TTVN and Secretary, Department of Social Services (Social services second review)
[2017] AATA 2414
•1 December 2017
TTVN and Secretary, Department of Social Services (Social services second review) [2017] AATA 2414 (1 December 2017)
Division:GENERAL DIVISION
File Number(s):2017/2498
Re:TTVN
APPLICANT
AndSecretary, Department of Social Services
RESPONDENT
DECISIONLO
Tribunal:Mr S. Webb, Member
Date:1 December 2017
Place:Canberra
The decision under review is set aside, in place thereof the Tribunal decides that TTVN qualified for grant of Disability Support Pension.
........................................................................
Mr S. Webb, Member
SOCIAL SECURITY – claim for disability support pension – impairments – treatment of medical conditions continuing and planned – no legislative requirement for specialist medical assessment or review – requirement for treatment to be considered in context of medical history – inappropriate to speculate about treatment options – requirement for evidence - meaning of ‘reasonable treatment’ – assessment of impairments resulting from ‘permanent’ medical condition – need for corroborating evidence - ratings under the Impairment Tables – impairments are of 20 or more points – no severe impairment –participation in a program of support – 18 month minimum participation threshold - poor quality of evidence from third party - suspensions and exemptions –participating in program of support immediately before claim - assessable impairments prevented improvement in capacity through ‘the program’ – actively participated in a program of support – unable to undertake any work ‘independently of a program of support’ within two years - continuing inability to work – decision set aside
Social Security Act 1991, s 94
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130
Secretary, Department of Family and Community Services v Michael [2001] FCA 1811
REASONS FOR DECISION
Mr S. Webb, Member
1 December 2017
From childhood, there has been a great deal of trauma in TTVN’s life. These experiences affected her health. In consequence, TTVN has a number of chronic medical conditions that impair her functional capacity to work. After ceasing work, TTVN claimed Disability Support Pension (DSP). The claim was rejected by a delegate of the Secretary. This decision was affirmed on review, including by this Tribunal at first instance. TTVN applied for further review.
I should say immediately that the case involves personal matters of great sensitivity that bear upon TTVN’s mental health. I issued orders to protect TTVN’s privacy. Subject to further orders, the document in Exhibits 1 and 13 are not to be published and access to them is restricted to officers of this Tribunal and those representing the Secretary for the purposes of these proceedings. Furthermore, it is appropriate for TTVN’s identity to be protected. It is for this reason she is referred to as TTVN.
In the document in Exhibit 1, TTVN raises allegations of child sexual abuse and other matters of a criminal nature. These are very serious allegations against people who are not named but may, inferentially, be identified. They are matters that TTVN should report or refer to relevant authorities for investigation if that has not already been done.
Issues arose at the hearing in respect of documents. Some documents had not been given to the Secretary. Other documents provided by the Secretary required further explication. A medical report referred to in the documents had not been given to the Tribunal by the Secretary. The Secretary requested adjournment of the hearing. The hearing was held over to allow time for the Secretary to properly consider the new materials and to place any further materials before the Tribunal. In the result, when the hearing resumed, no further documents or submissions were provided by the Secretary.
I do not propose to set out the detailed history of trauma TTVN has experienced since childhood. Those details are set out in Exhibit 1. It is sufficient to observe that the traumatic experiences involved sexual abuse and domestic violence. These experiences began when TTVN was a young child and her childhood experience of family life was very difficult.
In or about 2002, TTVN became depressed after the death of two family members the previous year.
In or about 2005, TTVN was physically assaulted and kicked when returning home from a restaurant.
On TTVN’s evidence,[1] in or about June 2006, she fell down a flight of stairs and injured her back, neck and left upper limb. I note that there is also reference to this fall occurring in 2008.[2] Which of these dates is correct I am unable to determine, but little turns on this. I will proceed on the basis that TTVN’s evidence is correct.
[1] Exhibit 1.
[2] See Exhibit 4, page 1 for example.
In and after March 2008, TTVN claimed and was paid Newstart Allowance in varying amounts,[3] subject to earnings in employment.[4]
[3] T22 folio 165.
[4] T22 folio 166.
At various times thereafter, TTVN participated in programs of support.[5]
[5] T21.
On 23 September 2008, a Job Capacity Assessment was undertaken and reported by a registered occupational therapist.[6]
[6] T6.
On 27 May 2010, a further Job Capacity Assessment was undertaken and reported by a rehabilitation counsellor.[7]
[7] T7.
In November 2014, TTVN’s employment came to an end.[8] She has not since worked.
[8] Ibid and T10 folio 118
On 28 June 2016, TTVN informed Centrelink of her intention to claim DSP. A notice was issued.[9]
[9] T9.
TTVN lodged a DSP claim on 12 July 2016.[10]
[10] T10.
On 5 August 2016, a Job Capacity Assessment was undertaken by a registered occupational therapist, who prepared a report on 18 August 2016.[11]
[11] T14.
On 22 August 2016, TTVN’s DSP claim was rejected.[12]
[12] T15.
This decision was affirmed by an Authorised Review Officer[13] and by this Tribunal, at first instance.[14]
[13] T18
[14] T2.
On 26 April 2017, TTVN applied for further review.[15]
[15] T1.
ISSUES
TTVN’s DSP claim is to be determined under s 94 of the Social Security Act 1991 (the Act). Among other things, there are three key tests that must be satisfied:
(a)TTVN must have a physical, intellectual or psychiatric impairment;
(b)the impairment must be of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination); and
(c)TTVN must have a continuing inability to work.
Furthermore, for DSP to be payable from 28 June 2016 under TTVN’s claim, each of these tests must be satisfied on the day the DSP claim was made (12 July 2016), or within the following 13 weeks thereafter (by 11 October 2016) (the qualification period). Otherwise, TTVN’s claim will fail and DSP will not be payable under the present claim.
Even though, for this reason, the Tribunal must direct attention to the qualification period, in doing so it must have regard to all relevant materials placed before it. This may include materials, in the form of medical reports for example, that were produced after the qualification period ended insofar as these materials bear upon the matters to be decided with reference to that period.
It may be trite to observe that materials produced before the qualification period, too, may be relevantly taken into account when assessing a claimant’s functional impairments and the permanence of medical conditions from which they arise as of the date of the DSP claim and during the qualification period.
IMPAIRMENT
The Secretary concedes that TTVN has impairments and meets the first qualification requirement for DSP. This is correct.
The available evidence establishes, on the balance of probabilities, that TTVN suffered from the following impairments during the qualification period -
(a)lumbar spine impairment resulting from chronic pain caused by post-traumatic and degenerative pathology and arthropathy at the L4/L5 and L5/S1 levels of her lumbar spine;[16]
(b)lower limb impairment resulting from neuropathic pain and sensory loss caused by post-traumatic and degenerative lumbar spine pathology;[17]
(c)cervical spine impairment resulting from chronic left side neck pain and arthritis;[18]
(d)upper limb impairment resulting from post-traumatic left hand pain;[19]
(e)mental health impairment resulting from post-traumatic and pain-related depression and anxiety;[20]
(f)impairment of functions requiring physical exertion and stamina resulting from asthma;[21] and
(g)impairment of hearing function as a result of bilateral sensorineural hearing loss.
[16] See T10 folio 117, T13 folio 125, T16 folio 134, T14 folio 127 and Exhibit 4, page 2, for example.
[17] Ibid.
