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

Bartel and Secretary, Department of Social Services (Social services second review) [2017] AATA 1356 (28 August 2017)
Division:GENERAL DIVISION
File Number: 2016/6626
Re:Paul Bartel
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:28 August 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
28 August 2017
INTRODUCTION

On 14 April 2016 Mr Bartel lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as:[1]
·Lumbar discectomy;
·left foot drop;
·L4/L5 ALIF;
·L5/S1 arthroplasty;
·Chronic Joint Pain
·left foot and ankle pain; and
·knee pain.
[1] Exhibit 1, T Documents, T 29, pages 162 – 191, at 187, Mr Bartel’s Claim for DSP dated 5 April 2016; T 39, page
228, Centrelink records.
On 9 May 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Bartel by a Registered Psychologist, Registered Nurse and Rehabilitation Counsellor. The JCA concluded that not all of Mr Bartel’s medical conditions were fully diagnosed, treated and stabilised.[2]
[2] Exhibit 1, T Documents, T 34, pages 207 – 213, JCA Report dated 9 May 2016.
As a result of the JCA report Centrelink rejected Mr Bartel’s claim for DSP on 8 June 2016.[3]
[3] Exhibit 1, T Documents, T 36, pages 216 – 217, Letter from Centrelink dated 8 June 2016.
Claim History
Mr Bartel sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Bartel’s medical conditions were not fully diagnosed, treated and stabilised and did not have a total impairment rating of at least 20 points.[4]
[4] Exhibit 1, T Documents, T 37, pages 218 – 221, Decision of ARO dated 28 July 2016.
On 5 August 2016 Mr Bartel sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[5] The SSCSD rejected Mr Bartel’s claim and affirmed the ARO’s decision on 26 October 2016.[6]
[5] Exhibit 1, T Documents, T 38, pages 225 – 226, Letter from Centrelink to ARO coordinator dated 5 August 2016.
[6] Exhibit 1, T Documents, T2, pages 3- 9, SSCSD’s Decision and Reasons for Decision dated 26 October 2016.
Mr Bartel has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1-2, Mr Bartel’s Application for Review dated 1 December 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Bartel must have a physical, intellectual or psychiatric impairment;
(b)Mr Bartel’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Bartel must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Bartel meets the Section 94 Requirements is the date the claim is lodged (in this instance as at 14 April 2016), unless Mr Bartel becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP Mr Bartel must have met the Section 94 Requirements between 14 April 2016 and 14 July 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Bartel’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[10]
DID MR BARTEL HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Mr Bartel’s medical conditions
[11] Determination, s 3.
Left side foot drop
In 2012 Mr Bartel had an L4/5 discectomy for a prolapsed disc which resulted in compression of the L4/5 nerve roots and clinically caused left-sided foot drop. The prolapsed disc resulted from an injury incurred by Mr Bartel whilst installing machinery at work in April 2012 (“2012 Work Injury”).[12]
[12] Exhibit 1, T Documents, T5, page 72, Medical Report of Dr Sharwood dated 19 July 2013.
In 2012 Dr Robert Newberry, Orthopaedic Resident, and Dr Simon Gatehouse, Orthopaedic Surgeon, from the Orthopaedic Unit at Princess Alexandra Hospital determined that:[13]
(a)despite Mr Bartel working consistently with his physiotherapist, he had not regained any dorsal flexion of the left foot;
(b)some slight improvement may occur in the recovery of the nerve in a period of one to 2 years; and
(c)no further operative management from a spinal point of view was required.
[13] Exhibit 1, T Documents, T4, page 70, Medical Report of Dr Newberry and Dr Gatehouse dated 27 November
2012.
Dr Newberry and Dr Gatehouse recommended that Mr Bartel continue his physiotherapy treatment, and using his ankle-foot orthosis and referred him to Dr Lutz, a private lower limb surgeon, with a view to considering any further operative management which may be possible.
Mr Bartel was independently examined by Dr Peter Sharwood, Orthopaedic Surgeon, in July 2013, Dr John Pentis, Orthopaedic Surgeon, in September 2013, and Dr Don Todman, Neurologist, in November 2013, as part of his Workcover claim in relation to the 2012 Work Injury.
