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Post by tasjo on Oct 17, 2016 18:14:46 GMT 7
So.. I'm putting together the basics of my appeal and will get my GP to use it to put together a report. I'm still kind of confused on the combined effect and what I can claim in impairment terms due to having both RA and Fibromyalgia. I am appealing the impairment rating on table 1 due to the combined effect of both conditions in relation to chronic pain, fatigue when performing tasks requiring physical exertion and stamina. I think I have this done and have highlighted how I fit in the 20 points.
But... my RA also affects my upper and lower limbs significantly. Can I also appeal the impairment rating for my upper limbs (currently 5) and lower limbs (currently 0) or will it be dismissed because I have already asked for the higher rating on table 1? I have already noted that my husband is my carer and receives carers allowance in my appeal against table 1.
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Post by murphy on Oct 17, 2016 19:49:35 GMT 7
Edit: I just reread your post. RA and fibro both produce persistent fatigue and it is the fatigue/loss of stamina component of these conditions that should collectively be scored under Table 1.
Then the separate scores for RA damage/inflammatory impact on joints come in under the upper and lower limb tables.
So, I would appeal the RA impairment of upper and lower limb function. Those two tables are all about what those limbs can do - your argument (I'm assuming) is that chronic inflammatory process (not lack of stamina) limits what those limbs/joints are capable of.
It might sound like splitting hairs, but you're arguing different impairment types (inflammation and restricted joint mobility (upper limb, lower limb), AND loss of stamina). Fatigue from the same condition can't be counted twice, but fatigue can be counted on Table 1 while loss of joint function can be counted on the respective tables.
It's a tangle to get your head around, and no surprise Satanlink's minions don't get it right. Edit: and even if I'm wrong, I believe it's an argument for the tribunal member to decide. If you don't put it forward then you stand zero chance; there's nothing to be lost in presenting the argument.
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Post by krystal on Oct 17, 2016 23:50:14 GMT 7
If one condition impacts your functionality of more than one table, you should get an impairment rating for each table your impairment/s affect.
From the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Single condition causing multiple impairments (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.
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I would suggest that, for the AAT review, you get your doctor to write a report using the exact wording in the tables at the level that you think you should get.
For instance, Table 1 (20 points) states that:
(1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (b) 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 3 hours.
So your doctor could report that:
Tasjo constantly experiences shortness of breath, fatigue when performing light physical activities and cannot walk around a shopping centre or supermarket without assistance, cannot walk from a carpark into a shopping centre with out assistance, use public transport or perform light day to day household activities. Assistance is required in all these tasks which is provided by Tasjo's husband and carer (fill in name). Further, Tasjo does have extreme difficulty sustaining even sedentary or stationary tasks for longer than 1 1/2 hours (or whatever) at a time due to chronic pain in upper/lower thigh and (where ever else and what ever other reason you can't be stationary for a 3 hour shift).
In my view under Table 1 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension), Tasjo's impairment under Table 1 should be 20 points.
Signed Tasjo's doctor.
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Take each of the tables that your functionality is affected by and get your doctor to report exactly what the table says and then give his/her opinion on what rating you should be assigned.
As long as you doctor also reports that these functioning ratings applied at the date of the original claim, the AAT will take the information as further information for clarity and have to rate you on each table again in relation to the new report from your doctor.
Sorry for the long post, but I hope it helps.
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Post by tasjo on Oct 18, 2016 3:01:18 GMT 7
Thank you so much both of you... thats what I thought but was second guessing myself. Murphy - that is exactly what I am trying to appeal, that the fatigue of 2 chronic conditions increases my impairment on table 1, but the inflammatory and degenerative nature of RA, and the muscular nature of Fibro impacts on my ability to use my upper and lower limbs.
Another 'complication'... this application was done in March this year but I had another claim that got 'lost' somewhere (I never had a JCA for it) in Sept 2015 when I actually finished work. If I have medical information that relates to this claim (I was pretty naive and only provided very minimal info partly because I - wrongly - assumed they would also use the carers info) can I include it in this appeal or does it need to be a separate on once this one is done? I will be appealing the start date if this claim gets approved.
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Post by tasjo on Oct 18, 2016 3:13:10 GMT 7
Sorry... one other thing... In June 2015 I had a JCA for voluntary participation with a Disability Services Provider... my original application for DSP was more than 13 wks after that JCA was done... can I appeal that it is irrelevant to either my current or original application as CL have referred to it in my 2nd JCA?
