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

Wright and Secretary, Department of Social Services (Social services second review) [2020] AATA 288 (21 January 2020)
Division:GENERAL DIVISION
File Number:2018/3314
Re:Jennifer Wright
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Member D Fitzgerald

Date:21 January 2020
Place:Perth

The decision under review is affirmed.
.....................[sgd]...................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension –whether Applicant’s conditions were fully diagnosed, treated and stabilised – whether Applicant’s impairments attract 20 points under Impairment Tables – whether Applicant has severe impairment – rheumatoid arthritis, fibromyalgia, osteoarthritis, obstructive sleep apnoea, anxiety and depression – decision is affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 94(1), 94(1)(a), 94(1)(b), 94(1)(c), 94(1)(c)(i), 94(2)
Social Security (Administration) Act 1999 (Cth) – Schedule 2, cll 3(1) and 4(1)

CASES
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Summers and Secretary, Department of Social Services [2014] AATA 165
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide, Department of Social Services, version 1.231
Guides to Social Policy Law: A Guide to the Tables for the Assessment of Work–related Impairment for DSP, Department of Social Services, version 1.231
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – Tables 1, 3, 5 and 7; ss 3, 5(2), 6, 6(1), 6(3), 6(4), 6(5), 6(6), 6(7), 6(8), 6(9), 10(5), 10(6), 11
REASONS FOR DECISION
Member M East
Member D Fitzgerald
22 January 2020
DECISION UNDER REVIEW

The decision under review is a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), made on 10 May 2018 (T2, pp. 4-17), that affirmed the decision of an authorised review officer (the ARO) of the Department of Human Services (the Department) to reject the Applicant’s claim for Disability Support Pension (DSP).
ISSUES
The issue in this matter is whether the Applicant was qualified for DSP on the day she lodged her claim or within 13 weeks thereafter.
The Tribunal finds that the date of claim is 21 April 2017. In making this finding, the Tribunal relies on the ARO’s decision and the Department’s records (T17, pp. 154-183; T29, pp. 207-214).
The issues require consideration of whether the requirements set out in s 94 of the

Social Security Act 1991
(Cth) (the Act) are met; in particular:
(a)whether the Applicant had any physical, intellectual or psychiatric impairments;
(b)whether the Applicant’s impairments receive an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
(the Determination) and if so:
(i)whether those 20 impairment points are achieved under a single Impairment Table such that the Applicant has a severe impairment; or
(ii)whether those 20 impairment points are achieved under multiple Impairment Tables; and
(c)whether the Applicant has a continuing inability to work (CITW), which includes:
(i)that she is unable to work for 15 hours or more per week, within the next two years, independently of a program of support; and
(ii)if, and only if, the Applicant does not have a severe impairment, has the Applicant actively participated in a program of support.
The Applicant must meet all of the above criteria in order to be qualified for DSP.
FACTS
On 21 April 2017, the Applicant made a claim for DSP (T17, pp. 154-183;

T29, pp. 207-214). The Applicant’s medical conditions are recorded as rheumatoid arthritis, osteoarthritis (of the cervical and lumbar spine, left knee, left hip joint and right knee), fibromyalgia, obstructive sleep apnoea (OSA), generalised anxiety disorder, and major depressive disorder. The Applicant was 55 years old at the date of claim

(T17, pp. 154-184).
In her claim form (T17, p. 179), the Applicant lists her disabilities as ‘fibromyalgia, rheumatoid arthritis and spinal stenosis (degenerative changes due to osteoarthritis)’. The condition of spinal stenosis appears to have been assessed by the various review levels as osteoarthritis.
On 17 May 2017, the Department rejected the Applicant’s claim for DSP on the basis that she did not have an impairment rating of 20 points or more under the Impairment Tables (T23, pp. 197-198).
The Applicant sought review of the Department’s decision. On 7 December 2017, an ARO from the Department affirmed the decision to reject the Applicant’s claim for DSP

(T29, pp. 207-214).
On 16 March 2018, the Applicant applied for first review by the AAT1 (T2, p. 5).
On 10 May 2018, the AAT1 affirmed the decision to reject the Applicant’s claim for DSP (T2, pp. 4-17). The AAT1 found that:
(a)the Applicant’s rheumatoid arthritis was not permanent in that it was not fully diagnosed, treated and stabilised, and the resulting impairment could not therefore be assigned an impairment rating;
(b)the Applicant’s osteoarthritis was not permanent in that it was not fully diagnosed, treated and stabilised, and the resulting impairment therefore could not be assigned an impairment rating;
(c)the Applicant's fibromyalgia was not permanent in that it was not fully diagnosed, treated and stabilised, and the resulting impairment therefore could not be assigned an impairment rating;
(d)the Applicant’s OSA condition was not permanent in that it was not fully diagnosed, treated and stabilised, and the resulting impairment therefore could not be assigned an impairment rating;
(e)the Applicant’s depression was not permanent in that it was not fully diagnosed, treated and stabilised, and the resulting impairment therefore could not be assigned an impairment rating; and
(f)the Applicant did not have a total impairment rating of 20 points or more.
On 18 June 2018, the Applicant filed an Application for a review of the AAT1 Decision