Dr Sharwood concluded that Mr Bartel had ongoing symptoms and neurological deficit as a result of the left foot drop and noted that Mr Bartel:[14]
(a)is significantly disabled in his walking and has a severely affected gait;
(b)has significant muscle weakness affecting the quadriceps muscle;
(c)has weak hamstrings;
(d)has no power of dorsiflexion of the left foot and cannot extend the great toe;
(e)as planter flexion power in the left ankle at Grade IV;
(f)has no inversion or eversion power; and
(g)the left knee jerk is absent as is the left ankle jerk.
[14] Exhibit 1, T Documents, T5, pages 71-78, Medical Report of Dr Sharwood dated 19 July 2013.
Dr Pentis reported that:[15]
(a)Mr Bartel had pre-existing degenerative joint disease in the lumbar spine and has aggravated that causing a disc protrusion at L4/5;
(b)Mr Bartel still has a foot drop and weakness in the back and has developed some problems with his left knee;
(c)an MRI of his lower spine should be undertaken to see what the quality of the current discs are and whether there is any scarring in relation to the L4/L5 disc as he may then be a candidate for operative intervention;
(d)in the event that there is no scarring it would appear that he has damaged the nerve and has a disc problem not only in L4/L5 but L5/S1 and that more likely than not he would be left with a permanent impairment.
[15] Exhibit 1, T Documents, T6, pages 79-84, Medical Report of Dr Pentis dated 15 September 2013.
After the MRI had been performed in January 2014 Dr Pentis reported that there were no significant neural compression legions but multilevel disc and facet degeneration. Dr Pentis says there appears to be scarring around the S1 nerve root and asked for the MRI to be reviewed.[16] Dr Pentis later reported that Mr Bartel had a 25% whole person impairment due to the effects of the accident and the operative consequences.[17]
[16] Exhibit 1, T Documents, T9, pages 98 – 99, Report of Dr Pentis dated 4 February 2014.
[17] Exhibit 1, T Documents, T 10, pages 100 – 102, Report of Dr Pentis dated 11 February 2014.
Dr Todman reported that:[18]
(a)Mr Bartel has persistent left foot drop with a gait disorder;
(b)weakness of left tibialis interior and Peroneii;
(c)wasting of the left calf;
(d)absent left knee and ankle reflex; and
(e)Mr Bartel has a 34% whole person impairment from the combined values chart.
[18] Exhibit 1, T Documents, T8, pages 93-97, Report of Dr Todman dated 13 November 2013.
In March 2014 Ms Rebecca Hague, Occupational Therapist, concluded that Mr Bartel was precluded from his pre-injury employment and that his residual employability looked bleak as he was now physically limited to sedentary employment.[19]
[19] Exhibit 1, T Documents, T 11, pages 103 – 116, Report of Ms Hague dated 13 March 2014.
In August 2014 Dr Steven Smith, Mr Bartel’s General Practitioner, reported that:[20]
(a)Mr Bartel was currently having ongoing neurosurgical and orthopaedic review, hydrotherapy, physiotherapy and massage therapy for his left foot drop;
(b)as a result of Mr Bartel’s left foot drop Mr Bartel was experiencing lower back pain, left leg pain and paraesthesia in the left toe;
(c)Mr Bartel was unable to dorsi-flex his left foot, had poor balance, an abnormal gait, and was unable to lift/carry/squat;
(d)the impact of Mr Bartel’s left foot drop was expected to persist for more than 24 months and that the impact of this condition on Mr Bartel’s ability to function was expected to remain unchanged;
(e)there had been no improvement in Mr Bartel’s foot drop over the last 2 years and that was unlikely to ever regain movement or function and will be a permanent disability.
[20] Exhibit 1, T Documents, T 13, pages 122 – 124, Medical Report of Dr Smith dated 22 August 2014.
Mr Bartel was reviewed by Dr Peter Lucas, Neurosurgeon, in September 2014. In Dr Lucas’s opinion:[21]
(a)there was some value in decompressing the L4 nerve root although it would not change his foot drop;
(b)whilst there was a possibility that the foot drop could improve, at that stage it was beginning to become a rare option.
[21] Exhibit 1, T Documents, T 14, pages 130 – 131, Report of Dr Lucas dated 3 September 2014.
