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

[2021] AATA 3479

Achmar and Secretary, Department of Social Services (Social services second review) [2021] AATA 3479 (23 September 2021)

Division:GENERAL DIVISION

File Number(s):      2020/7021

Re:Bob Achmar

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Emeritus Professor P A Fairall, Senior Member

Date:23 September 2021

Place:Sydney

The decision under review, being the decision of the AAT1 dated 25 September 2020, is affirmed.

..........................[sgd]............................................

Emeritus Professor P A Fairall, Senior Member

Catchwords

SOCIAL SECURITY – disability support pension – no program of support – whether severe impairment – thyroid cancer -  spinal condition – mental health condition not fully diagnosed – upper limb condition affecting hands and arms not severe impairment – other conditions not fully diagnosed, treated and stabilised - decision under review affirmed.

Legislation

Social Security Act 1991 (Cth) ss 94

Social Security (Administration) Act 1999 (Cth)

Secondary Materials

Social Security Guide

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Emeritus Professor P A Fairall, Senior Member

23 September 2021

INTRODUCTION

1. This matter arises by way of second tier review of a decision of the Social Service and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal).

2. The Applicant is in his early fifties. In 1996, he suffered an injury when a motor vehicle in which he was travelling was rear-ended. He told the Tribunal that he was working before the accident but had struggled to find employment thereafter.[1] He struggles with depression and various physical ailments, including a bout of thyroid cancer in 2018. He says that he was first granted a full pension in 2000.[2] The Tribunal does not have complete details of his claims history, although this is not his first claim for Disability Support Pension (DSP).[3] This application relates to his DSP application dated 23 August 2019.

   [1] Transcript, 16 July 2021, 28.  A Job Capacity Report (JCA) completed in 2016 reports notes that he last worked in March 2016 for 3 months labouring. Prior to that worked June 2015 for Tangalooma resort; prior to that several years spent working at fruit markets: T10/124.

   [2] Transcript, 16 July 2021, 12.

   [3] Respondent’s Statement of Facts, Issues and Contentions (RSFIC): para 3.2-3.3. The JCA Reports dated 7 September 2016 and 22 August 2017 are in the T docs: T10/121; T20/138)

   CHRONOLOGY

3. A Job Capacity Assessment (JCA) took place on 7 November 2019, and the report was submitted on 31 January 2020.[4] The reviewer considered the following conditions: thyroid cancer, spinal disorder, and depression. His application was declined by Services Australia (‘Centrelink’).

   [4] T60/247-254.

4. A further JCA assessment took place on 21 April 2020, and the report was submitted on 22 May 2020.[5] The reviewer considered the following conditions: thyroid cancer, depression and chronic pain. On 27 July 2020, the authorised review officer (ARO) affirmed the Centrelink decision,[6] and on 25 September 2020, the AAT1 affirmed the ARO’s decision.[7] The AAT1 found that the Applicant was ineligible because he did not have 20 impairment points across the Impairment Tables. There was therefore no need to determine whether he had a continuing inability to work (‘CITW’).[8]

   [5] T64/261-273.

   [6] T66/276

   [7] T2/5.

   [8] T2/11.

5. The present proceedings constitute a second-tier review of the AAT1 decision.[9]

   [9] T1/1. The applicant lodged his application on 9 November 2020.

6. The relevant 13- week qualification period is from 23 August 2019 to 22 November 2019.

   THE HEARING

7. The application was heard by the Tribunal by telephone on 16 July 2021. Supplementary submissions relating to the program of support requirements were received by the Tribunal on 22 July 2021.

8. The Applicant told the Tribunal that he has ongoing muscular-skeletal pain and other health problems. He provided a number of medical reports, as detailed below. He was cross-examined by Ms Boyd, who appeared for the Respondent.

9. In these second-tier proceedings, Ms Boyd contended that the Applicant had not actively participated in a program of support (POS). As explained in the next section, a person who has not actively participated in a POS cannot succeed unless he or she 20 or more impairment points under a single Impairment Tables.

10. I am satisfied that, on the evidence, the Applicant has not actively participated in a POS, and have proceeded to consider whether the Applicant had a severe impairment, as defined.

11. I am also satisfied that the Applicant does not have a severe impairment, and therefore does not have a CITW. He is therefore not eligible for DSP.

12. I therefore affirm the decision under review. The remaining paragraphs provide a more complete explanation of my decision.

    THE LeGISLATIVE REQUIREMENTS FOR DSP

13. The basic requirement for DSP under section 94 of the Social Security Act 1991 (Cth) (the Social Security Act) is a continuing inability to work (‘CITW’) because of a physical, intellectual or psychiatric impairment assessed at 20 points or more under the Impairment Tables, or the participation in a program administered by the Commonwealth known as a ‘wage supported system’.[10]

    [10] The Impairment Tables are contained in a legislative instrument: Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth): T3/25.

14. The CITW requirement is defined in subsection 94(2) of the Social Security Act as follows:

    2A 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 subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support--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.

15. A ‘severe impairment’ is defined in subsection 94(3B) as follows:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

16. ‘Work’ is defined in subsection 94(5) as follows:

    “work" means work:

    (c) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and

    (d)that exists in Australia, even if not within the person's locally accessible labour market.

17. There are therefore three cumulative CITW requirements under subsection 94(2), each being a necessary condition:

    ·Active participation in an ‘approved program of support’ (POS) over the preceding three years, unless the impairment is a severe impairment; 

    ·The impairment must be of itself sufficient to prevent the person from doing at least 15 hours per week on wages that are at or above the relevant minimum wage independently of a program of support within the next 2 years; 

    ·The impairment must be of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or 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 at least 15 hours per week on wages that are at or above the relevant minimum wage independently of a program of support within the next 2 years.