(the Reviewable Decision) with the Administrative Appeals Tribunal (the Tribunal)

(T1, pp. 1-3).
THE HEARING
The application was heard by the Tribunal on 27 August 2019. The Applicant represented herself and was assisted by her husband, Mr Wright. The Respondent was represented by Ms Jones-Bolla of Sparke Helmore Lawyers.
Mr and Mrs Wright both gave evidence and Mrs Wright was cross examined.
At the hearing, the Tribunal admitted into evidence the following documents:
·Letter of Jennifer Wright undated, received by the Tribunal on 20 May 2019 (Exhibit A1);
·
Letter of Vern Wright undated, received by the Tribunal on 20 May 2019

(Exhibit A2);
·
Poem of Vern Wright undated, received by the Tribunal on 20 May 2019

(Exhibit A3);
·Letter of Vern Wright undated, received by the Tribunal on 3 December 2018 (Exhibit A4);
·Letter of Dr John Salmon, pain management specialist, dated 22 November 2018 (Exhibit A5);
·Psychological Assessment Report, by Joseph Presti, clinical and counselling psychologist, dated 21 November 2018 (Exhibit A6);
·Letter of Dr Marian Pinto, dated 18 September 2018 (Exhibit A7);
·Letter of Dr Marian Pinto, dated 20 August 2018 (Exhibit A8);
·Report of Dr Rachit Harjai, dated 2 August 2018 (Exhibit A9);
·Clinipath Pathology Reports, dated 1 August 2018 (Exhibit A10);
·Bundle of GP History Reports, dated 1 August 2018, handed up by the Applicant at the hearing on 27 August 2019 (Exhibit A11);
·T Documents (T1-T38, pp 1-252), received 15 May 2019 (Exhibit R1);
·
Supplementary T Documents (ST1-ST7, pp 1-33), received 15 May 2019

(Exhibit R2);
·
the Respondent’s Statement of Facts, Issues, and Contentions, dated

9 April 2019 (Exhibit R3);
·the Applicant’s Pharmaceutical Benefits Scheme (PBS) summaries, handed up by the Respondent at the hearing on 27 August 2019 (Exhibit R4); and
·the Applicant’s Medicare Patient History Reports, handed up by the Respondent at the hearing on 27 August 2019 (Exhibit R5).
RELEVANT LEGISLATION
The legislation applicable to this matter is contained in:
·the Act;
·the Social Security (Administration) Act 1999 (Cth) (the Administration Act);
·the Determination; and
·the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Guides to Social Policy Law: Social Security Guide (the Guide) provides assistance to those who administer the Act. To ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for departing from it (Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634).
The Guide to the Tables for the Assessment of Work–related Impairment for Disability Support Pension (the Impairment Guidelines) provides further explanation of the Impairment Tables in the Determination and includes background information as well as case studies (see part 3.6.3 of the Guide).
Qualification Criteria
The Applicant lodged her claim for DSP on 21 April 2017.
Section 94 of the Act sets out the qualification criteria for DSP. These are outlined in paragraph [4] of this decision.
In accordance with sub-cll 3(1) and 4(1) of Sch 2 to the Administration Act, the Tribunal is required to determine the Applicant’s eligibility for DSP on 21 April 2017, being the date the claim was lodged or within 13 weeks after the day on which the claim is made