In October 2014 Dr Lucas reiterated that in his opinion Mr Bartel will not have resolution of his foot drop, may not have resolution of his radicular symptoms and is unlikely to have complete resolution of his back pain. Dr Lucas recommended surgical reconstruction of L4/5 and L5/S1 from an anterior approach.[22]
[22] Exhibit 1, T Documents, T 16, pages 137 – 138, report of Dr Lucas dated 2 October 2014.
Mr Bartel elected to proceed with Dr Lucas’s recommendation.
Mr Bartel’s General Practitioner reported between February 2015 and January 2016 that Mr Bartel was still suffering from ongoing back pain and foot drop.[23]
[23] Exhibit 1, T Documents, T 19, pages 142 – 144, Medical Certificates of Dr Stella Panagiotou dated 24 February
2015; T 20, page 145, Medical Certificate of Dr Stella Panagiotou dated 14 May 2015; T 22, page 147, Medical
Certificate of Dr Stella Panagiotou dated 3 November 2015; T 27, page 160, Medical Certificate of Dr Stella Panagiotou dated 15 January 2016.
In the Medical Report prepared for Centrelink in April 2016 Dr Lucas reported that Mr Bartel’s left foot drop condition was permanent and not expected to change within the next two years. Dr Lucas says this condition reduces Mr Bartel’s endurance and mobility and he has decreased sensation in his left leg.[24]
[24] Exhibit 1, T Documents, T33, pages 199-201, Medical Report of Dr Lucas dated 2 May 2016.
In May 2016 Dr Lucas reported to Centrelink that, in his opinion, Mr Bartle was suitable for a sedentary type occupation.[25]
[25] Exhibit 1, T Documents, T35, pages 214-215, Medical Report of Dr Lucas dated 19 May 2016
Lumbar Spine
Following continued low back pain, Mr Bartel had an MRI of his lumbar spine in August 2014 which showed that, relevantly, there was prominent disc height reduction at L5 – S1 with a shallow central disc protrusion abutting the left S1 nerve but not causing nerve compression, a tiny focal disc protrusion in the right lateral recess at L3 – 4 which mildly displaces the right L4 nerve posteriorly, and a focal disc protrusion into the left L4 – 5 exiting foramen which crowds and may compress the proximal aspect of the exiting L4 nerve.[26]
[26] Exhibit 1, T Documents, T 12, pages 117 – 118, X-Ray Report dated 18 August 2014.
In August 2014 Dr Stephen Smith, Mr Bartel’s General Practitioner, reported that:[27]
(a)Mr Bartel had a L5/S1 disc prolapse and had been referred to a specialist for consideration of discectomy/fusion;
(b)as a result of Mr Bartel’s lumbar spine condition he was experiencing lower back pain and leg pain, left foot drop and left foot paraesthesia;
(c)the impact of Mr Bartel’s lumbar spine condition was expected to persist for more than 24 months and that the impact of this condition on Mr Bartel’s ability to function was uncertain.
[27] Exhibit 1, T Documents, T 13, pages 125 – 127, Medical Report of Dr Smith dated 22 August 2014.
Mr Bartel was reviewed by Dr Lucas in September 2014. In Dr Lucas’s opinion:[28]
(a)decompression of the nerve is not going to make the back pain any better or worse;
(b)arthroplasty or fusion is a possible consideration however it is contra-indicated at L5/S1 and arthroplasties do less well at that level comparative to other levels; and
(c)if Mr Bartel moved forward with arthroplasty there was a strong possibility that he would have facet mediated lower back pain.
[28] Exhibit 1, T Documents, T 14, pages 130 – 131, Report of Dr Lucas dated 3 September 2014.
In March 2016, a CT of Mr Bartel’s lumbar spine showed that the fusion of the L5/S1 appeared well consolidated.[29]
[29] Exhibit 1, T Documents, T 28, page 161, CT Report dated 29 March 2016.
In April 2016 Mr Matthew Craig Twinn, Physiotherapist, reported that Mr Bartel had been attending physiotherapy for his lumbar spine impairment since August 2012 and following the spinal fusion, and that he had encouraged Mr Bartel to continue with his self-managed exercise program and had not made any further appointments for further physiotherapy review.[30]
[30] Exhibit 1, T Documents, T 30, pages 192 – 193, Report of Mr Twinn dated 5 April 2016.
