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

Bariesheff and Secretary, Department of Social Services (Social services second review) [2019] AATA 549 (26 March 2019)
Division:GENERAL DIVISION
File Numbers: 2017/5031
Re:Michelle Bariesheff
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member PJ Clauson
Date:26 March 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[SGD]..................................
Senior Member PJ Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Refusal – Spine Condition – Mental Health Condition – Fibromyalgia Condition – Asthma Condition – Epilepsy Condition – whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member PJ Clauson
26 March 2019
INTRODUCTION

On 20 May 2016, Miss Michelle Bariesheff (“Applicant”), applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T22, pages 114-144, Claim for DSP, dated 20 May 2016.
On 23 November 2016, the Department of Human Services (“Centrelink”) advised the Applicant that her application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T25, pages 152-153, Rejection of DSP, dated 23 November 2016.
[3] Exhibit 1, T Documents, T28, pages 156-162, ARO Decision, dated 17 March 2017.
On 13 July 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, pages 6-11, Decision of the SSCSD, dated 13 July 2017.
Following this, the Applicant sought a second tier review of his matter by the

General and Other Divisions of this Tribunal, by way of an Application dated

17 August 2017.[5]
[5] Exhibit 1, T Documents, T1, pages 1-5, Application for Review, dated 17 August 2017.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 7 June 2018, a hearing was held for this application. The Applicant attended the hearing in person.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 20 May 2016, or within 13 weeks thereafter, being up until

