a large impact on functioning from cervical myelopathy, but “a mild degree of spasticity only”.
(d)Dr Klestov’s opinion that “the pain and overall presentation unlikely to be as a result of the cervical myelopathy and surgery because of the more complex and long-standing clinical picture, more complex and longstanding than the neck problems.” Dr Klestov noted the Applicant had reported the onset of musculoskeletal pain since her early thirties and “would have expected pain associated with a pinched nerve to have resolved with the cervical spine surgery”.
[49] See Exhibit 2, Secretary's Statement of Facts and Contentions dated12 December 2018, paragraphs 5.21 - 5.22.
Mrs Tremaine submitted at the hearing that her Spinal Impairment is having a severe impairment impact on activities involving her spinal function and that her impairment warrants an Impairment Rating of 20 points because she cannot look up properly and has such restricted neck movement. At the SSCSD hearing Mrs Tremaine said:[50]
[she had] “pain in her neck and shoulders. She can carry light groceries. She has bad balance… She cannot do overhead activities. She can wash her hair with her arms up, if she bends forward…”.
[50] Exhibit 1, T Documents, T 2, pages 3 – 9, SSCSD’s Decision and Reasons for Decision dated 17 May 2018.
Mrs Tremaine gave evidence at the hearing that:
“I can’t go places with my husband because I can’t walk the distances. I can’t – it’s horrible. I can’t go and visit people because I have to sit in chairs that lay back like that. I can’t go out and visit people like that. There’s so much – Community Solutions tried – I did a six week course with them. They tried to teach me on the computer. I can’t look at the computer. It doesn’t matter whether I stand up and look down, whether you sit and put it up, I can’t.”
The Descriptors for an Impairment Rating of zero, 5 or 10 points are:

53.     0
There is no functional impact on activities involving spinal function.

(1)      The person can:

(a)      bend down to pick a light object off the floor (e.g. a piece of paper); and

(b)      turn their trunk from side to side; and

(c)      turn their head to look to the sides or upwards.

5
There is a mild functional impact on activities involving spinal function.

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

10
There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20
There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