Dr Lucas reported in April 2016 that:[31]
(a)while Mr Bartel was demonstrably and undeniably better than he was pre-operation that he has a long-standing neural injury to left leg which requires an external splint;
(b)Mr Bartel has episodic lancinating pain into his left leg;
(c)Mr Bartel still has concerns in reference to his lumbar spine;
(d)Mr Bartel’s impairments were stable and stationary and are not going to demonstrably improve with further medical managements; and
(e)he supported Mr Bartel’s application for disability.
[31] Exhibit 1, T Documents, T 31, page 194, Report of Dr Lucas dated 6 April 2016.
In the Medical Report prepared for Centrelink in April 2016 Dr Lucas reported that:[32]
(a)the principle symptoms associated with Mr Bartel’s lumbar spine condition had been removed by surgery;
(b)Mr Bartel now only has minor low back pain;
(c)the condition only impacts Mr Bartel’s endurance and mobility concerns in a minor way;
(d)the impact of this condition was only expected to persist for 3-12 months and that the impact of the condition on his ability to function would significantly improve over the next 2 years.
[32] Exhibit 1, T Documents, T33, pages 202-204, Medical Report of Dr Lucas dated 2 May 2016.
In April 2016, Dr Panagiotou reported that:[33]
(a)Mr Bartel continued to experience nerve and lumbar back pain;
(b)his condition was stable and stationary; without any further improvement;
(c)Mr Bartel’s foot drop was permanent; and
(d)pain management was ongoing.
[33] Exhibit 1, T Documents, T 32, page 195, Report of Dr Stella Panagiotou dated 13 April 2016.
In April 2017, Dr Lucas clarified his April 2016 report and reported that while there may be slight improvement in relation to Mr Patel’s back pain, he did not expect his functional capacity to improve as a result of his fixed neurological deficit.[34]
[34] Exhibit 3, Report of Dr Lucas dated 19 April 2017.
Mental health
Dr Panagiotou, Mr Bartel’s General Practitioner, reported that Mr Bartel:[35]
(a)presented with symptoms of depression in around July 2015 and had been referred to Peter Perros, a Forensic Psychologist and Clinical Neuropsychologist, and then to Dr Ian Curtis, Psychiatrist;[36]
(b)was prescribed Endep in June 2015[37] for neuropathic pain, not as an antidepressant.
[35]         Exhibit 1, T Documents, T 25, pages 151 – 152, Additional Medical Evidence provided by Dr Panagiotou dated 9
December 2015.
[36]         Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, page
16, referral to Dr Curtis dated 11 August 2015.
[37]         Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, page
9, Endep prescription dated 11 June 2015.
Mr Perros reported in July 2015 that:[38]
(a)Mr Bartel has a mood disorder;
(b)it felt like he was talking to someone with Asperger’s syndrome;
(c)Mr Bartel was unwell psychologically;
(d)Mr Bartel requires clinical psychological therapy and support while reskilling to qualify for a white-collar professional job.
[38] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages
10 – 14, Report of Mr Perros dated 29 July 2015.
In August 2015 Dr F Ian Curtis, Psychiatrist, reported that he treated Mr Bartel for a major depressive disorder but that he had recovered, although he had residual suffering with depressive dysthymia (DSM 5 Reactive Depression) which is aggravated by his chronic crippling disability for which he was providing ongoing support of psychotherapy and psychoeducation. In Dr Curtis’s opinion Mr Bartel would be unemployable for more than 2 years whilst he came to terms with his chronic disabilities and adjusts more to Australian society.[39]
[39] Exhibit 1, T Documents, T 24, pages 149-150, Report of Dr Curtis dated 20 August 2015.

Mr Bartel stopped taking Endep in October 2015.[40]
[40] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, page
82, Clinical notes of Dr Curtis dated 21 October 2015.
On 8 March 2016, Dr Curtis, Psychiatrist, reported that as of 8 March 2016 he considered that:[41]
(a)Mr Bartel had been completely treated for major depressive disorder for which he had been prescribed antidepressants and these had resulted in an amelioration;
(b)Mr Bartel continued to suffer residual phenomenology which amounted to DSM-IV TR Depressive Dysthymia or DSM 5 Reactive Depression which was being aggravated and maintained by his chronic crippling disability.
[41] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages
88 – 90, report of Dr Curtis dated 8 March 2016.