[18] T7 folio 85 and Exhibit 4, page 2,
[19] T10 folio 117 and Exhibit 4, page 2.
[20] See T6 folio 78, T7 folio 83, T10 folio 117, T11 folio 122, T16 folio 134, for example.
[21] See T11 folio 122 and T13 folio 124, for example.
There is also evidence that TTVN suffered from eczema, sinusitis, hypertension, tinnitus, excessive weight gain and an eye condition. But the present materials are not sufficient to establish the precise nature and extent of any resulting functional impairments resulting from these conditions, if any, during the qualification period or subsequently.
ASSESSMENT OF IMPAIRMENTS
The next step is to determine whether the impairments attract a rating of 20 or more points under the Impairment Determination. For this purpose, the Impairment Determination sets out rules that must be applied.
The rules provide that an impairment may only be assigned a rating under the Impairment Tables if it results from a ‘permanent’ medical condition, and the impairment is likely to last for more than two years. A ‘permanent’ medical condition is one that has been ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ that is likely to persist for more than two years. If a medical condition is not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised, it cannot be taken as ‘permanent’ and the functional impact of any resulting impairment cannot be assigned points under the Impairment Tables.
Lumbar spine impairment
The Secretary accepts that TTVN’s lumbar spine impairment results from a low back condition that was fully diagnosed during or before the qualification period. This is correct.
On 28 July 2016, Dr Gibson, TTVN’s treating general practitioner, issued a medical certificate in which he states that the onset of “Advanced osteoarthritis L4/5 and L5/S1” is “2002”.[22] The doctor also issued a letter that same day in which he sets out a more detailed diagnosis – “Osteoarthritis; spine; lumbar – advanced degenerative facet joint arthropathy at L4/5” “L5/S1 there is advanced degenerative disc disease”.[23] The precise pathology is evident in the lumbar spine CT scan that was taken on 12 September 2013.[24] The diagnosis is confirmed and expanded upon by Dr Thong, a pain specialist physician, in his report of 15 August 2017,[25] well after the qualification period.
[22] T12 folio 123.
[23] T13 folio 124.
[24] T8 folio 87.
[25] Exhibit 4.
The Secretary asserts that the low back condition, however described, was not ‘fully treated’ and ‘fully stabilised’ during the qualification period. In the Secretary’s submission, evidence that Dr Gibson was planning to “consider cortisone injections into back”[26] stands against any such conclusion.
[26] T13 folio 125.
Additionally, the Secretary argues that the condition cannot be taken to be ‘fully treated’ absent referral to a specialist. In the Secretary’s submission, the fact that Dr Gibson subsequently referred TTVN to Dr Thong on 16 May 2017[27] militates against finding the low back condition was ‘fully treated’.
[27] Exhibit 10.
Furthermore, as I comprehend the Secretary’s submissions, where a condition has been found to be fully treated in the past but has subsequently become worse, the worsened condition cannot be taken to be fully treated unless the deterioration has been subject of further treatment, including specialist assessment.
These submissions raise some difficult issues.
It does not follow in all cases, and it should not be assumed, that a medical condition cannot be found to be ‘fully treated’ simply because a claimant has not undertaken a particular form of treatment, or some other form of treatment is planned or possible. When dealing with matters of this kind, I do not think it is appropriate for the decision maker to engage in speculation about what additional treatment for a medical condition might include in the particular circumstances. The rules require a careful assessment of the person’s medical history relating to the condition, including all the matters set out in s 6(5) of the Impairment Determination, when determining if the condition is ‘fully treated’.
Take the example of a person with an incurable degenerative condition of long standing that causes pain. If the person’s pain is managed by prescribed analgesic medication, should the condition be taken as not ‘fully treated’ if the treating doctor considers a different form of pain management medication? Clearly enough, if there is evidence that the new pain management medication is expected to result in significant functional improvement and symptomatic relief, such that the nature or extent of impairment might be reduced within 2 years, the answer might be Yes. But if the new medication is required for a different purpose, such as replacing an opioid medication with a non-opioid equivalent, or increasing the strength of medication to address elevated symptoms or worsening of the condition, without expectation of significant functional improvement or symptomatic relief, the answer might be No.
When making a determination of this kind, it is not appropriate to speculate about treatment options that might be considered appropriate, or that might be but have not yet been undertaken. Evidence is required. For example, in circumstances where a person has a longstanding degenerative condition that has been treated conservatively, and the available medical evidence does not suggest that other forms of treatment are likely to be beneficial, it is not appropriate to engage in speculation about other possible treatments. The matter is to be decided on the available evidence and, if further investigation is required, then on the basis of the results of such further investigation.
With respect to the proposition that a medical condition cannot be taken to be ‘fully treated’ for the purposes of s 6 of the Impairment Determination on grounds that a specialist referral and assessment has not been made, this, too, requires a careful examination of the person’s medical history of the particular condition, having regard to the matters set out in s 6(5). This is a matter for medical evidence. Absent evidence of any intent or plan to refer the person for specialist assessment or review, it is difficult to see how an adverse finding could be made on the question of the condition being ‘fully treated’. To my mind, it is not appropriate for the decision maker to engage in speculation about what another doctor might suggest or whether referral to another doctor might be appropriate in the particular circumstances; nor do I think it is appropriate for a decision-maker to speculate about what the treating doctor should have done.
I do not accept the proposition that a specialist medical assessment is required, generally, before a medical condition that has been diagnosed and treated by a claimant’s doctor can be taken to be ‘fully treated’. There is no such requirement in the legislation. And there is no requirement for a person to obtain specialist medical review in order to make a proper claim for DSP.
Furthermore, I do not accept the proposition that, in circumstances where a degenerative condition of long standing worsens, the person must have a recent assessment or review by a medical specialist before the condition may be taken to be ‘permanent’. Once again, there is no legislative requirement that this should occur. In circumstances where a chronic condition deteriorates or becomes worse, it should not be assumed without evidence that the deterioration or worsening might be alleviated or addressed by further medical treatment. This is a matter for evaluation of the available evidence in each case.
The assessment of impairment under the Impairment Determination is subject to rules, which include a requirement for corroborating evidence of the person’s impairment. Examples of the kinds of corroborating evidence are set out in the preamble to each Table. This includes reference to “a report from a medical specialist confirming the diagnosis” of the underlying condition. But it does not follow that a report from a medical specialist is required or mandatory when determining if the medical condition is ‘permanent’ for the purposes of s 6(3) of the Impairment Determination. A report from a medical specialist is but one of several examples of the kinds of corroborating evidence that might be provided by a claimant.
Matters of this kind, relating to medical treatment in the assessment of a claim for DSP, were considered by a Full Court of the Federal Court of Australia in Secretary, Department of Employment and Workplace Relations v Harris.[28] Even though this case was decided under previous legislation which has since been repealed, the observations made are apposite here –
[28] [2007] FCAFC 130.
30 His Honour [Giles J] found it troubling that an applicant with a long standing diagnosed condition being treated in a conventional fashion was rejected for benefit simply on the basis that further examination by another medical practitioner might suggest some other diagnosis or some other treatment. An applicant for benefit should present with a properly prepared application supported by a treating doctor. His Honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion. His Honour said (at [18]):
That is an unsatisfactory situation bearing in mind the capacity of, and the resources available to, applicants for this kind of benefit. In my opinion, such speculation could not be a proper basis for a decision to reject this applicant’s claim based upon chronic pain. The same can be said of the claim based upon depression. If further investigations were required, it was up to the Department to organise them.