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Post by murphy on Oct 18, 2016 7:36:58 GMT 7
tasjo Your medical evidence can only address the period before claim and up to 13 weeks after. That does not mean your practitioners cannot write reports now, but they must limit their assessment to your conditions/impairments during that period. Also, I would add that the descriptors in Table 1 (1)(a)(i)-(iv)(20 points) are alternatives -- note the "or" -- you do not need to meet all of the descriptors. The Impairment Tables are some 60 pages, but in your case it may be prudent to print out the whole lot and discuss them with your practitioners. Table 1: (1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and(b) 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 3 hours.
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Post by tasjo on Oct 21, 2016 8:59:17 GMT 7
Another question... do the medical records such as xrays have to be completed within the 13 wk window? Or is it enough for my doctor to report that the damage shown relates to that time? I want to include my latest nuclear bone scan results in my appeal but it is outside the 13 wks
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Post by murphy on Oct 21, 2016 9:19:23 GMT 7
tasjo This is where it gets tricky. In theory, the AAT may only consider primary evidence such as imaging from within the 13 week period. BUT, if I were you I would be trying to get the bone scan in by asking your doctor comment on whether the same degree of damage/illness must have been present during the 13 weeks. With RA, it's not like you'd have fantastic joints in March only to have them look shocking on imaging in July. You may strike a tribunal member who will let your doctor's comment in. Be prepared, though, for them to disallow it. I have seen members comment that evidence falls outside the 13 weeks and encouraging the claimant to reapply. In a nutshell, include it. You need to at least try.
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Post by tasjo on Oct 21, 2016 10:35:51 GMT 7
Thanks... that was my way of thinking too - I'll do the same with the reports from the 2nd neurologist I saw as he had a different view to the 1st one but the symptoms were noted as being under investigation
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Post by mikey on Oct 23, 2016 17:21:48 GMT 7
This latest case at the AAT, which overturned granting of the DSP by the SSAT, referenced his regards evidence outside the 13 week window. They are really sticking to the rules. "In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances"
www.austlii.edu.au/au/cases/cth/AATA/2016/826.html
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Post by murphy on Oct 23, 2016 17:48:54 GMT 7
Yeah, Member Thompson produces some humdinger decisions.
Slightly off topic, but this was also of interest in the Tran decision:
"As indicated, the Secretary contended that the proper interpretation of that requirement is that “an appropriately qualified medical practitioner” includes a psychiatrist but does not include a psychiatric registrar.
The Secretary further contended that this was not a case where Mr Tran could rely on evidence from a general medical practitioner and a clinical psychologist to support a diagnosis of a mental health condition."
The Intro to Table 5 expressly states that "the diagnosis of a condition must be made by an appropriately qualified medical practitioner (the includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)."
But here we have the Secretary going all out on the words "appropriately qualified," to the exclusion of the surrounding words.
It didn't succeed, but this decision shows the Secretary is going for the jugular.
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Post by murphy on Oct 23, 2016 17:53:50 GMT 7
I think, mikey, that the Tran decision also tells us that if a claimant attempts, at tier one AAT, to get it evidence relating to the condition(s) outside the 13 week period, the Secretary is highly likely to appeal if the decision is favourable to a claimant. But tasjo, I still think you've gotta try, using the methods that our members have described in this thread.
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Post by tasjo on Oct 24, 2016 15:43:58 GMT 7
I will definitely try... I spoken to my psychologist today and will be aiming to get all my impairment points increased... I'm aware that CL may well appeal my appeal if it is in my favour, but my main conditions were diagnosed, treated and stabilised when I first applied - the main 'extra' information I want to submit is bone scans... I am reasonably confident that all my info relates to the right time period
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Post by murphy on Oct 24, 2016 17:50:29 GMT 7
It sounds like you are putting together a good body of evidence, tasjo.
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Post by Denis-NFA on Oct 26, 2016 21:38:40 GMT 7
I will definitely try... I spoken to my psychologist today and will be aiming to get all my impairment points increased... I'm aware that CL may well appeal my appeal if it is in my favour, but my main conditions were diagnosed, treated and stabilised when I first applied - the main 'extra' information I want to submit is bone scans... I am reasonably confident that all my info relates to the right time period Hey, all the very best tasjo
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