Dr Curtis said he was prepared to provide ongoing supportive psychotherapy and psychoeducation but that his condition was “chronic, stable, fully medically treatment treated in practical terms and static”.[42]
[42]Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, page 89, Report of Dr Ian Curtis dated 8 March 2016.
The medical records indicate that the last session Mr Bartel had with Dr Curtis was on 8 March 2016.[43] Mr Bartel told the hearing that he did have a break from psychotherapy at that time but that he returned to treatment with Dr Curtis in July 2016. However, there is no corroborating evidence that he did so.
[43] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, page
87, Clinical appointment records of Dr Curtis.
In February 2017, Dr Curtis, Psychiatrist, provided a further report for the purposes of Mr Bartel’s AAT appeal before the SSCSD. In that report Dr Curtis reports that he assessed Mr Bartel on 20 August 2016 (sic) and had continued support of rehabilitative ameliorating sessions with him since. Dr Curtis reported that Mr Bartel suffers either with an obsessive-compulsive personality disorder or from a high-level autistic spectrum disorder (Asperger’s syndrome). Dr Curtis said, for various reasons, he found it impossible to state in a definitive way whether there is high-level Asperger’s syndrome but that he did think that at the very least there is a personality disorder with obsessive-compulsive features which underlines, underscores, and aggravates the major depressive syndrome.[44]
[44] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages
120 – 130 report of Dr Curtis dated 6 February 2017.
Conclusion on Impairment
The Secretary accepts that Mr Bartel suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[45]
[45] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, page 6, para
4.23.
Considering the above medical evidence, I find that during the Qualification Period Mr Bartel suffered a Lower Limb Impairment, a Lumbar Spine Impairment and a Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
DOES MR BARTEL’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[46] They are function based[47] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[48]
[46] Determination, s 4(2) and 5(2)(a).
[47] Determination, s 5(2)(b) and (c).
[48] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[49]
(a)Mr Bartel’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[49] Determination, see s 6(3).
Mr Bartel’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[50]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[50] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[51] the following must be considered:[52]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[51] For the purposes of ss 6(4)(a) and (b) of the Determination.
[52] Determination, see s 6(5).
A condition is fully stabilised[53] if:[54]
(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[55]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[53] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[54] Determination, see s 6(6).
[55] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Mr Bartel’s Left Foot Drop Condition permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Bartel’s Left Foot Drop Impairment was fully diagnosed, treated and stabilised during the Qualification Period.[56]
[56] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, page 6, para
4.25.
The medical evidence set out in paragraphs 12-27 above supports a finding that Mr Bartel’s Left Foot Drop was permanent.
Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
I have to assess the level of impact of Mr Bartel’s Left Foot Impairment against the descriptors[57] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[58]
[57] Determination, see ss 3 and 5(3).
[58] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[59]
[59] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[60]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[60] Determination, see s 7.
I must not take into account the following information in applying the Tables:[61]
(a)symptoms reported by Mr Bartel in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Bartel’s local community.
[61] Determination, see s 8.
Which Tables are appropriate are determined by:[62]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[62] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[63]
[63] Determination, see s 10(3).
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.[64]
[64] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[65]
[65] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[66]
[66] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
The evidence identifying loss of function comes from two Job Capacity Assessment reports and a report from Dr Lucas. The JCA report of 11 December 2015 indicates that Mr Bartel says:-[67]
·He was independent through daily living activities. Except has difficulty putting a sock on his left foot in the mornings.
·Driving is okay, for 60 – 70 km.
·An exercise regime of swimming and walking, both, twice a day for 30 minutes each.
·Using either the walking stick or his ankle/foot orthosis when mobilising
·Holding onto banisters when negotiating steps
·Standing and walking limits of 30 minutes
·Mobilising independently from a chair
·Going to the shops, using either a walking stick or his orthosis and takes rests if he needs to whilst there
[67] Exhibit 1, T Documents, T 26, pages 153 – 159, JCA report dated 11 December 2015.
At the hearing before me Mr Bartel confirmed that what he had reported to the JCA in December 2015 was correct.
In April 2016 Dr Lucas noted that his left leg requires an external splint and that he has episodic lancinating pain which often occurs with physical activities and when sitting for long periods of time.[68]
[68] Exhibit 1, T Documents, T 31, page 194, report of Dr Lucas dated 6 April 2016.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 3 of the Determination, which deals with Lower Limb Function.