    PROGRAM OF SUPPORT REQUIREMENTS

18. A person who has not actively participated in an approved POS is not eligible for DSP unless the impairment is a severe impairment. A ‘severe impairment’ is defined in subsection 94(3B) as follows:

    A person's impairment is a severe impairment if the person's impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

19. Subsection 94(5) defines ‘program of support’ as a program that:

    (e) is designed to assist persons to prepare for, find or maintain work; and

    (f)either:

    (i)     is funded (wholly or partly) by the Commonwealth; or

    (ii)    is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.

20. Subsection 94(3C) states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument (‘the Instrument’) made by the Minister for the purposes of this subsection.[11]

    [11] The relevant instrument is the Social Security (Active Participation for Disability Support Pension) Determination 2014: subsection 7(2): T3, 92.

21. I note the following participation requirements relating to the period of participation as defined in section 7 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (‘the Instrument’):

    7 Requirements for active participation

    1A person has actively participated in a program of support if the person satisfies the following requirements:

    (a)the person has:

    (i)     complied with the requirements of the program of support; and

    (ii)    participated in a program of support during the relevant period;

    (b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;

    (c)subsection (6) is satisfied in relation to the person and the program of support.

    Requirements for period of participation in program of support

    2This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.

    3This subsection is satisfied in relation to a person and a program of support if:

    (a)the duration of the program of support was less than 18 months; and

    (b)the person completed the entire program during the relevant period.

    4This subsection is satisfied in relation to a person and a program of support if:

    (a)the program of support was terminated before the end of the relevant period; and

    (b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.

    5This subsection is satisfied in relation to a person and a program of support if:

    (a)at the end of the relevant period, the person is participating in the program of support; and

    (b)the person 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.[12]

    [12] T3/94.

22. The relevant period is relevant defined as follows:

    relevant period means:

    (c)in relation to a person (other than a reviewed 2008-2011 DSP starter) whose impairment is not a severe impairment—the period of 36 months ending immediately before the day on which the claim for disability support pension is made or is taken to have been made by the person…

23. ‘Active participation’ therefore requires at least 18 months participation within the period of 36 months ending immediately before the day on which the claim for DSP was made or is taken to have been made: subsection 7(2) of the Instrument.

24. I note that periods of exemption or suspension are not counted in the period of service. Subsection 8 of the Instrument provides:

    To avoid doubt, any period during which a person who has started a program of support does not participate in the program for any reason (including as a result of any exemption, relief or suspension from the program) is not to be counted in determining, for the purposes of section 7, the length of the period during which the person has participated in the program.

25. The Applicant applied for DSP on 23 August 2019. The relevant three-year period under the POS active participation requirement is from 23 August 2016 to 22 August 2019. ‘Active participation’ therefore requires at least 18 months participation within this period, that is, 547 days.

26. The Program of Support Calculator (Calculator) is maintained by the Department of Employment, Skills, Small and Family Business. The relevant calculation for the applicant has been provided to the Tribunal.[13] 

    [13] T71/333-5.

27. The Calculator shows that the Applicant was in a program of support throughout the relevant period (23 August 2016 to 22 August 2019). He accrued 38 days of active participation in Jobactive. On 6 June 2018, he was transferred to the DES-Disability Management Services program, where he remained until the end of the relevant period. He accrued 266 days of active participation in the DES program. He therefore completed 304 program support days in the relevant period, rather than the required 547 days, and thus does not satisfy the requirements of active participation.

28. The exact dates are set out in the following Table.

POS	Employment Services Provider	Start date	End date	Total days spent in POS during relevant period	Active participation days
Jobactive	Max Employment	23/8/2016 (start relevant period)	5/6/2018	652	38
DES-Disability Management Services		6/6/2018	22/08/2019 (end relevant period)	443	266
1095	304

1. Departmental records indicate that the Applicant received a Temporary Medical Incapacity Exemption from 22 February 2019 to 21 August 2019, and a further exemption from 22 August 2019 to 15 November 2019.

2. There is no evidence before the Tribunal that the Applicant completed a POS with a duration of less than 18 months during the relevant POS period (subsection 7(3)), or that he was participating in a POS at the end of the relevant period, and was prevented, solely because of his impairment from improving his capacity to prepare for, find or maintain work through continued participation in the program (subsection 7(5)).[14]  I note that at the end of the relevant period (22 August 2019) he was not participating in a POS, having been given a medical exemption prior to that date.

   [14] T3/94.

3. Nor is there any evidence that a particular program was terminated before the end of the relevant period because he was unable, solely because of his impairment, to improve his capacity to prepare for, find or maintain work through continued participation in the program (subsection 7(4)).

4. I find that the Applicant has 304 active participation days during the relevant period. He therefore does not have the required number of active participation days.

5. Therefore, his claim for DSP cannot succeed, for the reasons explained above, unless at least one of his medical conditions can be classified a severe impairment under a single Impairment Table. . 

6. A person’s eligibility for DSP is assessed over a 13-week period commencing after the day on which the claim is made (the qualification period).[15]

   [15] Social Security (Administration) Act 1999 (Cth) (the Administration Act), clause 4 of Schedule 2.

7. The relevant 13-week qualification period is therefore 23 August 2019 to 22 November 2019.

8. The task for the Tribunal is to determine whether any of the Applicant’s permanent medical conditions is a severe impairment.

   APPLYING THE IMPAIRMENT TABLES

9. Subsection 6(3) of the Impairment Tables states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent (in accordance with subsection 6(4) of the Impairment Tables) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.

10. Therefore, if the Applicant’s condition causing impairment is not ‘permanent’, the impairment resulting from this condition cannot be assigned an impairment rating. This rule also means that even if the Applicant’s condition causing the relevant impairment is ‘permanent’ but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Impairment Tables.

11. Subsection 6(4) provides the meaning of “permanent” for the purposes of subsection 6(3): A condition is permanent if it :

    (d)has been fully diagnosed by an appropriately qualified medical practitioner;

    (e)has been fully treated;

    (f)has been fully stabilised; and

    (g)is more likely than not, in light of available evidence, to persist for more than two years.