19 August 2016 (“Relevant Period”).
BACKGROUND
The following documents were enclosed with the Applicant’s DSP Claim Form[6]:
·Medical verification form dated 16 April 2016, completed by Dr Mark Tadros;
·Letter dated 15 April 2016, from Dr Tadros; and
·Letter dated 5 May 2016, from John Bishop (Disability Employment Consultant from Help Enterprises).
[6] Exhibit 1, T Documents, T22, pages 114-144, DSP Claim Form, dated 20 May 2016.
The Medical verification form that Dr Tadros completed listed the Applicant’s condition as Lumbar Spondylosis.[7] The letter that Dr Tadros provided listed the Applicant’s condition as:
“….a management problem of bilateral mechanical lumbar sacral pain secondary to spondylitic change and facet arthropathy”.[8]
[7] Exhibit 1, T Documents, T22, page 141, Extract of Verification of Medical Condition Form completed
by Dr Tadros, dated 16 April 2016.
[8] Exhibit 1, T Documents, T22, page 143, Letter from Dr Tadros, dated 15 April 2016.
The portion of the Applicant’s DSP Claim Form, where she was to list her disabilities, illnesses or injuries, is not in front of the Tribunal.
On 20 September 2016, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (herein referred to as “JCA”) who subsequently produced a report dated 10 November 2016.[9] The JCA assessed the Applicant’s spine condition and recommended that an Impairment Rating of 0 points be assigned for the condition.[10]
[9] Exhibit 1, T Documents, T24, pages 147-151, JCA Report, dated 10 November 2016.
[10] Exhibit 1, T Documents, T24, pages 147-151, JCA Report, dated 10 November 2016.
Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as being 8-14 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention.[11]
[11] Exhibit 1, T Documents, T24, pages 147-151, JCA Report, dated 10 November 2016.
On 13 July 2017, at first review, the SSCSD affirmed the decision under review but did not agree with the JCA and ARO as to the Impairment Rating assessment. Instead, the review of the SSCSD assessed the Applicant as having a total Impairment Rating of 15 points in relation to her spine condition, assigning 10 points in relation to spinal function under Table 4 of the Impairment Tables and five points in relation to lower limb function Table 3 of the Impairment Tables.[12]
[12] Exhibit 1, T Documents, T2, pages 6-11, Decision of the SSCSD, dated 13 July 2017.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 of the Act, must be met:
(e)the person has a physical, intellectual or psychiatric impairment; and
(f)the person’s impairment is of 20 points or more under the Impairment Tables; and
(g)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[13] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referrable to the period.[14]
[13] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[14] Bobera and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[15] Essentially, the Impairment Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[16] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[17]
[15]          Impairment Determination, s 5(1) and s 5(2).
[16]          Impairment Determination, s 5(2).
[17]          Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[18]
[18] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[19]
[19] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[20]
[20] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[21]
[21] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Impairment Table. If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[22]
[22] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[23]
[23] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Spine, Depression, Fibromyalgia, Asthma and Epilepsy conditions and it is not in dispute that she has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[24] The questions to be determined by this Tribunal are, however, whether or not during the Relevant Period those impairments attracted an Impairment Rating of 20 points or more under the Impairment Tables,[25] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[24] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 10 May 2018, para 5.1.
[25] The Act, s 94(1)(b).
I will now consider whether the Applicant’s impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Spine condition
The Respondent accepted that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised.[26] The Tribunal has had regard to the medical evidence before it, and is of the opinion that this concession is appropriate and finds that the Applicant’s condition was fully diagnosed, fully treated and fully stabilised in the Relevant Period.
[26] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 10 May 2018, para 6.1-6.3.
The Tribunal acknowledges that the Applicant suffers from a long standing spine condition. At the hearing, the Applicant reported that she first began experiencing severe and persistent back pain in 2012. The Applicant further stated that around this time, she had attempted to rise from a sitting position and found herself unable to walk. The Applicant told the Tribunal that as a result of this she had to cease working as a plasterer.
On 15 April 2016, the Applicant was referred to Dr Tadros, a consultant in rehabilitation and pain medicine, who produced a medical report and diagnosed the Applicant with: “bilateral mechanical lumbar sacral pain secondary to spondylitic change and facet arthropathy”.[27]
[27] Exhibit 1, T Documents, T22, Medical Report of Dr Tadros, dated 5 April 2016, page 143.
On 16 April 2016, Dr Tadros saw the Applicant and completed a verification of medical conditions form.[28] Dr Tadros listed on the form that the onset date of the Applicant’s Lumbar Spondylosis was 2012, and that she had “extensive” past treatment for the condition.[29] In Dr Tadros’ medical report dated 5 April 2016, he emphasised that:
“She has exhausted all neurosurgical, rehabilitative, pharmacological and interventional treatment. More recently she has undergone a trial of a spinal cord stimulator with no relief… I anticipate that this will be a permanent state of affairs. There is no definitive surgical or medical treatment for her condition.”[30]
[28]          Exhibit 1, T Documents, T22, Extract of Verification of Medical Condition Form from Dr Tadros, dated
16 April 2016, page 141.
[29]          Exhibit 1, T Documents, T22, Extract of Verification of Medical Condition Form from Dr Tadros, dated
16 April 2016, page 141.
[30]          Exhibit 1, T Documents, T22, Medical Report of Dr Tadros, dated 5 April 2016, page 143.
The Tribunal acknowledges that the Applicant has embarked upon a lengthy journey of medical treatments and interventions in the hope of resolving the issues associated with her spine condition.
The Applicant provided in support of her application for DSP, Basic Rights Queensland questionnaires that were completed by Dr Naomi Liebenberg on 13 June 2017 and

Dr Tadros completed on 3 July 2017.[31] In the questionnaire Dr Liebenberg noted, that the Applicant had undertaken the following treatment for her lumbosacral back pain: “Physiotherapy, Pain management: Fact joint Block, Radiofrequency neurology, epidural steroid injection, Ketamine injection, Oral pain management and patches [and] spinal cord stimulator”.[32] Dr Liebenberg also made reference to the Applicant’s past treatment of a micro discectomy and decompression of the S1, following a L5/S1 prolapse.[33]
[31]          Exhibit 1, T Documents, T31, Basic Rights Questionnaire, dated 5 July 2017, pages 167-180.
[32]          Exhibit 1, T Documents, T31, Basic Rights Questionnaire, dated 5 July 2017, pages 170.
[33]          Exhibit 1, T Documents, T31, Basic Rights Questionnaire, dated 5 July 2017, pages 170.
In the questionnaire Dr Tadros stated that the Applicant had undertaken the following treatment for her “Lumbar spondylosis/neuropathic back pain”:
“Extensive rehabilitation, pharmacological & [sic] interventional treatment”.[34]
[34] Exhibit 1, T Documents, T31, Basic Rights Questionnaire, dated 5 July 2017, pages 167.
Further, Dr Tadros completed a medical report on 28 February 2017, as an update to the medical report dated 15 April 2016, and confirmed that the Applicant had a lumbar sacral fusion and subsequent imaging which indicated degenerative change.