He went on to observe that the AAT stood in the shoes of the Department and was in precisely the same situation as the decision maker. It could have arranged investigation of the claim under the provisions of s 33 of the AAT Act. This having been said, his Honour did not go so far as to say that the AAT was obliged in this case to carry out an investigation but rather that, absent investigations, it should have made a decision on the material before it without taking account of hypothetical third party investigations.
…
34 …His Honour said that the AAT should decide the matter on the evidence before it rather than reject an application on a speculative basis. If further investigations were required it had the power to arrange for them to be done. To say that was not to impose upon the AAT an obligation to carry out any such investigation.”
These are matters of fact and degree that must be assessed under the applicable legislation on the available medical evidence in each case. And in this case, I am not persuaded that any further investigation is required.
It is necessary to carefully consider the medical history of TTVN’s low back condition, including treatment undertaken during and prior to the qualification period, as well as treatment that was then ongoing or planned in the next two years.
On Dr Gibson’s evidence, the condition began in 2002. In or about June 2006, the condition was exacerbated when TTVN fell down some stairs, probably resulting in a L5/S1 disc protrusion. It appears likely that a CT scan of the lumbar spine was taken (which is not in the present materials) and the condition was treated with anti-inflammatory and analgesic medications.[29]
[29] T6 folio 80.
On 17 September 2008, Dr Raji, TTVN’s then treating general practitioner, provided a medical certificate in which he refers to “lower back pain” of “uncertain” prognosis that was treated with “analgesics”.[30] It appears that Dr Raji provided a medical report on or about 24 September 2008. Unfortunately, this report is not presently before the Tribunal. Nevertheless, it appears that Dr Raji changed TTVN’s medications, and ceased treatment with anti-inflammatory medications, shortly prior to this date.
[30] T5 folio 76.
On 12 September 2013, Dr Sewell, a radiologist, provided a report to Dr Rosul, TTVN’s then treating general practitioner, in respect of a further lumbar spine CT scan.[31] This report clearly identifies –
“… moderately advanced degenerative narrowing of the lumbrosacral disc and early narrowing of L4/5. There are well marked osteoarthritic changes in the L4/5 facet joints.
There is less marked but still prominent degenerative facet joint arthropathy at L5/S1. Minimal degenerative spondylolisthesis at this level (no more than 2mm forward slip of the body of L4 on L5).
…
L5/S1: …
There is a little degenerative narrowing of the intervertebral foramen on the left with slight abutment on the left L5 nerve root. There is, however, no evidence of nerve root entrapment…”
[31] T8 folio 87.
On 28 July 2016, Dr Gibson provided a medical certificate which includes the following –
“Treatment. Please describe the patient’s treatment regime. Include past, current and planned treatment. medication, physiotherapy, injections”[32]
[32] T12 folio 123.
It is not clear whether these forms of treatment were planned or had been undertaken in the past. Nevertheless, in a brief report of the same date, Dr Gibson included the following –
“Plan
To improve antidepressant medication
To consider cortisone injections to back
Prognosis
Poor. The length of time of the suffering likits [sic – limits] the improvement obtainable.””[33]
[33] T13 folio 125.
Dr Gibson was not called to give oral evidence, so the doctor’s intentions and expectations in respect of the plan to consider cortisone injections remain unclear. There is no evidence that cortisone injections were undertaken thereafter.
On 26 August 2016, Dr Sinha, a consultant psychiatrist, reported a diagnosis of “Chronic Pain (Severe Osteoarthritis)” among other things. He set out then present medications and said “She has also tried counselling. She has also seen Pain Management Clinic without much relief”.[34]
[34] T16 folio 134.
On 16 May 2017, Dr Gibson referred TTVN to Dr Thong and said –
“Thank you for seeing [TTVN] who suffers chroni [sic] low back pain. Her assessment for invalid pension requires her to see a pain specilaist [sic] for confirmation and management of her low back pain.”[35]
[35] Exhibit 10.
On 15 August 2017, Dr Thong provided a detailed report,[36] setting out the medical history and his clinical findings on examination, as well as diagnoses and a summary of consequential effects. In respect of treatment, Dr Thong said this –
“…
6. Because of the nature of injury and pathology and time passed since the injury, there is no advantage to surgical treatment.
7. There are no pain interventions that will provide significant prolong [sic] relief to reduce the pain.
8. Medications will provide partial reduction in pain but will not enable work capacity, again, because of the nature of pain, time passed since injury.
9. The conditions have been present for more than 2 years, likely longer than 2 years, unlikely to improve and potentially will deteriorate.
10. treatment is limited to medications and will continue to be adjusted over time but will unlikely provide the relief needed to enter the work force for required number of hours and reliably perform duties.
…”[37]
[36] Exhibit 4.
[37] Ibid, page 2.
Considering all of the relevant materials, including the extensive Medicare and Pharmaceutical Benefits Scheme records in Exhibit 13 (which do no more than establish a conservative treatment regimen without referral to a pain or spine specialist), I am reasonably satisfied that TTVN’s low back condition and resulting chronic pain symptomatology is of long-standing. It is degenerative in nature, and associated with frank lumbar spine pathology resulting from an injury in or about 2006. Dr Gibson and Dr Thong agree that the length of time since the injury in 2006 limits the improvement that is possible with treatment. Treatment is in the form of medication, with previous physiotherapy, probable hydrotherapy (on TTVN’s evidence) and anti-inflammatory medications. Surgical interventions are contra-indicated by the nature of the condition and the effluxion of time since the injury. And the prognosis is of likely deterioration. In that context, I am satisfied that TTVN’s low back condition can be taken to have been ‘fully treated’ during the qualification period for the purposes of the Impairment Determination. That is so even though the ‘plan’ to consider injection of steroids into TTVN’s lumbar spine (if that is what Dr Gibson had in mind) had not been undertaken.
I am not persuaded that Dr Gibson’s references to “injections” and “cortisone injections to back” should be construed as a treatment plan that was likely to have a beneficial effect on TTVN’s lumbar spine condition or resulting impairments.
TTVN’s evidence is that it was she who raised the possibility of cortisone injection treatment with Dr Gibson, but the doctor did not think it would be beneficial and no injections were subsequently undertaken. The 18 August 2016 Job Capacity Assessment report sets out a different explanation –
“Medical evidence supplied by Dr Gibson on the 28.07.16 reported a recommendation of cortisone injections. The client advised that she has been reluctant to consider this, although as the pain is so severe she sees no other option.”[38]
[38] T14 folio 127.
Whichever explanation is correct, there is not a scintilla of evidence that injections of this kind would be expected to slow, halt or reverse the debilitating effects and chronic pain symptoms (or the progress and likely deterioration) of TTVN’s degenerative osteoarthritic disease and the frank pathology in her lumbar spine. Dr Thong’s evidence, more than one year later, is very clear on this point.
As for the Secretary’s proposition that TTVN had not consulted a pain specialist prior to or during the qualification period, this is not consistent with the present evidence and it is not made out. As I have said, on 26 August 2016, within the qualification period) Dr Sinha reported that TTVN had “seen Pain Management Clinic without much relief”.[39] Precisely what Dr Sinha’s comment refers to is not clear, although TTVN gave evidence of similar kind. In a treatment context, the point of referral to a pain management specialist can be understood in the context of assessing and exploring treatment options to better control or cope with pain. It may be inferred that is what occurred in TTVN’s case when she attended the pain management clinic, and there was no resulting change in the treatment regimen Dr Gibson prescribed.