12. Under subsection 6(5), in determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (h)whether there is corroborating evidence of the condition; and

    …

    (i)what treatment or rehabilitation has occurred in relation to the condition; and

    (j)whether treatment is continuing or is planned in the next two years.

13. Subsection 6(6) defines ‘fully stabilised’ for the purposes of paragraph 6(4)(c) and subsection 11(4) of the Impairment Tables. It provides that a condition is fully stabilised if

    (k)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

    (l)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.

14. Subsection 6(7) provides that, for the purposes of subsection 6(6) of the Impairment Tables, reasonable treatment is treatment that:

    (m)is available at a location reasonably accessible to the person; and

    (n)is at a reasonable cost; and

    (o)can reliably be expected to result in a substantial improvement in functional capacity; and

    (p)is regularly undertaken or performed; and

    (q)has a high success rate; and

    (r)carries a low risk to the person.[16]

    [16] See RSFIC 4.15 – 4.20.

    PAIN AS A SEPARATE CONDITION

15. Subsection 6(9) of the Impairment Tables states that there is no Table dealing specifically with pain and when assessing pain the following must be considered

    (s)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (t)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

    (u)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

16. I note the contrast drawn in this section between acute pain as a symptom and chronic pain as a condition. In the case of chronic pain any resulting impairment should be assessed using the Table relevant to the area of function affected: section 6(9)(b).

1. The Social Security Guide states:

   Assessing functional impact of pain

   There is no longer a Table specifically dealing with pain.

   Acute pain is a symptom that may result in a short-term loss of functional capacity in more than one area of the body.

   Chronic pain can be a medical condition and where it has been fully diagnosed, fully treated and fully stabilised, any resulting impairment should be assessed using the Table that is relevant to the function affected.

   Chronic pain can also be a symptom of a permanent condition. 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. Selecting Tables for chronic pain:

   • 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.

   The following scenarios show how the Tables should be applied when assessing chronic pain to avoid double counting:

   • 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.

2. I turn to consider the medical evidence.

   MEDICAL EVIDENCE

3. There are four JCA reports before the Tribunal, including reports dated 7 September 2016 and 22 August 2017.[17]

   [17] T10/121; T20/138

4. The 2016 report identified intervertebral disc disorder, depression, and endocrine system dysfunction.[18] The latter was related to the thyroid condition dealt with in later reports.

   [18] T10/122

5. The 2016 report found that the Applicant had reduced work capacity as a result of lumbar pain and depression, and a reduced ability to tolerate manual tasks including restrictions to bending, lifting and carrying loads. His depression was likely to result in reduced stress tolerance in the workplace and impact on role suitability and work capacity. A period of reduced work capacity was recommended to allow access to primary/secondary treatment/intervention.[19]

   [19] T10/124.

6. The 2017 report identified the following conditions: thyroid cancer/tumour, spinal disorder, and depression.[20]

   [20] T20/138.

7. A further JCA took place on 7 November 2019, and the report was submitted on 31 January 2020.[21] The reviewer considered the following conditions: cancer, spinal disorder, depression.

   [21] T60/247-254.

8. Another JCA took place on 27 April 2020, and the report was submitted on 22 May 2020.[22] The reviewer considered cancer, depression and chronic pain, taking into account the 2019 JCA review, and reports by various medical professionals, including the Applicant’s pain management specialist Dr Gibson.

   [22] T64/259-273.

9. The examination before AAT1 proceeded as follows. I have indicated in parenthesis the conclusions reached by AAT1.

   Condition 1 – Thyroid Cancer  (NIL)

   Condition 2 – Chronic pain syndrome affecting the spine (10 Points)

   Condition 3 – Mental Health condition (NIL)

   Condition 4 – Upper Limb conditions affecting hands and shoulders (NOT ASSESSED)

   Condition 5 – Other Conditions (tinnitus; irritable bowel syndrome; and osteoarthritis in the knees). (NOT ASSESSED)

10. Since lodging his application for review, the Applicant has provided the following new medical evidence:

    (a)Health Summary Sheet completed by Dr Matar on 8 February 2021;

    (b)medical report from Dr Matar dated 8 February 2021; and

    (c)a chest CT performed at Alfred Imaging on 10 August 2020.

11. Dr Matar’s Report dated 8 February 2021 is instructive and admitted on the basis that it may cast light on the Applicant’s medical condition during the qualification period (23 August 2019 to 22 November 2019).

    Mr Bob Achmar is suffering from multiple major medical conditions including:

    1-    thyroid cancer treated with surgery then the patient was found to have a positive lymph node and he had radiation therapy in 2016.

    2-    long-standing ADHD, severe major depression and generalised anxiety disorder. These conditions are multifactorial and started after being in a civil war and being subjected to sexual harassment and abuse as a child from a family member. The symptoms became much worse after the thyroid cancer and the cancer in the node in the neck.

    3-    chronic low back pain secondary to a motor vehicle accident in 1996. The condition has been gradually deteriorating because of advancing age and the nature of the condition.

    4-    tinnitus secondary to the motor vehicle accident in 1996.

    5-    chronic neck pain following the moderately accident in 1996. The neck pain has been deteriorating specially in the last few years and forcing the patient to see a pain clinic and a pain specialist and having multiple injections to the neck in an attempt to reduce the symptoms but unfortunately unsuccessfully.

    6-    irritable bladder, started about 2 years ago. It is unknown if it is related to the medications he has been taking or it is related to his back.

    7-    osteoarthritis of both hands, wrists and knees. Multiple treatments tried with limited success including physiotherapy and home-based exercises and injections.