Dr Tadros explained that the Applicant had undergone extensive treatment and her disc pain would be permanent.[35]
[35] Exhibit 1, T Documents, T27, Medical Report of Dr Tadros, dated 28 February 2017, page 155.
On 1 November 2017, Dr Liebenberg provided additional evidence in a telephone conversation with a Centrelink JCA. Dr Liebenberg is reported as confirming that she had received a report from Dr Bruce Hall, neurosurgeon, in August 2017, recommending that the Applicant have further surgery following results of a scan.[36] Following the Tribunal hearing, the Applicant submitted a letter from Dr Hall, dated 7 March 2018, that stated the following:
“Michelle proceeded to surgery at the Greenslopes Private Hospital on the

15^th of February 2018. She had an L5/S1 anterior lumbar discectomy and arthroplasty. Michelle’s surgery was technically very difficult to perform… The discectomy and arthroplasty proceeded without incident… I will review her again in six weeks’ time”.[37]
[36]Exhibit 2, Supplementary T Documents, S3, Additional Medical Evidence for DSP Record, dated 1 November 2017, pages 4-5.
[37] Letter from Dr Hall to Dr Liebenberg, dated 7 March 2018.
The Tribunal notes that the JCA had accepted that the Applicant’s spine condition was fully treated and fully stabilised, even though Dr Liebenberg had received a recommendation from Dr Hall for the Applicant to have further surgery. The JCA had made a finding that the proposed surgery was “beyond the scope of what would be classed as reasonable treatment”.[38]
[38] Exhibit 2, Supplementary T Documents, S5, JCA Report, dated 3 November 2017, pages 7-20.
Following the Hearing of this matter, the Applicant wrote to the Tribunal on 1 August 2018 and provided a letter from Dr Liebenberg dated 7 March 2018 and a letter from

Dr Angus Forbes dated 21 June 2018. Following this, the Respondent provided the Tribunal with a brief submission dated 10 August 2018, in reply to the material submitted by the Applicant and reiterated that the Respondent’s position regarding the Applicant’s spine condition remained unchanged. The Applicant then wrote a letter to the Tribunal on

13 August 2018, with a view to verifying information contained in the Respondent’s submission.
A Direction’s Hearing by telephone was held on 27 August 2018, during which the Respondent did not object to the Applicant’s post-hearing material being taken into consideration by the Tribunal. The Respondent further submitted any evidence of the referral to Dr Hall that could assist the Tribunal should be provided by the Applicant. The Tribunal decided that the Applicant’s material, submitted in August 2018 would be considered in this matter and made a Direction seeking the Applicant’s referral to see Dr Hall and also gave the Respondent an opportunity to respond to this information.
On 11 September 2018 the Applicant provided letters from Dr Hall dated 4 August 2017 and 14 August 2018. The Respondent provided a submission dated 14 September 2018 in response.
Following a close consideration of the evidence in this matter. the Tribunal’s view remains that at the Relevant Period the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised. Dr Hall’s letter of 4 August 2017 refers to the Applicant’s past treatments and states that he was:
“…quite happy to recommend that she has an anterior L5/S1 discectomy and arthroplasty”.[39]
[39] Medical Report from Dr Hall, dated 4 August 2017.