[39] T16 folio 134.
The Secretary contends that TTVN’s low back condition was not ‘fully stabilised’ during the qualification period.
This contention is not made out on the present evidence. The weight of the medical evidence addressing this point is to the contrary.
The test to be applied is set out in s 6(6) of the Impairment Determination -
(6) For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b) the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Note: For reasonable treatment see subsection 6(7).
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
I am satisfied that TTVN had undertaken reasonable treatment prescribed by Dr Gibson and any further ‘reasonable treatment’ would be is unlikely to result in significant functional improvement sufficient to enable her to undertake work in the next 2 years. It is not presently established that cortisone injections into TTVN’s lumbar spine, or any other form of surgical treatment, would be within the meaning of ‘reasonable treatment’ set out in s 6(7) of the Impairment Determination rules.
It is quite clear on the reports of Dr Gibson, Dr Thong and Dr Sinha that improvement in TTVN’s low back condition is unlikely with further treatment. Dr Thong’s report makes clear that surgical treatment, in which I would include steroidal injections to the spine, is of no advantage because of the nature of the injury and resulting pathology and the amount of time that has elapsed. Even though Dr Thong’s report is well after the qualification period I must consider, his assessment may equally be applied to that period – the present evidence does not establish that any significant change occurred in TTVN’s lumbar spine condition and resulting impairments in the period from the qualification period to 15 August 2017. Even though TTVN’s evidence is that her condition became worse over time, including since she ceased work in 2014, Dr Gibson’s report of the nature and extent of her impairment on 28 July 2016 is quite consistent with Dr Thong’s report more than one year later, on 15 August 2017. This suggests that no significant change occurred over the intervening period.
The Secretary makes much of Dr Gibson’s referral of TTVN to Dr Thong, a pain specialist, on 17 May 2017, well after the qualification period. There are three things to say about this.
Firstly, Dr Gibson’s referral makes clear that the referral is required for “assessment for invalid pension” and “confirmation and management of her low back pain”.[40] On this evidence it appears that the referral was made, primarily, for purposes relating to TTVN’s DSP claim.
[40] Exhibit 10.
Secondly, as I have said, there is no requirement in the legislation for specialist assessment – this is a matter for the person’s treating doctors to assess in the particular circumstances. The introductory preamble to Table 4 in the Impairment Determination requires that ‘There must be corroborating evidence of the person’s impairment’ and sets out ‘Examples of corroborating evidence for the purpose of the Table’ which include ‘a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment’. It is not consistent with the express language of the legislation, or with its purposes, to construe this inclusive list of corroborating evidence as a fixed requirement for specialist referral in all cases. And I would not construe it in this way in the particular circumstances of this case.
Thirdly, it is not established that referral to Dr Thong (or any other pain management specialist or program beyond that which had already occurred, as reported by Dr Sinha) is within the defined meaning of ‘reasonable treatment’. As can be seen, for treatment to be ‘reasonable treatment’ each of the criteria must be satisfied. It must be established by evidence that the treatment can reliably be expected to result in a substantial improvement in functional capacity. Presently, there is not a skerrick of evidence that referral to Dr Thong (or any other pain specialist) would meet this threshold.
The Secretary contends that the referral should be considered through the lens of the qualification period, as something then in prospect. Even if that is correct, and I accept that it is, absent evidence that the referral could reliably be expected to result in significant function improvement, it would not come within the meaning of ‘reasonable treatment’. It is not appropriate to simply assume that referral to a pain specialist, or any other kind of medical specialist, will be within the meaning of ‘reasonable treatment’ – evidence is required. In TTVN’s case, the referral Dr Gibson made and the resulting report of Dr Thong confirm that the referral is not ‘reasonable treatment’. There is no evidence that Dr Gibson expected any improvement in TTVN’s functional capacity to result from the referral to Dr Thong. It is clear enough that the doctor made the referral for the purposes of TTVN’s DSP claim. Dr Thong’s report confirms that no other medical treatment would be likely to result in functional improvement.
That being so, the test in s 6(6)(b) would be satisfied as no significant functional improvement was expected to result from any further ‘reasonable treatment’.
Thus, in respect of the qualification period, I am satisfied that TTVN’s low back condition was fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years.
As I am satisfied that the resulting impairment of TTVN’s lumbar spine and lower limb function was also likely to persist without improvement over the two years following the qualification period, the next step is to assign a rating under the applicable Impairment Table.
The impairment is to be assessed under Table 4 relating to spinal function. The Table sets out a scale of points and descriptors –
Considering the evidence in respect of TTVN’s lumbar spine impairment, including her own evidence at the hearing, I am satisfied that she is able to sit and drive a car for periods of up to 20 minutes. TTVN is able to bend forward to pick up a light object from coffee table height and she can remain seated for at least 10 minutes in a comfortable chair, but only for 5 minutes or less if she is sitting on a hard chair – she explained that the pain causes her to adjust her position frequently and keep weight from her left side. She does not need assistance from another person to rise to standing from a chair, even though she has some difficulty with this. She has difficulty with overhead activities, particularly on the left, but she can reach to grasp items from a shelf at head height with her right arm and she is able to wash her hair. She has difficulty turn her head to the left - this is a particular difficulty when driving.
Her account is broadly consistent with and corroborated by the report of Dr Gibson on 28 July 2016 and the Job Capacity Assessment report of 18 August 2016.
The impairment falls between the descriptors for a moderate functional impact at the 10 point and a severe functional impact at the 20 point level.
Points
Descriptors
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.
Under s 11(1)(c) of the Impairment Determination, the lower rating must be assigned. From this it follows that TTVN’s lumbar spine impairment attracts a rating of 10 points under this Table.
Lower limb impairment
TTVN’s lower limb impairment is caused by her lumbar spine condition. As I have found her lumbar spine condition to be ‘permanent’, and I am satisfied that her resulting lower limb impairment was likely to persist for more than two years from the qualification period, her lower limb impairment is to be assessed under Table 3.
On the evidence of Dr Gibson, Dr Thong and the Job Capacity Assessment report on 18 August 2016, I am satisfied that her lower limb impairment is in the form of reduced function as a result of radicular pain especially in the left buttock, but extending into the left leg to the ankle.
Considering the present evidence in respect of this impairment, I accept that TTVN cannot walk far outside her home. She is able to drive to her local shops using her manual car, but only on a good day – otherwise she is not able to operate the clutch with her left leg. She is able to walk from her car into a shopping centre, and to walk around the centre if she can lean on a trolley for support. She requires assistance to use public bus transport as she cannot climb steps of stairs without assistance. She told me that she could use a taxi, but she cannot afford to do so. She explained that she may be able to stand for up to 15 minutes “but this would be pushing it”.
TTVN’s evidence is largely consistent with and corroborated by Dr Gibson’s 28 July 2016 report and the Job Capacity Assessment report of 18 August 2016.
Considering the available evidence and the descriptors at the mild, moderate and severe functional impact levels, TTVN’s lower limb impairment is consistent with a moderate functional impact at the 10 point level. The descriptors in s 1(a) at the 20 point level are not satisfied.
Points
Descriptors
5
There is a mild functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c) the person has some difficulty climbing stairs; and
(2) At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10
There is a moderate functional impact on activities using lower limbs.