(the Qualification Period).
The Determination contains the Impairment Tables. The Impairment Tables set out the rules about when an impairment rating can be assigned as well as a rating system for impairment. The Impairment Tables are based on function rather than diagnosis (‘impairment’ is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition (s 3 of the Determination)). The Impairment Tables describe functional activities, abilities, symptoms and limitations and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions (s 5(2) of the Determination).
Subsection 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables, the impairment must be permanent and be more likely than not, in light of available evidence, to persist for two years (s 6(3) of the Determination, refer also to ss 6(4) to 6(7) of the Determination).
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. If an impairment has no functional impact, then no rating will be assigned (s 6(8) of the Determination).
Subsection 6(9) of the Determination states that there is no Impairment Table dealing specifically with pain and when assessing pain the following must be considered:
(a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)whether the condition causing the pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsection 6(5) and (6).
The Guide states relevantly and in part the following (at 3.6.3.05):
The Tables are function-based rather than diagnosis-based in that they focus on assessing the impact of impairment on normal functions as they relate to work performance and assigning a rating consistent with the identified level of such an impact. As such, the Tables do not just assess a person's medical conditions, the person's overall health status or a loss or abnormality of psychological, physiological or anatomical structure.
The basis for understanding the concept and design of the Tables as being function-based rather than condition or diagnosis-based, lies in a distinction between the concepts of medical conditions and impairments.
With regard to assessing the functional impact of pain, there is no longer an Impairment Table specifically dealing with pain. The Guide states the following (at 3.6.3.05):
Where a person experiences chronic pain as a result of a permanent condition, such as rheumatoid arthritis, chronic pain is not a separate diagnosis but rather a symptom of the underlying autoimmune disorder.
Where a permanent condition results in chronic pain, the first step is to consider the functional impact as outlined in the medical evidence, for example, does it impact spinal function, upper or lower limb function, concentration and memory or physical exertion and stamina (fatigue).
The next step is to determine which Impairment Table/s apply to the impact while avoiding double-counting of the impairment.
In selecting Impairment Tables for chronic pain affecting particular parts of the body (refer to paragraph [27] above), the Guide at 3.6.3.05 provides the following guidance and examples in determining which Impairment Tables to apply and how to apply them:
·     where chronic pain does not impact physical exertion and stamina there will be no need to consider the use of Table 1 – Functions requiring Physical Exertion and Stamina,
·     where chronic pain does impact physical exertion and stamina and this is adequately assessed by another selected Table, there will be no need to consider the use of Table 1 – Functions requiring Physical Exertion and Stamina,
·     where chronic pain impacts physical exertion and stamina (i.e. results in fatigue symptoms) and this is not adequately assessed by another Table, Table 1 – Functions requiring Physical Exertion and Stamina may need to be considered, while ensuring that the level of impairment is not overstated,
…
·     if a person experiences chronic pain as a result of a permanent condition and this pain impacts the person in a particular area of the body such as the upper limbs, the relevant Table should be used to assess the impact of the condition (e.g. Table 2 – Upper Limb Function). A rating under the body area Tables includes consideration of the impact of pain and fatigue on the person's ability to undertake activities within the descriptor,
·
if a person experiences chronic pain as a result of a permanent condition and this pain impacts multiple areas of the body, more than one body area Table may be used to assess the impact of the condition (e.g. Table 2 – Upper Limb Function, Table 3 – Lower Limb Function and/or Table 4 -Spinal Function) as long as the overall level of impairment is not overstated/double counted.

A rating under these Tables includes consideration of the impact of pain and fatigue on the person's ability to undertake activities within the descriptor,
·     for systemic conditions that affect one or more areas resulting in chronic pain (such as rheumatoid arthritis) impacts on activities requiring physical exertion and stamina should be assessed under Table 1 – Functions requiring Physical Exertion and Stamina. Table 1 includes assessment of the impact of pain and fatigue on a person's mobility and capacity to undertake daily activities,
·     where a person's concentration and/or memory is also impacted by chronic pain, consideration should be given to whether an additional rating under Table 7 – Brain Function is also required,
·     where a person experiences chronic pain that results in fatigue and another Table adequately assesses these impacts, Table 1 should not be used as well e.g. Table 10 – Digestive and Reproductive Function or Table 14 – Functions of the Skin only should be used.
Example 1: A person with stabilised permanent condition that results in chronic lower back pain should be assessed using Table 4 – Spinal Function. The functional impact of the person's impairment on the person's ability to bend, move their trunk and remain seated would be assessed in accordance with the descriptors in that Table. In determining the level of impairment, consideration should be given to the impact of pain resulting from the back condition on the person's ability to undertake activities within the descriptor, e.g. the person cannot bend or move their trunk on a repetitive basis due to the chronic pain they experience on doing so.
Example 2: A person with chronic pain which impairs their ability to use their arms, and their legs should be assessed using Table 2 – Upper Limb Function and Table 3 – Lower Limb Function. The functional impact of the chronic pain on their ability to pick up, handle or manipulate objects for example, would be assessed using the Table 2 descriptors, while the impact of the chronic pain on their ability to walk, stand or use stairs for example, would be assessed using the Table 3 descriptors.
Example 3: …
Example 4: …
Example 5: …
These examples are not exhaustive – it should be remembered that chronic pain may affect a number of different body functions…
(Original emphasis.)
In relation to chronic pain, the Guide also relevantly states (at 3.6.3.07):
Chronic pain can be a condition and where it has been fully diagnosed, treated and stabilised, the assessor should assess any loss of functional capacity using the Table relevant to the area of function affected. Chronic pain can also be a symptom and when it stems from a permanent condition the functional impact of the pain should be rated using the relevant Table/s to capture the appropriate level of impairment while ensuring the level of impairment is not overstated or double counted. For example:
·either Table 2 (Upper Limb Function), Table 3 (Lower Limb Function) or Table 4 (Spinal Function) can be used if the pain impacts the person in one of these areas of the body. These Tables can also be used in combination if the pain impacts the person in multiple areas.
·Table 1 (Functions Requiring Physical Exertion and Stamina) can be used if the chronic pain impacts the person's physical exertion and stamina (i.e. fatigue symptoms) and is not adequately assessed by another Table.
·Table 7 – Brain Function can be used if the person has chronic pain which impacts their memory, attention or concentration. Table 7 can be used in conjunction with other Tables, as required…
Continuing inability to work, severe impairment and participation in a program of support
In respect of the requirement that a person is to have a CITW under s 94(1)(c) of the Act, unless a person is specifically exempted from this requirement, all the criteria in s 94(2) of the Act need to be satisfied, including active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years. Subsection 94(2) of the Act is as follows:
(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) in a case where the person's impairment is not a severe impairment within the meaning of (3B) … –the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Emphasis added.)
CONSIDERATION
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?