    8-    Right rotator cuff pathology and bursitis. The patient had multiple investigations and he saw multiple specialists including neck surgeon, radiation oncologist, endocrinologist, pain specialist, psychologist, psychiatrist, and multiple radiologists performing procedures and injections to various parts and joints in addition to multiple other doctors.

12. Dr Matar listed the following active problems.

Condition 1 – Thyroid Cancer

1. The 2020 JCA found that the thyroid condition was fully treated and stabilised. The Report notes:

   The client's thyroid condition is assessed as fully diagnosed, treated and stabilised during the relevant claim period of 23/08/2019 - 21/11/2019. Despite long term and ongoing specilist (sic) care there is evidence of persisting symptoms and therefore significant improvement is not expected within the 24 months from the date of claim.[23]

   [23] T64/262.

2. I note the following reports;

   ·On 14 November 2018, Dr Leow, rheumatologist and interventional pain specialist, reported to Dr Matar that he had assessed the Applicant at the RPA Pain Management Centre on 14 November 2018 and that the Applicant had “a right neck scar consistent with his known surgery”.[24] No functional impairment from the condition was reported, other than an increase in weight.

   ·On 19 November 2018, Dr Donnelly reported to Dr Matar that the Applicant had returned for review and that “his progress thyroid ultrasound failing to demonstrate any evidence of recurrence. He will have progress thyroid function tests”.[25]

   ·On 15 April 2019, Dr Donnelly reported to Dr Matar that an ultrasound of the Applicant’s neck “fail[ed] to demonstrate any evidence of thyroid CA and he remains on replacement Oroxine”.[26]

   ·On 8 August 2019, Dr Donnelly reviewed the Applicant and reported to Dr Matar that he was increasing the Applicant’s Oroxine dosage.[27]

   [24] T27/162-163.

   [25] T31/169

   [26] T41/185.

   [27] T49 /199.

3. The AAT1 (25 September 2020) found that the thyroid condition was fully treated and stabilised, but awarded nil points under Table 1 Functions requiring Physical Exertion and Stamina.[28]

   [28] T2/8.

4. In light of the medical evidence presented to the Tribunal, I agree with this assessment.

   Associated Condition – Numbness of the Skin

5. In evidence to the Tribunal, the Applicant refers to “complete numbness on the right side of my face, back of my head, right shoulder.” The Applicant gave evidence along these lines:

   I felt something in my throat.  I thought when I get back to Brisbane, which was about a week later after Mother's Day, I had some tests.  Cut the story short, they found out I had thyroid cancer.  I had the operation at Redcliffe Hospital.  So that's got nothing to do with the numbness at all.  The numbness comes from two things:  from the car accident that I had, because I've got problems in my neck, the disc problems; but to do the follow-up on the thyroid, they found tumours in my right lymph node.  I had the operation in January at the Royal Brisbane Hospital from an ears, nose, throat surgeon - a female, I've forgotten her name.  During the operation they had to take out a superficial nerve out of my neck or shoulder or wherever, in that region.  So that came to complete numbness on the right side of my face, back of my head, right shoulder.  I've got full feelings in my arm and fingers on the right side, but I haven't got feeling, as I said, in those areas.  So the numbness really comes from the second operation.  So it's got nothing to do with the thyroid operation. 

   [M]entally - it affects me more mentally than anything, you know.  Like it confirms something.  If you get me a job now, I'll take it, but I won't last.  If you look at my work history from 2000, when I was first given a full pension, I was in my early 30s, I go for job interviews, as soon as you mention car accident, tompo (sic), they knock you back.  Back problems, they knock you back. I got an opportunity to move to Brisbane, so I left Sydney, moved to Brisbane. I got a job there with a friend, Member.  I lasted probably three months with him. But before I went to Brisbane, I rang up Centrelink, and I said look, I want to give back my full pension, because I want to go back to work.  So mentally I was still okay.  Physically I wasn't, but when you're still young you push through the pain level.  And as time went by - if you look at my work history, I find another job, last a bit longer, stopped work because I couldn't handle it anymore.  I went to Centrelink and I said look, I want to keep going and look for work.  I don't want to get the full pension.  But the turning point of my life was - well, one of them was when I was diagnosed with cancer.  That was just too much for me to handle.  If you haven't been through that, you wouldn't understand what going through.  So mentally I'm a bit down, but if you look at Dr Toohey's report of my history when I was a little kid, that all comes into it as well.  I don't really like to talk much about it.  That's where I get a little bit tense and aggressive.  That's why mentally I'm not really up for it.  But again, if I have to go and look for work, I will, but I know I wouldn't last because mentally I can't do it anymore.[29]

   [29] Transcript, 16 July 2021, 12.

6. I note the 2020 JCA report which stated:

   Symptoms and functional impacts: Historical medical evidence (Dr Zaer, GP, 20/6/2017) notes sensory damage to right side of neck, upper arm and weakness right side of body - particularly upper limb. Dr Donnelly, 08/08/2019 reported the client is complaining of some left hypochondrial pain, and a CT was arranged to exclude any underlying pathology. Dr Donnelly reported the client is bothered significantly by his neck having had injection and will be reviewed by the pain clinic regarding this in the next few days. The client reported general weakness and fatigue at times.

7. Table 14 (Functions of the Skin) is to be used where the person has a permanent condition resulting in functional impairment related to disorders of, or injury to, the skin.

8. The AAT1 also stated:

   In terms of functional impairment, Mr Achmar told the tribunal in oral evidence that he had a scar across his neck and numbness to the skin of his neck and shoulder. The thyroid cancer aggravated his mental health, as he was stressed about a recurrence.

   The tribunal noted the medical documentation of functional impairment was limited. The letter from oncologist Dr Donnelly dated 19 November 2019 noted numbness in the neck and shoulder but no other impairment.

   The tribunal found the thyroid cancer was in remission on the date of claim for DSP. There was numbness associated with prior surgical scarring. However, this level of impairment was not sufficient to generate a rating under the Impairment tables.