The introduction to Table 3 provides that:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The 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 purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submits that an appropriate Impairment Rating for Mr Bartel’s Left Foot Drop Impairment is 5 points.[69]
[69] See Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 25 July 2017, para 4.26.
Mr Bartel agreed at the hearing that his Left Foot Drop Impairment is having a mild impact on activities involving lower limb function and warrants an Impairment Rating of 5 points.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving lower limb function.
The Descriptors for an Impairment Rating of 5 points are:
(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
(2)       At 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.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving lower limb function.
The Descriptors for an Impairment Rating of 10 points are:
(1)       At 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; or
(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
(2)The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
(3)       This 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).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
There is no evidence that Mr Bartel is unable to walk far outside his home, is unable to use stairs or steps without assistance or is unable to stand for more than 5 minutes. An impairment rating of 10 points is therefore not appropriate.
The evidence supports an Impairment Rating of 5 points.
Is Mr Bartel’s Lumbar Spine Condition permanent and likely to persist for at least 2 years?
At the hearing, the Secretary told the Tribunal that it accepted that it was open to the Tribunal to find that Mr Bartel’s Lumbar Spine Impairment was fully diagnosed, fully treated and fully stabilised during the Qualification Period.
In April 2017, Dr Lucas explained that while there may be slight improvement in relation to Mr Patel’s back pain, he did not expect his functional capacity to improve as a result of his fixed neurological deficit.[70] Dr Panagiotou also confirms that Mr Bartel’s pain management is ongoing and that he manages his back pain with simple analgesia and rest.[71]
[70] Exhibit 3, Report of Dr Lucas dated 19 April 2017.
[71] Exhibit 4, report of Dr Panagiotou dated 10 January 2017.
I find the medical evidence supports a finding that Mr Bartel’s Lumbar Spine Impairment was permanent during the Qualification Period for the purposes of the Act.
Evidence Identifying the Loss of Function at the Qualification Date
Mr Bartel reported to the JCA in December 2015 that he can drive, exercises by swimming and walking, and that he goes to restaurants and the movies and stands up when his back becomes too uncomfortable for him to stay seated.[72]
[72] Exhibit 1, T Documents, T 26, pages 153 – 159, JCA report dated 11 December 2015.
In May 2016 Dr Lucas reported that Mr Bartel had a standing and walking tolerance of 30 minutes but that he would anticipate his sitting tolerance to be longer. Dr Lucas also noted that pushing or pulling items or carrying bags and so forth is perhaps not in his best interests.[73]
[73] Exhibit 1, T Documents, T 35, pages 214 – 215, report of Dr Lucas dated 19 May 2016.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 4 of the Determination, which deals with Spinal Function.
The introduction to Table 4 provides that:
·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:
oa report from the person’s treating doctor;
oa 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);
oa 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 conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Table 4 provides that a zero-point rating is appropriate if a person can:
(a)bend down to pick a light object off the floor (e.g. a piece of paper); and
(b)turn their trunk from side to side; and
(c)turn their head to look to the sides or upwards.
There is no evidence that Mr Bartel cannot bend down to pick up a light object from the floor or turn his trunk from side to side or turn his head. Based on the corroborating evidence provided I find that Mr Bartel’s Lumbar Spine Impairment is having no functional impact on activities involving spinal function and therefore a zero-point rating is the appropriate Impairment Rating.
Is Mr Bartel’s Mental Health Impairment permanent and likely to persist for at least 2 years?
I find medical evidence in paragraphs 37-44 supports a finding that Mr Bartel’s Depression Impairment was fully diagnosed. However, in relation to the suggestion that he may also suffer from Asperger’s syndrome and obsessive-compulsive disorder there is simply no definitive diagnosis.
The Secretary accepts that Mr Bartel’s Depressive Dysthymia Impairment was fully diagnosed, but contends that it was not fully treated and not fully stabilised during the Qualification Period.[74] The Secretary submits that the reason this condition was not fully treated and fully stabilised during the Qualification Period is because Mr Bartel ceased having any psychotherapy with Dr Curtis in March 2016 and had not undertaken a trial of anti-depressant medication.
[74] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, para 4.32.