The Respondent has conceded that at the date of claim, 21 April 2017, and during the qualification period, the Applicant suffered from impairments due to her various conditions. Having reviewed the medical and other evidence presented to the Tribunal, it finds that the Applicant suffered from the following impairments:
·rheumatoid arthritis, fibromyalgia and osteoarthritis;
·OSA; and
·depression.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Do the Applicants’ impairments receive an impairment rating of 20 points or more?
Subsection 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a condition that is permanent.
Permanent is defined in s 6(4) of the Impairment Tables to have a specific meaning for the purposes of s 6(3). Subsection 6(4) provides that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.
Subsection 6(5) of the Impairment Tables provides that, in determining whether a condition is fully diagnosed and fully treated for the purposes of ss 6(4)(a) and (b), the following must be considered:
(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.
Subsection 6(6) of the Impairment Tables states that 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)if 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.
When applying the Impairment Tables, ‘[t]he 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’ (s 6(1) of the Impairment Tables).
Assessment of Impairments under the Impairment Tables
Subsection 10(5) of the Determination provides that ‘[w]here two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table’. Subsection 10(6) of the Determination further states that ‘[w]here a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition’. If a separate impairment rating was assigned for each condition for the same impairment, the effect of this would result in the same impairment being assessed more than once. Therefore, if a condition is assessed under a Table but can also be assessed under another, it is not appropriate to assess it twice. Similarly, if multiple conditions are causing the same impairment (such as pain), only one rating should be applied not multiple impairments.
Rheumatoid Arthritis and Fibromyalgia – Table 1 and Table 7
The Respondent has conceded that the Applicant’s rheumatoid arthritis and fibromyalgia conditions were fully diagnosed, treated and stabilised (FDTS) during the Qualification Period and the resulting impairments can therefore be rated under the Impairment Tables (Exhibit R3, p. 9 at [33]). After reviewing the evidence, the Tribunal finds that the conditions of rheumatoid arthritis and fibromyalgia were FDTS during the Qualification Period.
The Respondent contends that the functional impairment (pain and fatigue) caused by these conditions is appropriately rated under Table 1 of the Impairment Tables. Table 1 is to be used where a person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion and stamina.
To qualify for an impairment rating of 10 points, the Applicant would need to experience frequent symptoms (such as shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community, and due to these symptoms, the Applicant would be unable to walk (or mobilise in a wheelchair) far outside the home and would need to drive or get other transport to local shops and facilities, or has difficulty performing daily household activities such as changing the sheets and would be able to use public transport and walk (or mobilise in a wheelchair) around a shopping centre and perform work-related tasks that do not require a high level of physical exertion (that is, clerical, sedentary or stationary in nature).
To qualify for an impairment rating of 20 points (a severe functional impairment), the Applicant would need to usually experience symptoms when performing light physical activities and due to these symptoms be unable to walk (or mobilise in a wheelchair) around a shopping centre or walk from the carpark into a shopping centre or use public transport without assistance or perform light day to day household activities and has or is likely to have difficulty sustaining work related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least three hours.
‘Without assistance’ has been defined as meaning from a person, not an object or physical aid which includes a supermarket trolley (see Summers and Secretary, Department of Social Services [2014] AATA 165 at [17]).
The Applicant’s evidence at the hearing was that she was diagnosed with rheumatoid arthritis in 2009 and with fibromyalgia in 2010. She had a car accident in around 2012 or 2013 which caused an exacerbation of her neck and back pain.
The Tribunal has considered the evidence insofar as it applies to the Qualification Period.
The oral and documentary evidence provided indicates the following.
At the AAT1 hearing, the Applicant said she was able to drive up to 20 minutes locally. She said she very rarely does shopping. She said she occasionally sweeps the floor for a few minutes or hangs some washing at a low level.
At this Tribunal the Applicant agreed that Dr Salmon reported her pain was exacerbated by activity, walking for more than 20 minutes, sitting for more than one hour and that she also needed help with the washing and shopping (Transcript, pp. 20-21) (Note – this evidence refers to the report of Dr Salmon dated 1 November 2016 (T12, p. 145), the contents which were put to the Applicant under cross-examination). The Applicant also confirmed that as of April 2017, she was able to sit up to 20 minutes and wash her own hair. She said her husband needed to dry it for her but he contradicted her and said that was a more recent development (Transcript, p. 26). She also said that in April 2017 she did not need to use a walking stick but used it sometimes for assistance.
When questioned by the Tribunal about her housework activities in 2017, she said she was able to hang out low washing and fold everything, apart from the sheets and was also able to dust the furniture with a rag. She also responded when questioned who did the bathrooms and toilets, that cleaning was a ‘team effort’. She said she would spray and her husband would usually scrub. She said she was able to do ‘[a]nything sitting down,
I couldn’t sort of stand up and swing around, or anything’ (Transcript, p. 29).
The Respondent tendered the report of the Health Professional Advisory Unit (HPAU) dated 5 March 2019 (ST6, pp 14-29). Dr Arnel, referring to the opinions of Dr Pinto and