The Tribunal is cognisant of Deputy President Bean’s decision in the matter of Secretary, Department of Social Services and Seyfang [2016] AATA 243, where the Deputy President notes that:
“I am required to have regard to the state of affairs during the assessment period, and without regard to later developments. Whilst I may have regard to evidence which came into existence after the assessment period, this is relevant only in so far as it assists in establishing the true state of affairs during the assessment period”.[40]
[40] Secretary, Department of Social Services and Seyfang [2016] AATA 243, para 23.
The Tribunal notes that Dr Tadros stated in his report of 15 April 2016 that:
“She has exhausted all neurosurgical, rehabilitative, pharmacological and interventional treatment. More recently she has undergone a trial of a spinal cord stimulator with no relief…I Anticipate [sic] that this will be a permanent state of affairs. There is no definitive surgical or medical treatment for her condition.” [41]
[41]Exhibit 1, T Documents, T22, Medical Report completed by Dr Tadros, dated 15 April 2016, p. 143.
Further, Dr Liebenberg in her responses to the Basic Rights Queensland questionnaire of 13 June 2017 confirmed the treatments the Applicant had undertaken for her Lumbar Spine condition but did not refer to any possible future spinal surgery with Dr Hall.[42]
[42]Exhibit 1, T Documents, T 31, Basic Rights Questionnaire completed by Dr Liebenberg, dated 13 June 2017, p. 170-172.
Given that the date of the letter from Dr Hall[43] is almost twelve months outside the Relevant Period, the Tribunal considers that it is unlikely that the referral giving rise to the surgery would have been made within the Relevant Period.
[43] Medical Report from Dr Hall, dated 4 August 2017.
The Respondent in this matter has conceded that the Applicant’s Lumbar Spine condition not only affects the Applicant’s spinal function but also the Applicant’s lower limb function.[44] Based on the corroborating medical evidence before me, I find that this is an appropriate concession.
[44] Exhibit 3, Respondent’s Statement of Issues, Facts and Contentions dated 10 May 2018, para 6.5.
I will now consider the functional impact of the Applicant’s Lumbar Spine condition with reference to Table 3 and Table 4 of the Impairment Determination.
Functional Impact – Spinal Function – Impairment Table 4
The Impairment Table that relates to the Applicant’s spine condition is Impairment Table 4 (“Table 4”). The Introduction to Table 4 states the following:
“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.”[45]
[45] Impairment Determination, Introduction to Table 4.
The Respondent contends, consistent with the review of the SSCSD and JCA, that the appropriate rating for the Applicant’s spine condition is 10 points under Table 4 of the Impairment Determination.[46] Dr Liebenberg and Dr Tadros each made recommendations of what they would consider to be appropriate ratings for the Applicant’s spine condition when completing the Applicant’s Basic Rights questionnaire. Dr Liebenberg recommended that the appropriate rating for the Applicant’s spine condition was 5 points under Table 4, and Dr Tadros recommended 10 points under Table 4.[47]
[46]Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 10 May 2018, para 6.4 and 6.8.
[47] Exhibit 1, T Documents, T31, Basic Rights Questionnaire, dated 5 July 2017, pages 167-180.
Table 4 of the Impairment Determination provides the following descriptors for 10 points to be considered appropriate:[48]
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
[48] Impairment Determination, Table 4.
Table 4 of the Impairment Determination provides the following descriptors for 20 points to be considered appropriate:[49]
(1)        The person is unable to:
(a)        perform any overhead activities; or
(b)        turn their head, or bend their neck, without moving their trunk; or
(c)        bend forward to pick up a light object from a desk or table; or
(d)        remain seated for at least 10 minutes.
[49]          Impairment Determination, Table 4.
On 26 May 2014, Dr Sarah Van Staden indicated in a DSP medical report that the Applicant’s chronic lower back pain caused the Applicant “Pain when sitting, standing and walking”.[50] Further, Dr Van Staden stated that the Applicant’s condition was impacting on the Applicant’s ability to function in the following ways: “Limited endurance to walking, bending, sitting, lifting, carrying. Unable to do physical duties as before injury”.[51]
[50]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 60.
[51]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 61.
Dr Van Staden noted that the impact of the condition on the Applicant’s ability to function would persist for 13-24 months and the effect of the condition on the patient’s ability to function was uncertain.[52] Dr Van Staden was of the view that the Applicant’s back would either stabilise in 12-18 months after surgery or that the Applicant would experience chronic back pain indefinitely. [53]
[52]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 61.
[53]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 61.
On 15 April 2016, Dr Tadros outlined the Applicant’s major limitations in relation to her ability to be employed: “…The pain limits her standing, walking, and sitting tolerances. In addition, the pain interferes with her concentration and attention.”[54]
[54] Exhibit 1, T Documents, T22, Medical Report of Dr Tadros, dated 5 April 2016, page 143.
On 5 September 2017, Dr Tadros reported that the Applicant was experiencing the following major limitations in relation to her Spinal condition:
“…standing, sitting, bending and lifting. Your limitations are that you not able to lift anything greater than 5 [sic] kilos. You should have limited bending. You should also have an ability to change your posture… You are unable to perform any duties outside these parameters otherwise, you will increase your pain, decrease your physical and psychological function”.[55]
[55]Exhibit 2, Supplementary Documents, S1, Medical Report from Dr Tadros, dated 5 September 2017, p. 1.
Dr Tadros indicated in a questionnaire dated 31 January 2017, that his observations of the Applicant functional impairments outlined in his response were based on self-reported symptoms.[56]
[56]Exhibit 2, Supplementary Documents, S6, Questionnaire completed by Dr Tadros, dated 31 January 2017, pp. 23-25.
At the Hearing the Applicant reported the following:
·she has tried driving a few times but drives very little;
·she is restricted from turning her body physically around to look back;
·she travels to the shops (15 minute drive) and her GP’s (30 minute drive) as a passenger;
·she uses a claw stick to remove washing from washing machine, her mother assists her with all other washing duties;
·she can shower, wash, and brush her own hair; and
·she can navigate the bathroom herself as instalments have been added to her bathroom to assist her.
On 1 November 2017, Dr Liebenberg spoke to a Centrelink JCA by telephone about her medical report dated 13 June 2017.[57] The notes from this conversation stated that

