Unsuccessful unlimited portability appeal.

[mikey]

www.austlii.edu.au/au/cases/cth/AATA/2016/784.html

This case has information on how an impairment across multiple tables is treated, and how travel is being interpreted. 

On multiple tables:

The Applicant said in his view that that because his fibromyalgia condition caused him chronic pain in several parts of the body, no condition should be “pinned” onto one Table.
 Rule 6(9) of the Impairment Tables is relevant here. This Rule relates to assessing the functional impact of pain and says, at Rule 6(9)(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;

However, if the Tribunal accepts that the functional impacts of chronic pain is correctly assessed across a range of different Tables, according to the part of the body affected, regard must also be had to Rules 10(3) and 10(4):

(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.

Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3): brain function (Table 7); communication function (Table 8); and visual function (Table 12).

(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.

So, simply speaking, while some impairments may be correctly assessed using Descriptors drawn from more than one Table, impairment points may only be assigned to a person from one Table for that impairment, otherwise it would result in “double-counting.”


and on travel and functional impact :

While he objected to his aircraft travel being cited in terms of his condition, it is correct for the Tribunal to take this semi-regular travel into account in terms of assessing functional impact of impairment on the Applicant. He has a son living in Java and I accept that it is entirely understandable that he travels often to see him, but being able to undertake the travel, even if it may lead to a period of recovery, militates against a correct finding of an extreme functional impact on activities requiring physical exertion or stamina. I find that 20 or more points cannot be correctly assigned under Table 1.

[Banjo]

It shows how unbending they are now that they have a rule book to work with.
The "single impairment" rule is unfair and needs to be changed but as we showed with our residency/portability battles it will be a long hard road and needs quite few dedicated people.

If it was me at the AAT I'd be using this clause

have no future work capacity, that is be prevented by their impairment from performing any work independently of a program of support within the next 5 years

and asking the tribunal to consider it as a dominating factor over impairment points.

[Deleted]

They really do need to change the impairment rule in regard to single or multiple impairments. To score 20 on the tables with multiple impairments should not necessarily declare you not severely disabled. Multiple impairments can combine to make functioning really difficult. Change it not just for UP sakes but also when taken into account PoS. Only work capacity imo should decide those requirements.

[murphy]

Incredibly confusing and unfair, in my view.

[Denis-NFA]

mikey,

I think it a mistake to spread a single source disability across different tables.

[murphy]

But the tables are about impairment, not medical condition. One medical condition can cause multiple impairment across several functions (rheumatoid arthritis for example, can affect upper limb function, lower limb function, spinal function).

[nomadic]

THAT'S THE POINT. they are not fair IN ANYTHING. A.B.I. is just another example of multiple problems. Speech, pain, concentration, movement, fatigue, memory loss just to begin with depending on what part of the brain is damaged.

[tasjo]

I have had this same issue with my DSP application...
I have Rheumatoid Arthritis, Fibromyalgia and an adjustment disorder.
While I was awarded 10 points under table 1 for fibromyalgia, I was only assessed for rheumatoid in my hands, as they are what has the most impact on me working... and because I can lift a 2 ltr carton of milk I was given 5 impairment points. So, no points for my knees, feet or eyes - all of which have been affected (even though I cannot stand for long or walk far mainly due to my knees)... and cannot have it rated under table 1 because they have already considered table 1 for fibro... I'm stuck between a rock and a hard place it would seem

[murphy]

But, tasjo, the impairment tables indicate that multiple conditions can cause a common impairment. The RA and Fibro should be considered together under Table 1.

Multiple conditions causing a common impairment

(5) Where 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.

(6) Where 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 as this would result in the same impairment being assessed more than once.

Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.

[tasjo]

The combined effect will be one of my appeals, in addition to gaining a rating for lower limbs and mental health... just got to get the letters from my doctors to refer to the right dates (should have them by next week) and then will put the AAT request in. My GP and psychologist are extremely supportive and have just asked me to give them pointers on where I need to provide additional information.

[murphy]

tasjo Another member had her psychologist's report praised by a JCA -- it contained a paragraph in relation to each of the points mentioned in Table 5 (regardless of severity). You could just give your psych Table 5 in its entirety so they can see how you are being assessed and provide appropriate information.

[tasjo]

Thanks again Murphy, just working through the other tables first because 5 should be the more 'straightforward' in my appeal. I'll start a new thread because I'm still a bit befuddled on the combined/systemic condition impairment ratings