Dr Reed, confirmed the diagnosis of rheumatoid arthritis, with a date of onset in 2011.

Considering the drug therapy she has had since the date of onset and since the Qualification Period, Dr Arnel considered that the treatment she received during the Qualification Period was reasonable and any further treatment would be unlikely to result in significant functional improvement. Therefore the condition should be considered fully diagnosed, treated and stabilised during the Qualification Period.
He assigned a rating of 10 points under Table 1 on the basis that she could use public transport and walk for 20 minutes without assistance for a distance of up to 100 metres when walking the dog. The doctor stated that this implies she would be able to walk around a supermarket or shopping centre. He also referred to his discussion with Dr Reed where he stated that the Applicant self-reported she could handle coins, tutor students, apply for jobs, help with household tasks around lunchtime which is her best time, exercise her dog, attend social groups, start a support group for people with arthritis, write about her life story, attach photos to Gumtree and sit for more than 30 minutes.
Dr Arnel also spoke with Dr Salmon who reviewed the Applicant on 11 May 2017.

Dr Salmon stated that the Applicant would have difficulty performing day to day household activities such as sweeping paths, is able to use public transport, does not need assistance to get out of a car, is able to walk for 20 minutes without assistance and is able to concentrate for one hour during consultation but would have difficulty with more than that. He further said that she was able to perform work-related tasks of a clerical, sedentary or stationary nature and would not be able to bend forward to pick up a light object placed at knee height.
When cross-examined by Ms Jones-Bolla, the Applicant conceded that the evidence recorded was partially correct (Transcript pp. 24-28). She said she only saw Dr Salmon for 10 minutes at a time and therefore did not understand how he could say she concentrated for one hour. She said she cannot sit anywhere for an hour and cannot study or read a book. She did concede that she could drive for 20 minutes and this constituted sitting and concentrating.
In the recount of his conversation with Dr Reed, Dr Arnel stated that he had reported that the Applicant was able to sit for more than 30 minutes. The Applicant categorically denied this in her oral evidence.
Referring to the opinions of Dr Salmon and Dr Reed, Dr Arnel stated that the Applicant would have had the capacity to perform work-related tasks of a clerical, sedentary or stationary nature during the relevant period. This was based on her ability to perform some work related tasks such as tutoring students and helping with some household tasks.
Additionally, in a report dated 1 November 2016, Dr Salmon records that the Applicant’s pain is exacerbated by walking more than 30 minutes and by sitting for more than one hour (T12, pp. 145-148). She made the appointment to see him because of his experience with the Nevro spinal cord stimulator implant (SCSI). The Tribunal notes the extensive history taken by Dr Salmon at this examination which appears to contradict the Applicant’s evidence that she never saw him for more than 10 minutes at a time.
Whilst it appears that there is some disagreement between what was recorded by the treating practitioners and the Applicant’s own evidence, at a minimum, the Tribunal accepts that the Applicant had the ability to walk her dog for up to 20 minutes and drive a car for 20 minutes which also involves sitting and concentrating for 20 minutes.
The Tribunal is inclined to consider it more likely than not that the Applicant did have the ability to sit for at least one hour before experiencing discomfort, given the contemporaneous nature of Dr Salmon’s report and the qualifying period. However, as noted above, the Tribunal finds that there is sufficient evidence to support a finding that she was able to walk, sit and concentrate for at least 20 minutes during the relevant qualifying period.
In assigning a rating under Table 1, the Tribunal finds with respect to her rheumatoid arthritis, that based on both the oral and documentary evidence, that the Applicant qualifies for a moderate functional impairment, that is, 10 points during the qualifying period. This is based on her experiencing frequent symptoms of pain when performing day to day activities around the home and due to these symptoms, has difficulty performing day to day household activities. The evidence also supports the finding that she is able to use public transport and walk around a shopping centre or supermarket and has the capacity to perform work-related tasks of a clerical, sedentary or stationary nature.
With respect to her fibromyalgia, this was diagnosed in 2010 (T12, p. 146) with an onset of symptoms in June 2009. It was confirmed as a diagnosis by Dr Pinto, her GP (T26),