9. Table 14 describes the circumstances that must apply for a finding of ‘severe functional impairment, as described below:

   6Regarding the person’s significant modifications to, or inability to perform, daily activities, at least two of the following apply:

   (a)the person has severe difficulties performing activities involving use of their hands due to major skin lesions, dermatitis, skin allergies, scarring or nerve pain (e.g. severe allodynia) and is unable to perform some tasks involving use of the hands;

   (b)the person has severe difficulties performing daily activities due to scarring from burns which restricts movement of limbs or other parts of the body (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

   (c)the person has severe difficulties performing daily activities due to extensive or severe lesions on skin which require creams or dressings and limit movement and comfort (e.g. may not be able to perform some tasks, requires additional time to perform some tasks, or some tasks need to be modified);

   (d)the person has severe difficulties performing activities involving exposure to sunlight due to heightened sensitivity to sunlight (e.g. as a result of certain medications, past history of skin cancers, albinism, or other genetic condition) and can spend only a brief period of time in sunlight each day even when wearing sunscreen and protective clothing;

   (e)the person is not able to wear clothing or footwear likely to be required in their workplace, including items of personal protective equipment (e.g. protective glasses, ear defenders, safety jacket, gloves, safety boots, safe shoes or hard hat).

10. The evidence before the Tribunal does not support a finding of severe impairment under Table 14. There is nothing to suggest that any of these criteria apply to the Applicant during the qualification period.

    Condition 2 – Chronic pain syndrome affecting the spine

    Table 4 – Spinal Function

11. The Introduction to Table 4 - Spinal Function provides:

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

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

    · Self-report of symptoms alone is insufficient.

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

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

    o a report from the person’s treating doctor;

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

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

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

12. The AAT1 found that the Applicant’s chronic pain syndrome affecting the spine was fully diagnosed, treated and stabilised, and assigned a moderate functional impact (10 points) under Table 4. There is a moderate functional impact on activities involving spinal function if:

    7The 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).

13. The AAT1 described the evidentiary basis for that finding as follows:

    The tribunal noted the medical certificates dated 2 June 2016, 22 July 2016, 9 January 2017, 3 April 2017, 15 June 2017, 9 February 2018, 22 February 2018, 24 May 2019, 13 August 2019 and 27 July 2020, as well as letters from the pain clinic staff dated 14 November 2018, 8 May 2019, 20 May 2019, 27 May 2019, and 2 December 2019, and medical imaging studies dated from 2016 to 2019 and nerve conduction studies dated 17 December 2018.

    The medical documentation outlined a diagnosis of degenerative changes predominantly affecting the cervical and lumbar spine. The resulting chronic pain syndrome had been treated with specialist review, pain management review, interventional injections of joints, greater and lesser occipital nerves and the epidural space, hydrotherapy, physiotherapy and analgesic medications.

    The tribunal found Mr Achmar had a chronic pain syndrome arising in the spine. The condition was fully diagnosed, treated and stabilised on the date of claim for DSP.

    As a result of finding that the chronic pain syndrome was fully diagnosed, treated and stabilised, it followed that the resulting functional impairment could be rated under the relevant Impairment Tables.

14. The Secretary accepts that the Applicant’s chronic pain syndrome affecting the spine was fully treated and stabilised. The RSFIC identifies a number of medical reports relating to Table 4 over the period July 2016 to February 2021:

    On 20 July 2016, Dr Thomas referred the Applicant to the Outpatients Pain Department, Redcliffe Hospital “for multiple symptoms including paresthesia, joint pains, headaches and nausea” (T6 p113).

    On 4 August 2016, Dr Thomas also referred the Applicant to the General Medicine Department of Redcliffe Hospital for review of his multiple symptoms in a “general medical setting, in addition to neurological review” (T7 p115).On 6 September 2016, Dr Thomas reported to Centrelink that the Applicant has medical issues including “generalised pain ?cause … Multiple investigations have been performed, and show … degenerative changes in the cervical and lumbosacral spine with possible C7 nerve root impingement . He is currently awaiting … general medicine and neurology (for generalised pain symptoms) and neurosurgical physiotherapy team (for ?C7 nerve root impingement) (T9 p119).

    On 5 June 2017, the physiotherapy department of Royal Brisbane and Women’s Hospital confirmed an appointment for 19 June 2017 (T16 p133).

    On 20 June 2017, Dr Zaer completed a Medical Certificate stating the Applicant had “2. chronic back pain – all levels, … 4. weakness right side of body – particularly upper limb … As a result, he needs physiotherapy, psychotherapy, pain relief … he has been going through this for about two years now” (T18 p135).

    On 15 August 2017, a CT of the lumbar spine revealed “moderate degeneration present throughout the spine. Mild degeneration present within the SI joints. No significant adenopathy” (T19 p136).

    On 6 July 2018, a CT of the cervical spine revealed that the Applicant had cervical degenerative spondylosis with nerve root compression at the C5/6 level and low-grade facet joint arthrosis within the cervical spine (T22 p148). A CT of the lumbosacral spine also revealed lumbar degenerative spondylosis with no spinal canal stenosis or nerve root compression. There was facet joint arthrosis throughout the spine, most severe at L3/4 and L4/5 levels (T22 p150).

    On 14 November 2018, Dr Leow reported that he examined the Applicant at the RPA Pain Management Centre on 14 November 2018 with respect to persistent cervical and lumbar spine pain (T27 p162). The Applicant described the cervical pain as affecting his hands and fingers, aggravated by movement particularly on turning and lateral flexion. With respect to his lumbar pain, the Applicant reported that it radiated down to his knees and thighs (T27 p162). Further, he reported “he did not perceive any benefit from the panadeine forte and oxycodone merely made him feel relaxed”. On examination, Dr Leow noted that the Applicant had poor cervical and lumbar spine movement; “Spurling tests and lumbar spine extension aggravated the symptoms. He was generally allodynic over the shoulders. There was no punctate allodynia down the spine or along the paravertebral areas. Neurological examination revealed subtle weakness in the wrist extension otherwise normal findings in the remaining neurological examination of the upper and lower limbs (T27 p163; T28 p165).