(1) At least one of the following applies:
(a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b) the person is unable to use stairs or steps without assistance; or
(c) the person is unable to stand for more than 5 minutes; and
(2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3) This impairment rating level includes a person who can:
(a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20
There is a severe functional impact on activities using lower limbs.
(1) The person:
(a) is unable to do any of the following:
(i) walk around a shopping centre or supermarket without assistance;
(ii) walk from the carpark into a shopping centre or supermarket without assistance;
(iii) stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
(2) This impairment rating level includes a person who requires assistance to:
(a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or
(b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.
TTVN’s lower limb impairment attracts a rating of 10 points under Table 3.
Cervical spine impairment
There is but little evidence of TTVN’s cervical spine impairment and the condition from which it results in the materials before the Tribunal.
I accept that TTVN has chronic neck pain. Doing the best with the available materials, on Dr Thong’s report of “Chronic neck pain from the injury 9 years ago”,[41] it is probable that she injured her cervical spine when she fell down some stairs. Dr Thong described the symptoms and diagnosis in the following way –
“Chronic left neck pain, constantly aching, responds to heat therapy and fluctuates. This flares as soon as she tries to look behind to the left, looks down or up. This indicates arthritis affecting the neck.”[42]
[41] Exhibit 4, page 2.
[42] Ibid, page 1.
Job Capacity Assessment reports on 23 September 2008 and 27 May 2010 include references to a treating doctor’s report by Dr Raji, TTVN’s then treating general practitioner.[43] The report is not in the materials before the Tribunal. I allowed time for the report to be produced, but it was not forthcoming. This is unfortunate as, on the Job Capacity Assessment reports, Dr Raji’s report addresses TTVN’s neck pain. The Assessment reports include the following reference –
“The Treating doctor (on the 24.09.08) reported that the client gets joint pain in the neck, shoulders and lower back he also reported she has joint stiffness in the mornings.”[44]
[43] T6 and T7.
[44] T6 folio 80 and T7 folio 85.
On this material, it is clear enough that the history of neck pain Dr Thong reported on 15 August 2017 is consistent with the (absent) report of Dr Raji from September 2008. This is also consistent with TTVN’s own account of persisting symptoms in her neck after the fall in 2006.
The Secretary contends that the references to Dr Raji’s report should be given little or no weight. This is because Dr Raji’s report is not before the Tribunal and the references to it in the Job Capacity Assessment reports are in the form of hearsay. This is a curious submission as Dr Raji’s report would have been provided to Centrelink and, plainly enough, it was a key element of the Job Capacity Assessments that were reported to Centrelink. No explanation has been provided why Dr Raji’s report has not been given to the Tribunal. As to the question of weight, I would not discount the weight that should be given to the Job Capacity Assessment reports on grounds that one of the source documents on which each Assessor relied is not presently before the Tribunal. The reports are solid evidence that TTVN experienced neck pain and arthritis in September 2008 and May 2010, and that in each instance the Assessor concluded that the arthritis was (then) fully diagnosed, fully treated and fully stabilised and therefore ‘permanent’.
In the Secretary’s submission, these conclusions drawn by Job Capacity Assessors in 2008 and 2010 should not be relied upon or given any weight for two reasons – the reports are old and they were made under different legislation. The proposition that the assessments were made under legislative instruments that were in force at the time is correct. It is also correct that the Impairment Determination did not come into effect until 6 December 2011 and from that date new tests applied in respect of the assessment of impairments.
Nevertheless, the change in legislation does not bear upon the clear evidence that TTVN suffered from arthritis that affected her neck in 2008 and 2010. The findings made at those times that this condition was permanent is medically consistent with Dr Thong’s report in 2017.
There is a significant difficulty for TTVN, however – there is no other reference to her neck condition in the materials before the Tribunal. Dr Gibson did not include reference to this condition or to neck symptoms in his reports or in the medical certificate he issued on 28 July 2016.[45] There is no radiological evidence in respect of TTVN’s cervical spine. Simply put, I am unable to assess the nature or extent of any impairment of TTVN’s cervical spine function, or the extent to which her neck condition had been treated and stabilised during the qualification period. It is not presently established that the impairment reported by Dr Thong in August 2017 was present to the same degree during the qualification period.
[45] T11, T12 and T13.
For this reason, I am unable to conclude that TTVN’s cervical spine impairment resulted from a ‘permanent’ medical condition and was likely to persist for more than two years.
Even if I arrived at a different conclusion on that point, the present evidence does not establish that a rating of 20 points would be assigned under Table 4 as the extent of functional impact of her neck impairment is not clear at all during the qualification period.
Upper limb impairment
For very similar reasons, TTVN’s upper limb impairment cannot be assigned a rating under the Impairment Determination – the precise nature of the condition causing the impairment, and the extent of the impairment, is not established by medical evidence relevant to the qualification period.
I note TTVN’s evidence and Dr Thong’s report of left hand impairment –
“Left hand clumsiness, tends to unwittingly drop items” and “Moderate left hand physical impairment from an injury sustained 9 years ago falling down a set of stairs. This affects using a computer, holding items, two handed carrying, left hand carrying and grasping.”[46]
[46] See Exhibit 4, page 2.
On this evidence, it is probable that TTVN injury her left hand when she fell down some stairs in or about 2006.
This notwithstanding, the present materials are not sufficient to enable a proper assessment to be made of the diagnosis of TTVN’s left hand condition or any treatment that had been obtained for this prior to or during the qualification period. Dr Gibson does not refer to this condition or any related impairment.
That being so, TTVN’s left hand and upper limb impairment cannot be assigned a rating.
I note in passing that reference was made in the Job Capacity Assessment reports in September 2008 and May 2010 to shoulder joint symptoms or arthritis. No subsequent medical materials refer to any such condition. For this reason, I can go no further on that point.
Mental health impairment
It is quite clear that TTVN has significant mental health issues, and she has done so for many years.
On 26 August 2016, Dr Sinha confirmed diagnoses of severe anxiety disorder and major depression.[47] This was largely consistent with Dr Gibson’s diagnosis of major depression, as reported in his medical certificate dated 28 July 2016. It appears that treatment was ongoing with the anti-depressant Zoloft over several years and that the dose increased from 100mg to 200mg some time before the qualification period. Nevertheless, it is clear enough that further treatment was recommended by Dr Gibson in or about May 2017, when he referred TTVN for psychological counselling (although the document in Exhibit 8 is not dated) and to Dr Sinha for further assessment,[48] and a GP Management Plan – Mental Health was established on 19 June 2017.[49]
[47] T16 folio 134.
[48] Exhibit 9.
[49] Exhibit 11.
The existence of TTVN’s anxiety and depression conditions is reported by Job Capacity Assessors who reported on 23 September 2008 and 27 May 2010.[50] At those times, the Assessors reported that these conditions were fully diagnosed, treated and stabilised (albeit under different legislation).
[50] T6 folios 78 and 80; T7 folios 83 and 85.
To my mind, it is clear enough that TTVN has suffered from depression for many years. I accept that she has obtained psychological counselling for a brief period in the past and, otherwise, this condition has been treated with anti-depressant medications by her treating GP.
On 8 June 2017, Dr Sinha certified that TTVN’s major depression was “Temporary” and estimated that the symptoms would persist for “13-24 months”.[51] Dr Sinha was not called to give oral evidence and I can go no further with this.
[51] T20 folio 147.
From this, it is open to infer that the condition was not ‘permanent’ during the qualification period.