Dr Reed, rheumatologist (T6) and Dr Salmon (T12). Although fitted with a SCSI on

29 March 2017, this has had little, if any, effect on her condition. Whilst the Secretary has conceded that the condition is FDTS, as the functional impairment due to her rheumatoid arthritis has already been assessed under Table 1, to assign a further impairment to the fibromyalgia under Table 1 is not appropriate.
The Secretary submitted and the Tribunal accepts that a rating under Table 7 is also required due to the effects of fibromyalgia and/or rheumatoid arthritis on the Applicant’s concentration (also referred to as ‘brain fog’ in the hearing). The Tribunal finds that the effect of this condition on the Applicant’s brain function has not been taken into account in determining the appropriate impairment rating under Table 1.
To qualify for a five point impairment rating under Table 7, the Applicant would need to be able to complete most day to day activities without assistance and have mild difficulties in at least one of the specified functional impairments, which includes attention and concentration. The example given is some difficulty concentrating on complex tasks for more than one hour.
In her report, Emma Farrugia, Senior Occupational Therapist reported on 13 June 2017 that ‘[s]he also experiences difficulty focusing, concentrating, and processing information due to her pain, which would obviously have a great impact on her vocational ability’
(T25, pp. 201-202).
Dr Salmon reported to Dr Arnel, the HPAU that the Applicant was able to concentrate for up to an hour during her consultation with him. The Applicant categorically denied that

Dr Salmon would know that because she never saw him for longer than 10 minutes (Transcript p. 24). However, as noted above, the Tribunal finds it more likely than not, that given the contemporaneous nature of Dr Salmon’s reporting that the Applicant could concentrate for up to an hour during the qualifying period.
The Tribunal finds that the evidence submitted to it does not justify a higher impairment rating being applied during the Qualification Period.
Therefore, the Tribunal finds that a five point impairment rating applies under Table 7.
Osteoarthritis (right knee) – Table 1
The Secretary has conceded and based on the medical evidence available, the Tribunal accepts that the Applicant’s osteoarthritis of the right knee was FDTS during the Qualification Period and the resulting impairment can therefore be rated under the Impairment Tables. The Applicant underwent a total right knee replacement on

29 February 2016.
The Introduction to Table 3 states that Table 3 is ‘to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet’. The Applicant’s evidence was that she was able to stand for up to 20 minutes. To qualify for a mild impairment, the Applicant would need to demonstrate that she was unable to stand for more than 10 minutes and/or requires a lower limb prosthesis or walking stick to mobilise effectively. The evidence provided to the Tribunal does not support this conclusion and accordingly, the Tribunal assigns a zero point impairment rating under Table 3.
The Secretary submitted that the right knee condition should be assessed under Table 1, however, any impairment has already been included in the 10 point impairment rating assigned.
Subsection 10(5) of the Impairment Tables provides that where multiple conditions cause a common impairment, a single rating should be assigned in relation to that common impairment under a single Impairment Table.
The Secretary has submitted that the functional impairment caused by this condition is appropriately rated under Table 1, together with the functional impairment caused by the rheumatoid arthritis and fibromyalgia conditions. Table 1 is to be used where a person has a condition resulting in functional impairment when performing activities requiring physical exertion and stamina. The medical evidence indicates that the Applicant suffers from pain as a result of this condition which affects physical exertion and stamina