Evidence Identifying the Loss of Function at the Qualification Date

Mrs Tremaine gave evidence before the Tribunal regarding the impact of the condition on her ability to function. Pursuant to the Determination, the Tribunal can only assign an impairment rating based on corroborating evidence.
In September 2016 Dr Tun advised the JCA that Mrs Tremaine would be able to sit for 30 minutes but would have difficulty sustaining overhead activities, difficulty moving her head in all directions and her ability to look over her shoulder while driving would be impacted.[51]
[51] Exhibit 1, T Documents, T 39, pages 190 -202, JCA Report dated 7 September 2016.
By early 2018 Dr Chou reported that there were “no significant impact on functioning from the residual symptoms” of the Mrs Tremaine’s Spinal Condition.[52]
[52] Exhibit 3, Report of Dr Tabart dated 5 October 2018.
In May 2018 Dr Tun reported that Mrs Tremaine was unable to undertake overhead activities.[53] In October 2018 Dr Tun told Dr Tabart that Mrs Tremaine “says” she cannot lift her arms above her shoulder and cannot extend her neck, she uses a walking stick when walking, and told him she no longer drives.[54]
[53] Exhibit 13, Questionnaire completed by Dr Tun dated 15 May 2018.
[54] Exhibit 3, Report of Dr Tabart dated 5 October 2018.
Dr Tun’s reports would indicate that based on Mrs Tremaine’s self-report there may have been a deterioration in her condition, however the Tribunal is bound to consider the impact the condition was having on Mrs Tremaine during the Qualification Period.
There is some inconsistency between the medical reports. The Tribunal prefers the opinion of the medical specialists over that of Dr Tun because of their specialist qualifications and because Dr Tun’s reports are based largely on Ms Tremaine’s self-report. The treating medical specialists found either no mechanical reason for
[55] Determination, see s 11(1).
Ms Tremaine’s complained of symptoms or that the residual symptoms of her Spinal Impairment were only having a mild impact on her ability to function. In those circumstances the Impairment would fall between zero and 5 points. Pursuant to section 11(1) of the Determination, if an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[55]
Therefore the Tribunal finds that an Impairment Rating of zero points is appropriate for Mrs Tremaine’s Spinal Impairment under Table 4.
IS MRS TREMAINE’S RHEUMATOID ARTHRITIS IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary did not dispute that Mrs Tremaine has been diagnosed with rheumatoid arthritis. Although the Tribunal notes that Dr Chau did not consider this diagnosis was definitive. Dr Klestov also reported to Dr Tabart that there was no rheumatoid arthritis but possibly osteoarthritis or some other connective tissue disorder. The Tribunal is not satisfied that Ms Tremaine’s rheumatoid condition was fully diagnosed and finds that at as the Qualification Period it was a presumptive diagnosis.
Even if the Tribunal accepted that Mrs Tremaine rheumatoid condition was fully diagnosed, the condition had not been fully treated. Dr Tun confirmed with Dr Tabart that he had not filled any scripts for the treatment recommended by Dr Hutton or by the current rheumatologist, Dr Klestov, and was not sure if Mrs Tremaine has taken these medications at all since seeing Dr Klestov in June 2018. Mrs Tremaine acknowledges that she did not take the medication recommended by Dr Klestov but she had an allergic reaction. Further, no treatment was entertained until after the Qualification Period.
Taking the above into consideration, Mrs Tremaine’s “rheumatoid” condition cannot be considered permanent as required by the Act and no Impairment Rating can be assigned.
At the hearing Mrs Tremaine submitted that it was her cervical myelopathy that was causing all of her problems not the rheumatoid condition. However, the specialist medical evidence available does not support this assertion.
Once Ms Tremaine can obtain a more definitive diagnosis of her ongoing problems, and then has the appropriate reasonable treatment, it is open to her to lodge a new DSP claim.
WERE MRS TREMAINE’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B) OF THE ACT?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
The total Impairment Rating for Mrs Tremaine’s permanent Impairments was zero points.
DID MRS TREMAINE HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I) OF THE ACT?
The Tribunal has found Mrs Tremaine’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary to consider whether Mrs Tremaine had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mrs Tremaine’s claim fails. Her impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result she did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.............................[SGD].........................................
Associate
Dated: 9 May 2019

Date of hearing: 5 March 2019

Date reserved: 2 April 2019

Applicant: In person

Advocate for the Respondent: Ms Jacky Vetter, Lawyer

Solicitors for the Respondent: Sparke Helmore Lawyers

53. 0	There is no functional impact on activities involving spinal function. (1) The person can: (a) bend down to pick a light object off the floor (e.g. a piece of paper); and (b) turn their trunk from side to side; and (c) turn their head to look to the sides or upwards.
5	There is a mild* functional impact on activities involving spinal function*. (1) The person has some difficulty in: (a) activities over head height (e.g. activities requiring the person to look upwards); or (b) bending to knee level and straightening up again without difficulty; or (c) turning their trunk or moving their head (e.g. to look to the sides or upwards).
10	There is a moderate* functional impact on activities involving spinal function*. (1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies: (a) the person is unable to sustain overhead activities (e.g. accessing items over head height); or (b) the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or (c) the person is unable to bend forward to pick up a light object placed at knee height; or (d) the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
20	There is a severe* functional impact on activities involving spinal function*. (1) The person is unable to: (a) perform any overhead activities; or (b) turn their head, or bend their neck, without moving their trunk; or (c) bend forward to pick up a light object from a desk or table; or (d) remain seated for at least 10 minutes.

[2019] AATA 813

9 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Procedural Fairness

Date of hearing:	5 March 2019
Date reserved:	2 April 2019
Applicant:	In person
Advocate for the Respondent:	Ms Jacky Vetter, Lawyer
Solicitors for the Respondent:	Sparke Helmore Lawyers