It appears that on or about 8 June 2017 Dr Sinha changed his diagnosis of TTVN’s anxiety disorder to one of post-traumatic stress disorder “PTSD”.[52] He certified that this condition was “Permanent (likely to persist for 2 years or more)” and that current and future treatment involved counselling.
[52] Ibid; Exhibit 3 refers.
As I understand TTVN’s evidence, it was only recently that she felt capable of providing her treating doctors with a full account of her traumatic history.[53] If this is correct, it may explain why Dr Sinha changed his diagnosis.
[53] Exhibit 1 refers.
On balance, even though I accept that TTVN has suffered from anxiety and depression for many years, I am unable to find that her previously diagnosed severe anxiety was ‘permanent’ for the purposes of the Impairment Determination. On Dr Sinha’s more recent materials, it appears that the correct diagnosis is post-traumatic stress disorder, and that diagnosis, albeit in the spectrum of anxiety disorders, was not made until well after the qualification period. Furthermore, the present evidence does not establish that treatment in the form of counselling, as recommended by Dr Sinha, had been undertaken to the extent that the condition could be taken to be ‘fully treated’ or ‘fully stabilised’ during the qualification period.
From this it follows, unfortunately for TTVN, that her mental health impairment cannot be assigned a rating under the Impairment Determination.
Impairment of functions requiring physical exertion and stamina
The Secretary concedes that TTVN suffers from asthma and that this condition was fully diagnosed, fully treated and fully stabilised before the qualification period. In the Secretary’s submission, however, the resulting impairment cannot be assigned a rating as there is insufficient evidence on which to base necessary findings.
TTVN explained that she experiences unpredictable asthma-related breathing difficulties at least two or three times each week. These are managed by use of puffers (Ventolin and Seratide), although she has been hospitalised with severe breathing difficulties in the past.
Dr Gibson’s evidence is that TTVN has suffered from asthma since 7 April 2005 and from sinusitis from 26 March 2012.[54] In his 28 July 2016 report, the doctor did not report the nature, extent or frequency of asthma symptoms. Dr Gibson’s report is referred to in the Job Capacity Assessment report on 5 August 2016, but no additional information is provided. Dr Sinha included a diagnosis of asthma in his 26 August 2016 report. Beyond this, there is very scant evidence relating to TTVN’s asthma. Job Capacity Assessment reports from September 2008 and May 2010 do not refer to TTVN’s asthma condition.
[54] T11 folio 122.
Considering that available evidence, I am satisfied that TTVN’s asthma was diagnosed in 2005 and it has been treated with Ventolin and other puffers. I accept that the condition is reasonably well managed in this way, at least to the extent that Dr Gibson did not report any present symptoms or resulting functional impairment in his 28 July 2016 report and medical certificate.
It may well be that TTVN’s asthma has a functional impact on her undertaking activities that require physical exertion and stamina. But the extent of any such impact is not established by the present materials. There is simply insufficient medical evidence to make a proper assessment of any functional impact of this condition during the qualification period.
For these reasons, even if it is accepted that TTVN’s asthma condition was ‘permanent’ during the qualification period such that a rating could be assigned under Table 1, the present materials are insufficient for that purpose.
Hearing impairment
It can be accepted that TTVN has hearing loss and tinnitus.
On 18 August 2017, Mr Healy, an audiologist, reported that TTVN “has mild to severe sloping bilateral sensorineural hearing loss, she needs hearing aids to hear clearly in most situations in everyday living”.[55] The hearing loss was assessed by Bay Audio in 2010 and hearing aids were fitted.
[55] Exhibit 7.
It is not clearly established that TTVN’s treating doctor was involved in the diagnosis or assessment of hearing loss, or in any referral to an audiologist. Dr Gibson does not refer to hearing loss in any on the materials placed before the Tribunal.
Without some evidence of diagnosis by an appropriately qualified medical practitioner, as required in the preamble to Table 11, TTVN’s hearing loss cannot be assigned a rating under the Impairment Determination.
IMPAIRMENT RATING
TTVN’s assessable impairments attract a total rating of 20 points.
This means that the second qualification requirement for DSP in s 94(1)(b) of the Act is satisfied.
CONTINUING INABILITY TO WORK
The Secretary submits that TTVN does not satisfy the third qualification requirement for DSP. This is because she does not have a ‘severe impairment’ and she has not actively participated in a program of support for the requisite period prior to lodging her claim for DSP.
It is correct that TTVN does not have a ‘severe impairment’ as defined in s 94(3B) of the Act – she does not have an impairment that attracts a rating of 20 or more points under a single Impairment Table.
That being so, for TTVN to have a ‘continuing inability to work’, each of the requirements set out in s 94(2) must be satisfied.
The first requirement under s 94(2)(aa) is that TTVN must have actively participated in a program of support under the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the Participation Determination).
Generally, subject to certain exceptions, a person must actively participate in a program of support for at least 18 months in the three years immediately before claiming DSP claim. In TTVN’s case, the three-year period is from 11 July 2013 to 11 July 2016.
Active participation in a program of support
On this point, there is very little evidence.
The Secretary handed up an email chain (with the names of officers obliterated) between officers of her Department and officers of the Department of Employment.[56] The email chain sets out tabulated data in summary form, purportedly being the number of days TTVN actively participated in programs of support within the requisite period. This material suggests that “The POS for [TTVN] is 460 days for the period of 11/07/2013 to 11/07/2016”.
[56] Exhibit 12.
There are a number of difficulties with this material.
Firstly, the material needs explication to render it comprehensible. The basis of the calculation is not apparent, but the author was not called to give oral evidence.
Secondly, the information is in summary form and, as the Secretary conceded, it is not possible to verify it against other materials and information that is before the Tribunal.[57] Without detail, it is not possible to make a proper assessment of the extent of TTVN’s active participation in a program of support.
[57] See materials in T21.
Thirdly, the email chain is set out in Annexure B to the Secretary’s Statement of Facts and Contentions, but the Statement does not refer to this Annexure and it appears to contend that TTVN “was not enrolled in a program of support”[58] in the three years prior to lodging her DSP claim. This is not consistent with the contents of the Annexure. I understand that the explanation for the discrepancy is that information about TTVN’s participation in programs of support is retained, at least in part, by the Department of Employment and the information retained by the Secretary’s Department is incomplete. If that is correct, one might reasonably expect the Secretary to obtain all relevant information from the Department of Employment in a timely manner before determining TTVN’s claim. Clearly enough, that did not occur.
[58] ‘Respondent’s Statement of Facts and Contentions’ dated 3 October 2017, para 5.51
Even though the Secretary was allowed one week to provide further evidence and submissions, no further materials or submissions addressing this issue were provided. In the Secretary’s submission, the Tribunal should simply accept the Department of Employment’s information even though it has not been explicated and it is in summary form that cannot be verified.
This is most unsatisfactory.
TTVN cavils with the accuracy of the information provided by the Department of Employment.
I would have held the matter over so that the officer who produced the summary information from the Department of Employment could be called to give oral evidence, but there is little utility in doing so in the circumstances. As will appear, the question of TTVN’s active participation of a program of support is resolved on other grounds.
Furthermore, the grounds on which TTVN cavils with the information cannot sustain her claim. She argues that she was so unwell that her doctors certified her as unfit to participate and this should not count against her. This is incorrect. Periods in which a person is suspended or exempted from participation in a program of support on medical or any other grounds are not counted in the calculation of days on which the person ‘actively participated’ in the program.
The present evidence suggests that TTVN commenced a program of support with Sureway Employment and Training[59], and that it was subject to suspensions and changes.[60] Doing the best with the available materials, it is probable that TTVN’s this program commenced on 1 July 2015,[61] but her participation was suspended temporarily some time later (there is no date recorded).[62] It is clear enough, however, that TTVN attended scheduled activities up to the date she claimed DSP.[63] Thereafter, on 22 August 2016, TTVN was transferred to a Disability Employment Service.[64]
[59] T21 folio 156 – see attendance records in folio 158.
[60] Ibid, folios 148 and 149.
[61] Ibid, folio 156.
[62] Ibid, folio 148.
[63] Ibid, folio 158.
[64] Ibid, folio 156.
The available evidence does not establish that the Sureway program of support was completed in less than 18 months. It is conceivable, but not presently established, that the program was terminated before TTVN lodged her DSP claim on 12 July 2016 – the evidence on this point is very unclear. It appears that the Sureway program was suspended, but the date and duration of the suspension is not able to be ascertained on the present materials. I understand that job service provider records are not retained in the Secretary’s holdings, rather these are held by the Department of Employment. In the Secretary’s submission, the suspensions or exemptions granted to TTVN in respect of the Sureway program of support were of a temporary nature. Even though there is no probative evidence to support this contention, it can be accepted that short suspensions or exemptions may have been granted to TTVN in circumstances of illness or incapacity certified by her treating doctor. The evidence of Dr Gibson is not sufficient to illuminate this point. Nonetheless, it is possible, even likely, that this is what occurred. To my mind, the evidence is sufficient for an inference to be drawn that the Sureway program of support was not permanently suspended or terminated before TTVN claimed DSP, and I will proceed on that basis. Had the Sureway program been permanently suspended or terminated, one would expect to find some reference to this in the materials that have been provided, but there is none.
That being so, TTVN does not satisfy the active participation tests set out in s 7(3) and (4) of the Participation Determination.
It remains to consider if TTVN satisfies the test in s 7(5) of the Participation Determination. If TTVN was participating in the program of support immediately before she claimed DSP, she may satisfy the active participation requirement if it is established that she ‘is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program’.
The use of the word ‘the’ in s 7(5)(a) and (b) of the Participation Determination clearly refers to a specific program of support, and the specific program of support is the program in which the person is participating when the claim for DSP is made. I would not construe the word ‘the’ in this context to mean ‘any’.
In TTVN’s case, ‘the program’ of support in which she was participating immediately prior to claiming DSP was that provided by Sureway. On 22 August 2016, the Sureway program of support was terminated and replaced with a disability specific program. This occurred after the Job Capacity Assessment on 5 August 2016 (which was reported on 18 August 2016) for the reasons given by the Job Capacity Assessor, which I have exposed.
As I have said, there is very scant evidence on addressing TTVN’s participation in the Sureway program, and the available materials are difficult to interpret. The Secretary argued that the Tribunal should do the best it can with the available materials. And that is what I will do.
To my mind, it is probable that TTVN was participating in the Sureway program of support immediately before she claimed DSP on 28 July 2016. She attended her job service provider, Sureway, on 13 May 2016, 14 June 2016 and 12 July 2016.[65]
[65] T21 folio 158.
That being so, I am reasonably satisfied that TTVN was participating in the Sureway program immediately before she claimed DSP.
The final issue is whether she was prevented, solely by her impairment, from improving her capacity to prepare for, find or maintain work through continued participation in the program.
The 18 August 2016 Job Capacity Assessment report identified “Barriers”, namely “Chronic pain”, “Mood Disorder” and “Anxiety Disorder”,[66] and “Interventions”, namely “Pain management program”, “Psychiatric services” and “Anxiety management”.[67] Of these, only chronic pain and the pain management program relate to TTVN’s assessable impairments.
[66] T14 folio 129.
[67] Ibid, folio 130.
The Job Capacity Assessor reported –
“Support Requirements
Requirement: Cope with work related stress and pressure Duration: 12 to 24 months
Requirement: Concentrate or remain task focused Duration: 12 to 24 months
Requirement: Maintain sustainable employment Duration: Less than 6 months
Based on the level of support required the client requires specialist disability employment interventions.
The client is best suited to DES – Disability Management Service.”[68]
[68] T14 folio 129.
It appears that this change was made on 22 August 2016.[69]
[69] T21 folio 156.
The Assessor then assessed TTVN’s work capacity –
“Temporary Work Capacity: 0-7 Hours per week
End Date: 5/08/2017
Rationale: The client has lodged a medical certificate that states she is unable to work 8 hours or more until 28.10.2016. However, based on presentation at interview and discussion around her condition and associated limitations, it is considered that the client will require an extended period of time beyond the date specified on the current medical certificate to follow up on treatment options. For this reason, it is recommended the client’s work capacity remain at between 0-7 hours per week up until 05.08.2017.
Baseline Work Capacity: 8-14 Hours per week
(Excludes any temporary impacts noted above)
Rationale: Work capacity is reduced to 8-14 hours per week due to restrictions imposed by permanent medical condition of osteoarthritis and depression and anxiety and may result in difficulty managing pain, lifting, carrying or moving objects, moving around work and training environment freely and safely, climbing stairs and navigating uneven terrain, managing fear or anxiety about work issues, and maintaining a positive outlook and mood most of the time.
…
Capacity for work within 2 years with Intervention: 15-22 Hours per week
Rationale: The client’s With Intervention work capacity is expected to increase to 15-22 hours per week. Given disability specific intervention, such as workplace modifications (reduced hours/workplace support/ergonomic equipment/job matching/graduated return to work) is likely to result in the client achieving this work capacity within 24 months.”[70]
[70] T14 folios 129-130.
This material raises questions about what the Assessor was actually assessing. It appears that the assessment was not confined to assessable impairments. The Assessor calculated TTVN’s work capacity on impairments resulting from osteoarthritis affecting her lower back as well as mental health conditions that were not fully diagnosed, fully treated and fully stabilised. The ‘Barriers’ and ‘Interventions’ identified also relate to these conditions.
This raises a difficulty. Under s 94(2) of the Act, a person’s ‘continuing inability to work’ is to be determined only in reference to impairment that is assessable for the purposes of s 94(1)(a) and (b).[71] With this clear focus in mind, what is to be made of the Job Capacity Assessor’s report in respect of TTVN’s reported ‘Work Capacity’?
[71] Secretary, Department of Family and Community Services v Michael [2001] FCA 1811, per Keiffel and Dowsett JJ at [28].
To my mind, it is clear enough that the reported ‘Temporary Work Capacity’ relates to TTVN’s osteoarthritis and major depression. As can be seen, the Job Capacity Assessor expressly referred to a medical certificate. This certificate was issued by Dr Gibson on 28 July 2016.[72] It refers to two conditions: one permanent condition – “Advanced osteoarthritis of L4/5 and L5/S1”; and a second condition, “Major Depression”, recorded as “Temporary/Permanent”.
[72] T12 folio 123.
The Secretary submitted that the Job Capacity Assessor’s report of TTVN’s prospective work capacity should be relied upon and preferred over Dr Gibson’s assessment as the Assessor has special training and qualifications that equip her with knowledge not available to a treating doctor.