    Dr Leow stated that he had discussed the interaction between pain cognition and mental health with the Applicant; had organised for a cervical MRI “to exclude radiculopathy” and a bone scan; started the Applicant on amitriptyline 10mg at night to be increased every five days; and referred him to the physiotherapy department (T27 p163).

    On 19 November 2018, a copy of the Multidisciplinary Pain Management Case Discussion was sent to Dr Matar (T30 p167). A summary of the issues stated the Applicant had “cervical and lumbar back pain which patient attributes to MVA in 1996. Imagining of C and L spine showed mild/mod spondylosis”. Recommendations to be implemented at the pain centre included pain education with a psychologist; MRI and bone scan; review with Dr Leow; physiotherapy; and commencement of amitriptyline 10mg at night (T30 p167).

    On 14 January 2019, an MRI of the cervical spine at RPA Department of Radiology revealed “mild bilateral foraminal narrowing at C5/6 due to a disc bulge and facet joint osteophyte” (T34 p174).

    On 30 January 2019, the Applicant was reviewed at the RPA Pain Centre (T37 p179). Dr Leow suggested the Applicant have a “diagnostic medial branch block at C4/5 and C5/6 and thermal radiofrequency neurotomy at bilateral L3/4, L4/5 and L5/S1 to take place on Friday 1.2.2019”; he reiterated the need for the Applicant to undertake regular exercise; and that if the Applicant “has a response to the diagnostic medial block we will consider a thermal radiofrequency procedure” (T37 p180).

    On 1 February 2019, a bilateral block was conducted by Dr Gibson and the Applicant discharged, to follow up with Dr Leow on 25 February 2019 (T38 p181).

    On 27 February 2019, the RPA Pain Management Centre informed Dr Mahar that the Applicant failed attend his appointment that day (email: 8.2.2021).

    On 8 May 2019, the Applicant was reviewed by Dr Leow at the RPA Pain Management Centre (T43 p188). Dr Leow reported the Applicant had undergone “lumbar thermal RF but only derived three days of symptom relief from it. He tried amitriptyline but did not derive any benefit from it”. Dr Leow stated that the plan was for the Applicant to have a diagnostic greater and lesser occipital nerve block and if positive, to have a pulsed radiofrequency procedure (T43 p188).

    On 20 May 2019, Dr Leow performed a diagnostic occipital nerve block, with no immediate complications (T44 p190).On 27 May 2019, Dr Leow reviewed the Applicant and reported that he had a good response to the nerve block; the Applicant would be attending his first hydrotherapy session on 28 May 2019; the Applicant had been using panadeine forte to assist with his symptoms; he had suggested the Applicant have pulsed radiofrequency; physiotherapy and hydrotherapy; and cautioned him against the use of long term opioids (T46 p194).

    On 21 June 2019, a bilateral lessor occipital nerve pulsed radiofrequency neurotomies procedure was performed by Dr Gibson, to be followed up with Dr Gibson in the Pain Management Centre on 12 August 2019 (T42 p186; T47 p195).

    On 12 August 2019, the Applicant was reviewed by Dr Gibson at the RPA Pain Management Centre (T50 p200). Dr Gibson noted that the RF procedure had given the Applicant “a few days of good analgesia … but nil improvement in duration beyond that period” (T50 p200). Dr Gibson opined that he doubted further nerve blocks would assist and that “long term cognitive therapies and the hydrotherapy program that have been offered are more likely to be of benefit”. He also suggested trialling different desensitizing medications.

    On 6 September 2019, the Applicant underwent a CT of the thoracolumbar spine which revealed “ossification of the supraspinous ligament at T12/L1. This could be contributing to his symptoms” (T55 p238).

    On 12 December 2019, the Applicant was reviewed again by Dr Gibson at the RPA Pain Management Centre (T58 p243). The Applicant reported to Dr Gibson that the hydrotherapy, lumbar RF and home exercise program only helped for around one week “but then again returned to baseline” (T58 p243). Dr Gibson opined that he thought “some formal instruction in mediation would be helpful”, and he gave the Applicant a prescription for Ranitidine and a pain clinic psychologist referral for consideration of a mediation course.

    On 8 February 2021, in response to a direction from the Tribunal, Dr Matar provided a medical report stating that the Applicant had multiple conditions including chronic low back pain; chronic neck pain; the conditions were gradually deteriorating; and he had attended a pain management clinic (email: 8.2.2021).

1. Under Table 4, there is a severe functional impact on activities involving spinal function if:

   8The 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.

2. The Applicant gave evidence that he drove a car to Ashfield (he said that this was less than half an hour), and that he did it because he had no other choice. He had some difficulty looking around but he thought he was safe. He tried not to change lanes too often, but could adjust and turn his head to check his mirror.

3. In terms of the severe functional Impairment Table, he said that he could do these things, such as remaining seated for at least 10 minutes, but they caused pain. He said that sitting on the toilet was difficult because his legs went numb.

4. In evidence, the Applicant said, in reference to his driving:

   SENIOR MEMBER:  Do you feel safe when you’re driving?

   WITNESS:  Never 100 per cent, no.  The confidence level since the car accident, like, I don’t like driving on open roads if I really don’t have to.  It took me a while to get used to driving open roads.  That’s why I like to stay local.  But to go to my uncle’s, probably once every three, four weeks, you know, I bite the bullet and just focus on what’s in front of me.  But I’m not 100 per cent confident, no.

   SENIOR MEMBER:  If you needed to adjust your rear view mirror, could you do that?