It is not in dispute that the only records of any medication being taken for this condition is the possibility of Endep. However, the Endep was prescribed for pain and not for depression, particularly given that it was prescribed prior to Mr Bartel being diagnosed with depression. The treatment that is recommended by Dr Curtis, Mr Bartel’s treating psychiatrist, is ongoing psychotherapy. Dr Curtis makes no mention of having recommended or advised Mr Bartel to trial antidepressants and in fact makes a particular mention that Mr Bartel had trialled antidepressants in the past. I also note that despite having psychotherapy treatment approximately every 2 weeks with Dr Curtis between August 2015 and March 2016 the Secretary suggests that this is not enough to satisfy the requirement of the condition being fully treated. However, I note that for a condition to be considered fully stabilised the Determination provides, see paragraph 51 above, that even where a person has not undertaken reasonable treatment for the condition and significant functional improvement enabling a person to undertake work in the next 2 years is not expected, even if that person undertook reasonable treatment that this would satisfy the requirement that the condition is fully stabilised. The Determination also provides that even where the person has undertaken reasonable treatment, such as here in the form of psychotherapy treatment over a period of 6 to 7 months, if further reasonable treatment is unlikely to result in significant functional improvement in the next 2 years the condition is also considered fully stabilised.
Dr Curtis reported that as at 8 March 2016 that he had completely treated him for his major depressive disorder even though he would require ongoing psychotherapy.[75] Dr Curtis also reports that Mr Bartel would be unemployable for more than 2 years.
[75] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages 84
– 85, report of Dr Curtis dated 8 March 2016.
In May 2016, the JCA concluded that Mr Bartel’s mental health condition was not fully treated and fully stabilised because there was insufficient information available to assess the condition.[76] However I note that at that time the JCA did not have a copy of Dr Curtis’s report of 8 March 2016.
[76] Exhibit 1, T Documents, T 34, page 209, Job Capacity Assessment Report dated 9 May 2016.
I find that during the Qualification Period Mr Bartel’s Depression Impairment was permanent for the purpose of the Act and likely to persist for at least 2 years. An Impairment Rating using the Impairment Tables can now be assigned.
Relevant Impairment Table and Impairment Rating
Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.
The introduction to Table 5 provides that:
·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 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:
oa report from the person’s treating doctor;
osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;
ointerviews 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.
The JCA did not assign an Impairment Rating as it concluded that Mr Bartel’s mental health condition was not permanent.[77]
[77] Exhibit 1, T Documents, T 34, page 209, Job Capacity Assessment dated 9 May 2016.
The Secretary submitted that in the event that the Tribunal found that Mr Bartel’s Depression Impairment was permanent an appropriate Impairment Rating was 5 points under Table 5.
At the hearing Mr Bartel submitted that this condition should be assigned at least a 10 point rating because he will suffer from his left foot drop disability all of his life and no longer is able to have the life that he used to have. Mr Bartel also said that because of his age he cannot recover as well and it has been impossible for him to find any work to date because of his physical disability. Whilst the Tribunal empathises with Mr Bartel regarding his lifelong disability the Tribunal must assign ratings in accordance with the Impairment Tables and the Descriptors therein.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 5 points are:
(1)The person has mild difficulties with most of the following:
(a)self care and independent living;
Example: The person lives independently but may sometimes neglect self-care, grooming or meals.
(b)social/recreational activities and travel;
Example 1: The person is not actively involved when attending social or recreational activities.
Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.
(c)interpersonal relationships;
Example: The person has interpersonal relationships that are strained with occasional tension or arguments.
(d)concentration and task completion;
Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
Example 2: The person has some difficulties completing education or training.
(e)behaviour, planning and decision-making;
Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
Example 2: The person has slight difficulties in planning and organising more complex activities.
(f)work/training capacity.
Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.
In order to assign an Impairment Rating of 10 points the evidence would need to show that there is a moderate functional impact on activities involving mental health function.
The Descriptors for an Impairment Rating of 10 points are:
(1)       The person has moderate difficulties with most of the following:
(a)       self care and independent living;
Example: The person needs some support (that is, an occasional visit by or assistance from a family member or support worker) to live independently and maintain adequate hygiene and nutrition.
(b)       social/recreational activities and travel;
Example 1: The person goes out alone infrequently and is not actively involved in social events.
Example 2: The person will often refuse to travel alone to unfamiliar environments.
(c)       interpersonal relationships;
Example: The person has difficulty making and keeping friends or sustaining relationships.
(d)       concentration and task completion;
Example 1: The person finds it very difficult to concentrate on longer tasks for more than 30 minutes (such as reading a chapter from a book).
Example 2: The person finds it difficult to follow complex instructions (such as from an operating manual, recipe or assembly instructions).
(e)       behaviour, planning and decision-making;
Example 1: The person has difficulty coping with situations involving stress, pressure or performance demands.
Example 2: The person has occasional behavioural or mood difficulties (such as temper outbursts, depression, withdrawal or poor judgement).
Example 3: The person’s activity levels are noticeably increased or reduced.
(f)        work/training capacity.
Example: The person often has interpersonal conflicts at work, education or training that require intervention by supervisors, managers or teachers or changes in placement or groupings.
Evidence Identifying the Loss of Function
In August 2015 Dr Curtis’ notes of a consultation with Mr Bartel indicate that Mr Bartel told him:
·he was struggling;
·he had nothing to enjoy;
·he used to have a social life and was a fun guy but not anymore;
·his mind becomes distracted by confusion and back pain;
·he gets upset frequently and he is tired of being upset;
·it was hard to think and he feels like a robot;
·he can follow television but he cannot read books and gets sleepy if he tries to read;
·any reading position, even sitting up, is hard and he becomes drowsy.[78]
[78] Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages 34
– 35, clinical notes Dr Curtis – August 2015.
Dr Curtis also provides some evidence in March 2016 regarding Mr Bartel’s loss of function resulting from his depression impairment. Dr Curtis reported that he considered Mr Bartel to have a severe functional impairment. Dr Curtis went on to say that Mr Bartel:[79]
(a)“required ongoing assistance from his wife with respect to family and financial matters [and] feels estranged from family life because of role changes”;
(b)does not have any significant social/recreational activities and limits his travel to within half an hour of his home when necessary;
(c)has interpersonal relationships that are severely limited and did not appear to have functioning relationships outside of immediate family members;
(d)is “only comfortable coping with limited activities within the home and family”;
(e)“is unable to cope presently and into the future with work, workplace education training because the integration of behaviours for this is limited by his distressed maladaptive stands and a depressive inhibition of his abilities to coordinate his attention, his decisions and his actions”.
[79]Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 25 July 2017, Attachment A, pages 89-90.
The problem I have with the evidence of Dr Curtis is that some of the difficulties that Mr Bartel is describing relate to his back pain and Lower Foot Impairment, or English language difficulties. Section 8(2) of the Determination provides that, unless specifically referred to in a Descriptor, English language competence and cultural factors cannot be taken into account. In order to assign an impairment rating of 20 points, based on a severe functional impact as suggested by Dr Curtis, the evidence would need to show that Mr Bartel needed regular support to live independently, refuses to travel alone to unfamiliar environments, has very limited social contact and is organised by somebody else and/or has difficulty interacting with other people, has difficulty concentrating on a task or conversation for 10 minutes, and that his behaviour thoughts and conversation is significantly frequently disturbed. That evidence just does not present itself to this Tribunal.
The evidence indicates that Mr Bartel:
(a)may require support from his wife but does not necessarily need support to look after himself;
(b)may not be actively involved in social events but it is not clear if that has to do with his mental health, because he is in pain, or because English is not his first language;
(c)has some difficulty focusing on some tasks.
There is no evidence that Mr Bartel’s personal relationships are strained, or any evidence of any unusual behaviour.
The evidence supports a finding that this Impairment falls between two impairment ratings, 5 points and 10 points. The Determination provides that in this circumstance 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.[80]
[80] Determination, see s 11(1).
Therefore, I find an appropriate Impairment Rating for Mr Bartel’s Mental Health Impairment is 5 points.
DID MR BARTEL HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Bartel’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Bartel’s claim fails. His impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.......................[Sgd].................................................
Associate
Dated: 28 August 2017

Date of hearing: 14 August 2017

Applicant: By Phone

Solicitors for the Respondent: Sparke Helmore Lawyers

[2017] AATA 1356

28 August 2017

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Appeal

Date of hearing:	14 August 2017
Applicant:	By Phone
Solicitors for the Respondent:	Sparke Helmore Lawyers