If that is correct, it may be accepted that the Job Capacity Assessor would (or should) know that the assessment of work capacity for the purposes of s 94(2) of the Act is confined to assessable impairment, alone. Some support for this is found in the words used to describe TTVN’s ‘Temporary Work Capacity’ – the Assessor refers to “her condition and associated limitations”.[73] I understand this singular ‘condition’ to be TTVN’s osteoarthritis. The assessment of ‘Baseline Work Capacity’, however, refers to “restrictions imposed by permanent medical condition of osteoarthritis and depression and anxiety”.
[73] T14 folio 130.
On a plain reading, it appears that the Assessor took TTVN’s depression and anxiety into account when assessing ‘Baseline Work Capacity’. The Assessor was not called to give oral evidence, so this cannot be properly examined and tested.
There is another way of reading of the Assessment, however, in which the ‘depression and anxiety’ are not assessed as separate medical conditions, but rather as symptoms of or responses to chronic pain. It is perhaps significant that the Assessor does not refer to Major Depression, despite this being recorded in the medical certificate of Dr Gibson. This reading is consistent with TTVN’s evidence and it is supported by the text of the Assessment Report, where the Assessor said –
“The client advised that her pain and depression generally go hand in hand. When she is having a bad day with her pain her depression is generally bad as well. The client advised she cannot concentrate for very long on anything.”[74]
[74] Ibid, folio 128.
When the assessments of ‘Baseline Work Capacity’ and ‘Capacity for work within 2 years with intervention’ are understood in this way, it may be accepted that the work capacity assessments were made in respect of the osteoarthritis condition that was certified as permanent by Dr Gibson and “associated limitations” or impairments. On this reading, the Assessor’s reference to “managing fear or anxiety about work issues, and maintaining a positive outlook and mood most of the time” can be understood to refer to the limitations and effects of chronic osteoarthritic pain. This reading is supported by the difficulties and disability specific interventions the Assessor reported when assessing TTVN’s baseline and prospective work capacity.
On first blush, the plain reading was attractive, but on closer examination, I think the alternative reading can be accepted. Even though the Job Capacity Assessment is very far from clear, I am prepared to accept that the Assessor approached the assessment of TTVN’s work capacity on the basis of assessable impairments resulting from ‘permanent’ conditions, rather than any or all conditions that affected TTVN at the time. I will proceed on that basis, albeit somewhat uncomfortably.
Importantly, the Assessor’s reasoning underpinning the recommendation for specialist disability employment interventions can be seen. It is quite clear that the Assessor formed the opinion that TTVN was prevented by her assessable impairments from improving her capacity to look for, find and undertake work through continuation with the Sureway program of support - more was required in the form of specialised disability employment interventions. It was for this reason that the recommendation in respect of Disability Management Services was made and the Sureway program of support was replaced with a Disability Employment Services program of support on 22 August 2016.
To my mind, this is clear evidence that TTVN’s assessable impairment, alone, prevented her from improving her capacity to prepare for, find or maintain work through continued participation in the program in which she had been participating immediately prior to lodging her DSP claim.
That being so, I am satisfied that TTVN satisfied s 7(5) of the Participation Determination and s 94(2)(aa) of the Act.
I am satisfied that TTVN’s spine and lower limb impairments, alone, prevented her from doing any ‘work’, as defined in s 94(5) of the Act (work of 15 or more hours per week), ‘independently of a program of support’ within two years for the purposes of s 94(2)(a) of the Act. This is supported by and largely consistent with the medical certificate and report of Dr Gibson on 28 July 2016. The Job Capacity Assessor reported that TTVN’s work capacity would increase to “15-22 Hours per week” with intervention. The ‘Interventions’ specified are “Pain management program”, “Psychiatric services” and “Anxiety management”.[75]
[75] T14 folio 130.
There is no medical evidence to support the Assessor’s opinion that these ‘Interventions’ would be likely to improve TTVN’s lumbar spine and lower limb impairment, such that she would be capable of working for 15 or more hours per week. The evidence of Dr Gibson and Dr Thong stands against this. And to my mind, their medical evidence carries more weight on this point, and it is preferred for two reasons. Firstly, Dr Gibson and Dr Thong have medical qualifications, training and expertise that informs their assessment of TTVN’s medical prognosis and related work capacity. With all due respect to the Job Capacity Assessor, the opinion of a registered occupational therapist in respect of a person’s medical prognosis and prospective work capacity does not carry the same weight. Secondly, it appears that the Assessor considered that a pain management program intervention may assist TTVN, but the contemporaneous evidence of Dr Sinha is that it did not. The basis on which the remaining ‘Interventions’ – “Psychiatric services/treatment” and “Anxiety management” – were expected to improve TTVN’s work capacity is not explained and this remains opaque. Well it may be, on the medical certificates and reports of Dr Gibson and Dr Sinha, that TTVN’s Major Depression is expected to respond to treatment, but the extent to which this occurrence might alleviate the incapacitating effects of TTVN’s lumbar spine and lower limb impairments is very far from clear. And without some supporting materials of a medical nature, I am not persuaded that the Job Capacity Assessment report is reliable on this point.
The available evidence of Dr Gibson, Dr Thong and the Job Capacity Assessment report of 18 August 2016 does not squarely address the extent to which, if at all, TTVN’s assessable impairment prevents her from undertaking a training activity within two years. To my mind, the Job Capacity Assessment report supports a finding that, should TTVN be provided with disability specific interventions, she would be capable of undertaking training activities within two years. For reasons already discussed in respect of the Job Capacity Assessment report, even if she undertook training activities, it is unlikely that such activities would enable her to do any work ‘independently of a program of support’, as defined in s 94(4) of the Act, within two years. As I have said, the Job Capacity Assessor’s conclusions in respect of future work capacity with interventions within two years, and the nature of the interventions specified (in respect of TTVN’s assessable impairment), must be considered against the specialist medical evidence of Dr Thong in respect of the likely deterioration of her condition and his assessment that –
“treatment … will unlikely provide the relief needed to enter the work force for required number of hours and reliably perform duties.
11. Functional status;
Severe physical impairment and as described above, would struggle with employed work duties.”[76]
[76] Exhibit 4, page 2 and Exhibit 6.
Dr Thong is a pain specialist physician. The Job Capacity Assessor is a registered occupational therapist. On medical issues relating to work capacity, I think Dr Thong’s evidence carries more weight and is preferred. It should be noted that Dr Thong’s report is dated 15 August 2017, almost one year after the Job Capacity Assessment report, and it provides a clear and recent assessment of TTVN’s functional status.
That being so, I am not persuaded that TTVN would be capable of undertaking any work independently of a program of support even if she undertook training activity within two years.
This means TTVN satisfies s 94(2)(b) of the Act.
For these reasons, TTVN has a continuing inability to work and she satisfies s 94(1)(c) of the Act.
CONCLUSION
In reference to the qualification period, TTVN has impairments of 20 points under the Impairment Determination that cause her to have a continuing inability to work.
It follows that the DSP claim she made on 28 July 2016 is made out and the decision under review must be set aside. The matter will be remitted to the Secretary to determine TTVN’s entitlements.
DECISION
The decision under review is set aside and in place thereof the Tribunal decides that TTVN qualified for grant of Disability Support Pension. The matter is remitted to the Secretary to determine TTVN’s entitlements.
I certify that the preceding 172 (one hundred and seventy-two) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
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Associate
Dated: 1 December 2017
Date(s) of hearing: 16 and 24 November 2017 Date final submissions received: 24 November 2017 Applicant: In person Solicitors for the Respondent: Department of Human Services
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