   WITNESS:  I only leave it at one section.  I’ve only done it once when I’m sitting in the car.

   SENIOR MEMBER:  If it got bumped or something, do you think you could change it?

   WITNESS:  Of course you can, yes.

   SENIOR MEMBER:  And what about when you are merging with traffic?  Are you able to look to your (indistinct)?

   WITNESS:  Yes, I get a bit scared, because I can’t turn towards my right side as much as I could turn to my left side.  That’s where I get a bit frustrated.  That’s why I always stay in the left lane, you know?  So sometimes I take a gamble, which I shouldn’t, but I do because I look at the rear view mirror on the outside of the door.  Sometimes you have to look at your blind side, and that’s where I get a little bit scared and frustrated.  But it’s not easy, but again, sometimes it’s a gamble which I shouldn’t gamble when I’m driving.  Because the sharp pain - - -

   SENIOR MEMBER:  Have you thought of giving up your licence?

   …

   WITNESS:  It crosses my mind, but I can’t live without a car in case I need it for an emergency.  Then how am I going to get around?  Public transport, I find it frustrating, unless I have to take public transport into the city when I have to go and see my solicitor on a different matter.[30]

   [30] Transcript, 16 July 2021, 37-38.

5. I note that according to Dr Matar’s most recent report dated 8 February 2021, the conditions causing chronic pain are gradually deteriorating. In other words, his condition is getting worse.

6. The relevant assessment period for this DSP claim is the 13-week period from 23 August 2019 to 22 November 2019, two years ago.  It appears that during this period, although they caused some pain, he was able to do the things mentioned in the Impairment Table, such as performing overhead activities and turning his head.

7. Given the range of activities he engages in, including self-care, shopping and driving, I am satisfied that he does not suffer from a severe impairment under Table 4.

8. I am satisfied that his pain is related primarily to his chronic spine condition and that this is a permanent condition. The relevant Table for spinal function is Table 4 – Spinal Function. A rating under Table 4 includes consideration of the impact of pain and fatigue on the person's ability to undertake activities within the descriptor, and there is therefore no need to assess the pain condition under Table 1 - Functions requiring Physical Exertion and Stamina.

9. I agree with the AAT1 that his impairment during the qualification period was moderate (10 points).  A rating for severe impairment under Table 4 is not warranted for the relevant qualification period.

   Condition 3 –Mental Health condition:

   Table 5 Mental Health Function

10. Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment). The introduction to Table states:

    •The 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).

    •Self-report of symptoms alone is insufficient.

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

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

    o a report from the person’s treating doctor;

    o supporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

    o interviews with the person and those providing care or support to the person.

    •In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

    •The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects. This is to be kept in mind when discussing issues with the person and reading supporting evidence.

    •The signs and symptoms of mental health impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.

    •For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate

11. During the hearing, the Respondent conceded that the Applicant did suffer from a mental health condition.  She submitted that his mental health condition was not fully stabilised because the he had failed to engage in treatment. I note the following exchange:

    …I think we can agree that you've got a mental health condition, that it has a fairly significant effect on your day to day functioning and perhaps in how you deal with other people in addresses to you. But what I'm trying to get an understanding of is whether you agree that you have not undertaken the recommended treatment for your condition, and have an explanation as to why;  or whether you say that you have undertaken the recommended treatment and that Centrelink is wrong in contending that you haven't.  So what I'm trying to ask you is, do you agree that you have undertaken all the recommended treatment for your mental health condition?  Or do you say that you haven't and want to give an explanation as to why?---

    WITNESS Okay. In one way I have, because I went to see Dr Toohey, but I think I only had three visits. Then he recommended me back to the pain management clinic with Dr Gibson.  I asked Dr Gibson if I could get some help.  He said he'll look into it.  I haven't heard from him.  Then I visited him a couple of months ago, and I said can you please book me into see a psychiatrist?  And at the end of the visit, he said to me I won't recommend you anything until December. So I've got an appointment here.  Pain Management Clinic, Monday 2.20 pm, 29/11/21.  And he'll see me then and then he'll recommend me again to a psychiatrist. So as I said I'm trying, I'm putting my hand up, no one's answering my calls. So I just deal with it day by day.  That's the only thing I can do at the moment.  But to go out of my way and try to find $450 a visit, well, I can't afford that.  I am trying.  Because there's one thing I'll never do, is bite the hand that feeds me, and Centrelink's been looking after me since 1996.  Everything Centrelink has asked of me, I've done it.  I can't do more than that.  That's why I live like a hermit, so I don't have to - because I hate people staring at me, I hate people looking at me.  That's just me.  I've been like that all my life.  But the big scar that I've got on my neck, I'm sick and tired of people staring at the scar on my neck, so I've decided to grow a bear.  Because you hear little kids - no disrespect to the little kids, but you hear them say, oh mummy, look at the scar on that man's neck.  You know what I mean?  Things like that.  So that does get to me.  But I try to grow a thick skin, but sometimes I can't.  But that's life. That's why I live on my own. You know?  There's not much I can do.  There's not much more I can say. [31]

    [31] Transcript, 16 July 2021, 15.

12. The Applicant was especially dissatisfied with his session with Dr Toohey.

    I tried my best with Dr Toohey. I told him everything.  I don't normally open up about my past unless I have to.  And I tried my best with him. When he's talking to me he's staring out the window and I'm crying out for help. Then he turned around and said, look, I can't help you, you've got to go somewhere else. So he's passing the buck to someone else. You know what I mean? And I complained to Centrelink about that. I don't know what was done.[32]

    [32] Transcript, 16 July 2021, 13.

13. The AAT1 assigned nil points for this condition, on the basis that the condition was not fully treated and stabilised.[33] 

    [33] T2/9.

14. The Tribunal is satisfied that the Applicant suffers from poor mental health. I note that in his letter of 8 February 2021, Dr Matar stated that the Applicant suffers from “long-standing ADHD, severe major depression and generalised anxiety disorder”.

15. However, Dr Toohey’s report as a psychiatrist is inconclusive. He reported as follows:

    I tried several times to engage him in therapy but was unsuccessful. He would often respond "What do you want me to say?" He was reluctant to give any spontaneous history and the interview seemed to annoy him. He said he saw another psychiatrist in Deception Bay in 2016 who then refused to see him. "I might have been a bit aggro.” There is on-going family legal problems over his mother's Will. Bob gives a complicated traumatic history but he is the only informant. He was born in Sydney but went to Lebanon with his mother aged 7. He describes the trauma of the civil war. He says he was sexually abused at age 5 by a 35-y-o male family friend. ”1 grew up hating people." Bob has had many somatic symptoms over the years and attends the Pain Clinic at RPAH. I think the psychiatrist with the Pain Clinic will have a better chance of engaging with Bob taking the Bio-psychosocial model of care into account. He describes a road rage incident in 2000 when he followed another driver and punched him for allegedly exposing himself.[34]

    [34] T48/198.

16. Under Table 5, there is a severe functional impact on activities involving mental health function if:

    9The person has severe difficulties with most of the following:

    (a)self care and independent living;

    Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

    (b)social/recreational activities and travel;

    Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

    (c)interpersonal relationships;

    Example 1: The person has very limited social contacts and involvement unless these are organised for the person.

    Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

    (d)concentration and task completion;

    Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.

    Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

    (e)behaviour, planning and decision-making;

    Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

    (f)work/training capacity.

    Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

17. From the evidence provided by the Applicant, it would seem that some of the activities identified in Table 5 are seriously impaired, such as interpersonal relationships, and work/training capacity. But I am not satisfied that the Applicant has severe difficulties in most of these areas.

18. I am satisfied that the Applicant’s mental health condition is not fully diagnosed, treated and stabilised. Without a formal diagnosis from a suitably qualified health professional, the Tribunal is not permitted to assign an impairment rating.

19. Having reviewed the evidence as a whole, I am satisfied that although the Applicant suffers from poor mental health, possibly associated with the car accident, his cancer treatment in 2018, and possibly his early childhood experiences, he has not meaningfully engaged with health experts. This condition cannot be regarded as fully diagnosed, treated and stabilised and therefore it is not possible to assign any impairment points under Table 5 – Mental Health Function.

    Condition 4 – Upper Limb conditions affecting hands and shoulders (Table 2)

20. There is some medical evidence pertaining to flexor tenosynovitis and ganglions on both thumbs.[35] On 22 January 2019 he received a cortisone injection into his left thumb at Campsie Medical Centre.[36] On 24 January 2019, a similar injection was given to his right thumb.[37]

    [35] T33/173.

    [36] T35/175.

    [37] T36/177.

21. This condition was not assessed by AAT1.

22. The evidence before the Tribunal does not support a finding that this condition is fully diagnosed, treated and stabilised, and therefore impairment points cannot be assigned. However, for the sake of completeness I note that there is a severe functional impact (20 points) on activities using hands or arms if most of the following apply to the person:

    (g)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    (h)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    (i)the person has difficulty using a computer keyboard despite appropriate adaptations;

    (j)the person has severe difficulty using a pen or pencil;

    (k)the person has severe difficulty turning the pages of a book without assistance.

23. During his oral evidence to the Tribunal, the Applicant noted pain in his hands. He also stated he was able to a range of activities, including filling a kettle full of water and boiling it, and carrying a cup of tea or coffee from his kitchen. There is no medical evidence before the Tribunal that would suggest the Applicant has a severe impairment affecting his upper limbs.

24. On the evidence before the Tribunal, I am satisfied that the Applicant does not suffer from a severe impairment under Table 2.

    Condition 5 – Other Conditions (has tinnitus, secondary to the motor vehicle accident in 1996; irritable bowel syndrome; and osteoarthritis in the knees).

25. I note that in Dr Matar’s report dated 8 February 2021, there is a reference to tinnitus secondary to the motor vehicle accident in 1996; irritable bowel syndrome; and osteoarthritis in the knees.

26. On the evidence before the Tribunal, I am satisfied that none of these conditions is fully treated and stabilised. 

27. With regard to irritable bowel syndrome and osteoarthritis, although there is some evidence that he suffered symptoms associated with each of these conditions the Applicant said that they required further investigation.[38] It appears that the first manifestation of IBS occurred in December 2020 (well outside the qualification period) and he had an endoscopy at Prince Alfred hospital.

    [38] Transcript, 16 July 2021, 47.

28. With regard to tinnitus he said that it was driving him crazy. He had seen someone about it but it was not taken into account by Centrelink. He said that he was diagnosed by an ear specialist in Leichardt in 1996 or 1997 and he also went to a specialist in Penrith.[39] There is however no medical report before the Tribunal. I am satisfied that this condition is not fully treated and stabilised, and as such the Tribunal is unable to assign an impairment rating. Moreover, I am satisfied that his hearing impairment is not such as to qualify for an extreme impairment rating under the relevant Table.

    [39] Transcript, 16 July 2021, 43.

29. He also referred to his eyesight which is currently under investigation.

30. I am satisfied in light of the evidence before the Tribunal, including the Applicant’s evidence, no impairment points should be awarded for tinnitus, irritable bowel syndrome; or osteoarthritis.

    CONCLUSION

31. The Tribunal finds that the Applicant has not actively participated in a Program of Support in the relevant period, and does not have a severe impairment under a single Impairment Table.

32. The decision under review, being the decision of the AAT1 dated 25 September 2020, is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Emeritus Professor P A Fairall, Senior Member

.........................[sgd]...............................................

Associate

Dated: 23 September 2021

Date(s) of hearing:	16 July 2021
Date final submissions received:	22 July 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Ms L Boyd, Hunt & Hunt Lawyers