(T8, pp. 138 – 140).
The Secretary submitted that the impairment caused by the osteoarthritis of the right knee is already reflected in the 10 point impairment rating under Table 1, which takes into account the Applicant’s overall functional impairment caused by the Applicant’s pain, and that no further points should be assigned for this condition.
The Secretary contends that if the functional impairment caused by this condition were to be separately rated under Table 3 of the Impairment Tables, this would result in double counting (see the Guide at 3.6.3.05).
The Tribunal is satisfied that Table 3 is the more appropriate table to be used, however finds the assessment of functional impairment to be zero (see paragraph [68] of this decision).
Osteoarthritis (cervical and lumbar spine) – Table 1
The Secretary has submitted that the Applicant’s osteoarthritis of the cervical and lumbar spine was fully diagnosed as at the Qualification Period. Based on the medical evidence provided, the Tribunal finds that the osteoarthritis of the cervical and lumbar spine was fully diagnosed during the Qualification Period.
The Secretary has submitted that this condition was not fully treated and stabilised during the Qualification Period and accordingly, under the rules outlined in the Determination, an impairment rating cannot be assigned to any impairment arising from this condition.
The Secretary contends that this condition was not fully treated and stabilised on the basis of the following (Exhibit R3, pp. 11-12):
(a)
In a report dated 29 March 2017, Dr Salmon records that on 29 March 2017,

the Applicant underwent surgery to insert a Nevro high frequency SCSI with electrodes in the Applicant’s cervical C2/3 and dorsal T9/10 to cover both the upper and lower body pain symptoms. As such, the Applicant underwent this surgery less than a month before lodging her claim for DSP. Dr Salmon noted that prior to the implant being inserted, the Applicant had a nine day trial of the stimulation treatment and reported more than 60% reduction in her upper and lower body symptoms and increased activity capacity. Dr Salmon recorded that he is due to see the Applicant again in a month (T18, p. 184).
(b)The HPAU assessor recorded that during his discussion with Dr Salmon for the preparation of the HPAU report:
Dr Salmon was adamant in telling me that when he reviewed

Ms Wright on 11/05/2017 he was expecting substantial improvement in Ms Wright’s functional capacity because of the SCSI and ongoing occupational therapy and physiotherapy reviews as well as medication dose adjustments…
(ST6, pp. 14-29).
As such, there was further expected improvement in the Applican’s condition, particularly in relation to the pain experienced by the Applicant.
(c)The HPAU assessor recorded that during his discussion with Dr Mark Reed, Rheumatologist, for the preparation of the HPAU report, Dr Reed stated that the Applicant’s back pain has partially improved due to the SCSI (ST6, pp. 14-29).
(d)
In a report dated 11 May 2017, Dr Salmon recorded his post-surgery follow-up with the Applicant. Dr Salmon records that approximately one month after the surgery, the Applicant reported ‘about 75% sustained pain reduction and she is very happy with this outcome’. Dr Salmon notes his planned changes to the Applicant’s medication and opines that the Applicant could also consider a review by Bullcreek physiotherapy regarding her home-based exercising and

self-management (T21, pp. 192-193).
(e)A Departmental file note recording indicates that on 5 December 2017, during a phone call to the Applicant, the Applicant indicated that she was undertaking conservative treatment of physiotherapy and hydrotherapy (T38, p. 247).
(f)
A document showing the Applicant’s appointment history for what appear to be occupational therapy sessions indicates that the Applicant attended three sessions in June and July 2016, two sessions during the Qualification Period (on

13 July 2017 and 20 July 2017) and had multiple sessions planned for January and February 2018, as well as hydrotherapy planned for 2 March 2018

(T31, p. 217). As such, the Applicant’s treatment for this condition was ongoing and she had planned treatment after the end of the Qualification Period that Dr Salmon considered would improve her condition (ST6, pp. 14-29).