Dr Liebenberg reported that the Applicant can:
“- sit longer than 10 minutes. ‘She sits longer than 10 minutes in my office.’
- lift light objects from knee level. ‘As long as it’s light, I think she should be able to do that.’”[58]
[57]Exhibit 1, T Documents, T 31, Basic Rights Questionnaire completed by Dr Liebenberg, dated 13 June 2017, p. 170-180
[58]Exhibit 2, Supplementary T Documents, S3, Additional Medical Evidence from Dr Liebenberg completed by JCA, dated 1 November 2017, p. 5.
This appears to be in conflict with the letter from Dr Tadros to Centrelink of

2 November 2017, where he stated that:
“With regards to your questions, she is unable to perform any overhead activities, bend forward to pick up light objects. She can remain seated for ten [sic] minutes but would have to change her posture after 15-20 minutes.”[59]
[59]Exhibit 2, Supplementary T Documents, S4, letter from Dr Tadros to Centrelink, dated 2 November 2017, p. 6.
The Tribunal accepts that the Applicant’s spine condition caused functional impairments that impacted upon her spinal function. Based on the medical evidence before the Tribunal, and the evidence provided by the Applicant at Hearing, the Tribunal finds that the Applicant’s spine condition has caused a moderate functional impact attracting 10 points under Impairment Table 4.
Functional Impact – Lower Limb Function – Impairment Table 3
The Impairment Table that relates to the effects of the Applicant’s spine condition on the function of her lower limbs is Impairment Table 3 (“Table 3”). The Introduction to Table 3 states the following:
“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.”[60]
[60] Impairment Determination, Introduction to Table 3.
The Respondent contends that the Applicant’s spine condition caused a mild functional impact to the Applicant’s lower limbs and that a rating of five points be assigned under Table 3.[61]
[61] Exhibit 3, Secretary’s Statement of Issues, Facts and Contentions, dated 10 May 2018, para 6.11.
The Tribunal accepts that the Applicant’s spine condition also causes her to suffer from lower limb functional impairment.
The Descriptors for 5 points under Table 3 are as follows:[62]
[62]          Impairment Determination, Table 3.
1   At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
2At least one of the following applies:
(a) the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
The Descriptors for 10 points under Table 3 are as follows:
1At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities;
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than 5 minutes; and
2The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
3This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).
On 3 July 2017, Dr Tadros in completing a Basic Rights Queensland questionnaire recommended that the Applicant’s impairment should be rated

10 points under Table 3.[63]
[63]Exhibit 1, T Documents, T 31, Basic Rights Queensland Questionnaire completed by Dr Tadros, dated 5 July 2017, p. 168
At Hearing, the Applicant told the Tribunal that she lives on an acreage property with her parents who relocated to Queensland from Tasmania to live with her and provide support to her. Although the Applicant’s fiancé does not live with her, he often assists the Applicant’s father with the upkeep and maintenance of the property.
The Applicant reported to the Tribunal that she started experiencing problems with walking in 2016 and said she was probably able to walk about 100 metres or so before she began to have difficulty. The Applicant noted that she was not using a walking aid during the Relevant Period and has not adopted the use of one due to a recommendation from her physiotherapist.
The Applicant noted that in 2016 she could manage to walk up two or three stairs at a time but struggled with any more than that. She said she needed assistance from another person if she attempts to go up more than three stairs. The Applicant described her home stairs and explained that they are equipped with a rail and a ramp. The Applicant also stated that the property where she resides has a long driveway, some 400 metres in length, and that she is unable to negotiate the entire length of it. The Applicant explained at the Hearing that if she does manage to make it down the driveway she has to wait for someone to come and get her and bring her back.
At the Hearing the Applicant also relevantly reported the following:
·she has difficulty using public transport;
·she uses a pram or trolley to lean on when walking around the shops, until it becomes too full then seeks assistance;
·if she needs to get down onto the floor she needs her hands to help push herself back up;
·she is unable to physically bend down and get back up; and
·her mother usually did the dishes for her as she is unable to bend to load and unload the dishwasher.
On 26 May 2014, Dr Van Staden indicated in a DSP medical report that the Applicant’s chronic lower back pain caused the Applicant “Pain when…standing and walking”.[64] Further, Dr Van Staden stated that the Applicant was experiencing “limited endurance” when walking and bending.[65]
[64]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 60.
[65]Exhibit 1, T Documents, T9, DSP Medical Report completed by Dr Van Staden, dated 5 September 2017, page 61.
On 15 April 2016, Dr Tadros noted that: “The pain limits her standing… [and] walking… tolerances”.[66] The Applicant also reported to Dr Tadros that she could stand for between 5 – 10 minutes before she was required to change her posture.[67]
[66] Exhibit 1, T Documents, T 22, Medical Report of Dr Tadros, dated 15 April 2016, p. 143.
[67]Exhibit 2, Supplementary Documents, S6, Questionnaire completed by Dr Tadros, dated 31 January 2017, p. 24.
On 5 September 2017, Dr Tadros noted the Applicant’s difficulties with standing and bending, and assessed the Applicant’s walking capability noting the following:
“With regards to your walking, I note that you can only walk short distances, approximately less than 200 metres before having to stop. You also have difficulties negotiating stairs or steps”.[68]
[68]Exhibit 2, Supplementary Documents, S1, Medical Report from Dr Tadros, dated 5 September 2017, p. 1.
The Tribunal accepts that the Applicant’s spine condition caused functional impairments that impacted upon her lower limb function. Based on the medical evidence before the Tribunal and the evidence provided by the Applicant at Hearing the Tribunal finds that the Applicant’s spine condition has caused a mild functional impact attracting 5 points under Table 3.
Other Conditions
The Applicant has stated that she also suffers from Depression, Fibromyalgia, Epilepsy and Asthma conditions.
Depression condition
A medical certificate completed by Dr Van Staden on 26 May 2014 notes that the Applicant suffered from “Depression secondary to chronic pain”.[69] The Applicant told the Tribunal under cross-examination from the Respondent that she had seen a psychiatrist in 2017 regarding her depression on about two or three occasions but had “a lot of stuff going on at home and couldn’t get anybody to get me out there to the appointments” and had not been for another appointment since then. In her response to the Basic Rights Questionnaire dated 13 June 2017, Dr Liebenberg refers to the Applicant’s Depression condition, but notes that the condition is not fully diagnosed and not fully treated and provided:
“Patient has been referred for psychologist counselling. Did not want to take antidepressants as she felt it made her more withdrawn. No report yet from psychologist”.[70]
[69]Exhibit 1, T Documents, T9, Medical Certificate completed by Dr Van Staden, dated 26 May 2014, p. 65.
[70]Exhibit 1, T Documents, T 31, Basic Rights Questionnaire completed by Dr Liebenberg, dated 13 June 2017, p. 173.
There is no evidence before the Tribunal to indicate that an appropriately qualified medical practitioner, namely a clinical psychiatrist or psychologist, has diagnosed the Applicant’s depression condition. I find that the Applicant’s Depression condition was not fully diagnosed, fully treated or fully stabilised. Therefore, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Fibromyalgia condition
The Respondent contends, following post-hearing submissions, that the Applicant’s Fibromyalgia condition was not fully treated and fully stabilised in the Relevant Period.[71] The Respondent primarily relies on the report from Dr Forbes.[72]
[71] Submissions from the Respondent, dated 10 August 2018 and 14 September 2018.
[72] Submissions from the Respondent, dated 14 September 2018.
The Applicant contends that her Fibromyalgia condition was fully treated and fully stabilised. In a letter dated 13 August 2018, the Applicant stated that:
“And as for the reference to the fibromyalgia this information was taken incorrectly I am not just now being treated with medication for it…there are new medications on the market at the moment so he decided to trial them on me to at least help manage the fibromyalgia pain… I had an appointment with him last week and he has taken off those meds and trying one last one he can think of as those did not help the pain…[I] return to see him in October.”[73]
[73] Submissions from the Applicant, undated, submitted to the Tribunal 13 August 2018.
On 13 June 2017, in response to the Basic Rights questionnaire, Dr Liebenberg reported that the Applicant’s fibromyalgia condition was diagnosed in December 2014 by

Dr Gilian Nalder, a rehabilitation physician, and that the condition could have been considered to have been treated with all reasonable treatments which were likely to result in significant functional improvement within two years as of May 2017.[74]
[74]Exhibit 1, T Documents, T 31, Basic Rights Questionnaire completed by Dr Liebenberg, dated 13 June 2017, p. 175.
On 21 June 2018, Dr Forbes noted that the Applicant had been diagnosed with Fibromyalgia by a rheumatologist, Dr Martin Devereux.[75] Dr Forbes also discussed the treatment that the Applicant had undertaken for the condition:
“He has started her on an SNRI medication. She has not had any significant improvement at this time, but reports she is still titrating the dose”.[76]
[75] Medical Report completed by Dr Forbes, dated 21 June 2018.
[76] Medical Report completed by Dr Forbes, dated 21 June 2018.
There is no information before the Tribunal in relation to the Applicant’s engagement with Dr Nalder or Dr Devereux, or of any treatment undertaken for her Fibromyalgia condition during the Relevant Period.

The Applicant confirmed that she had not received any treatment for that condition from Dr Tadros. There is no medical evidence before the Tribunal that suggests the Applicant’s Fibromyalgia condition was fully diagnosed, fully treated or fully stabilised. Therefore, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Epilepsy and Asthma conditions
The Applicant suffers from epilepsy and asthma however, she told the Tribunal that these conditions are well controlled with medication and that she is not relying on these conditions in this claim for DSP.
As there is limited medical evidence before the Tribunal, and based on the Applicant’s concessions, I find that the Applicant’s Epilepsy and Asthma conditions were not fully diagnosed, fully treated or fully stabilised. Therefore, I am unable to assign the conditions an Impairment Rating under the Impairment Determination.
CONCLUSION
As the Applicant, does not have a total of 20 or more impairment points under the Impairment Tables, and as a consequence, the Applicant does not satisfy the requirement under section 94(1)(b) of the Act. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work. .
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 89 (eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member PJ Clauson

...............................[SGD]....................................
Dated: 26 March 2019

Date of hearing: 7 June 2018

Date final submissions received: 14 September 2018

Applicant: In person

Advocate for the Respondent: Ms Michelle Brazier

Solicitors for the Respondent: Department of Human Services

[2019] AATA 549

26 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	7 June 2018
Date final submissions received:	14 September 2018
Applicant:	In person
Advocate for the Respondent:	Ms Michelle Brazier
Solicitors for the Respondent:	Department of Human Services