The Tribunal has reviewed the medical evidence provided to it and finds that the Applicant’s condition of osteoarthritis of the cervical and lumbar spine was not fully treated and stabilised during the Qualification Period.
The Tribunal is therefore unable to assign an impairment rating to this condition.
Osteoarthritis (left hip joint) – Table 1
The Secretary concedes that the Applicant’s osteoarthritis of the left hip joint was fully diagnosed as at the Qualification Period (ST6, pp. 14-29).
However, the Secretary submitted that this condition was not fully treated and stabilised during the Qualification Period and accordingly, under the rules outlined in the Determination, an impairment rating cannot be assigned to any impairment arising from this condition.
The only available medical evidence in relation to the Applicant’s left hip joint is an x-ray imaging report dated 30 November 2016, prepared by Dr Ashish Chawla, Radiologist. This report records mild degenerative changes at the left hip joint with reduced joint space and marginal osteophyte formation (T14, pp. 151). However, it does not provide any further details about the treatment of this condition or the functional impairment caused by this condition.
The Tribunal finds that the condition is not fully treated and stabilised and therefore is unable to allocate an impairment rating.
Osteoarthritis (left knee) – Table 1
The Secretary contends that this condition was not FDTS as at the Qualification Period and accordingly, an impairment rating cannot be assigned to any impairment arising from this condition.
The medical reports of Dr Reed dated 28 August 2016 (T8, pp. 138-140) and Dr Pinto dated 6 June 2017 (T24, pp. 199-200) refer to the Applicant’s osteoarthritis condition generally and also to it being in her spine and joints. No specific reference is made to the left knee.
A CT imaging report which post-dates the Qualification Period refers to a complex meniscus tear, moderate changes of tibiofemoral and patellofemoral arthropathy with full thickness articular cartilage loss and subchondral cystic change (ST2, pp. 4-5).
The Tribunal finds that there is no contemporaneous medical evidence which supports the Applicant’s contention that osteoarthritis of her left knee was diagnosed during the Qualification Period.
Accordingly, this condition cannot be assigned an impairment rating.
Psychological condition – Table 5
The Applicant has been diagnosed by Joseph Presti, clinical psychologist as having symptoms which are consistent with a diagnosis of major depressive disorder, co-morbid with the symptoms of generalised anxiety disorder. Mr Presti’s report was dated

21 November 2018 (ST4, pp. 8-12). The Tribunal notes this is after the Qualification Period.
There is no reference in Mr Presti’s report to the condition arising during the Qualification Period.
At the hearing the Applicant tendered a bundle of documents which was a summary of her medical history together with her general practitioners’ notes from April 2015 to

August 2019 (Exhibit A11).
A review of those records as well as the report of Dr Pinto dated 6 June 2017

(T24, p. 199) indicates the Applicant had presented to that medical practice with depression and anxiety. Dr Pinto reports that a mental health care plan was done on

16 October 2015. Dr Pinto also refers to a diagnosis of depression and anxiety in her report dated 1 September 2016 (T9, p. 141).
The requirement in the introduction of Impairment Table 5 (Mental Health Function) in the Determination states that ‘[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The Applicant was not diagnosed by a psychiatrist or clinical psychologist until after the Qualification Period. The Tribunal does not doubt the Applicant’s claim that she has been suffering from the conditions for a significant period of time. However, without a diagnosis by the appropriately qualified professional, the Tribunal is unable to find the condition as diagnosed at the relevant time.
The Tribunal is unable to assign an impairment rating because the condition was not diagnosed during the Qualification Period.
OSA Condition – Table 1
Dr Reed referred to this condition in his report dated 28 August 2016 (T8, pp. 138-140). He states that she is being treated with continuous positive airway pressure (CPAP) therapy and that the condition may be contributing to her fatigue.
In her report dated 6 June 2017, Dr Pinto refers to the Applicant being diagnosed with OSA in 2010 and being on CPAP (T24, p. 199).
In her AAT1 hearing, the Applicant said she had stopped using the CPAP machine because it disturbed her sleep.
Unfortunately the Tribunal cannot accept this condition as FDTS. The Applicant has been prescribed with a CPAP which she voluntarily stopped using.
Therefore, the Tribunal cannot allocate an impairment rating in relation to this condition.
Overall impairment rating
The Tribunal finds that the Applicant had an overall impairment rating of 15 points under the Impairment Tables. The Applicant therefore does not satisfy paragraph 94(1)(b) of the Act.
Does the Applicant have a continuing inability to work?
As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one Impairment Table or cumulatively across multiple Impairment Tables, it does not need to consider whether the Applicant met the requirements of s 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of s 94(1)(a) of the Act. Namely, rheumatoid arthritis, fibromyalgia, osteoarthritis, OSA, anxiety and depression.
The conditions of osteoarthritis (left knee) and anxiety and depression were not diagnosed (and therefore not capable of being fully treated and stabilised) during the Qualification Period. The conditions of osteoarthritis (cervical and lumbar spine and left hip) and OSA, whilst diagnosed, were not fully treated and stabilised during the Qualification Period. Accordingly, the conditions of osteoarthritis (cervical and lumbar spine, left hip and left knee), OSA and anxiety and depression were not FDTS during the Qualification Period.
The conditions of rheumatoid arthritis, fibromyalgia and osteoarthritis (right knee) attract a combined impairment rating of 15 points.
The Tribunal finds that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables, and consequently the Applicant does not qualify for a DSP.
DECISION
The decision under review is affirmed

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Member M East and Member D Fitzgerald

....................[sgd]....................................................
Associate
Dated: 21 January 2020

Date of hearing: 27 August 2019

Applicant: In person

Counsel for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2020] AATA 288

21 January 2020

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Date of hearing:	27 August 2019
Applicant:	In person
Counsel for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers