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

Bennett and Secretary, Department of Social Services (Social services second review) [2021] AATA 4441 (26 November 2021)
Division:GENERAL DIVISION
File Number(s): 2020/7092
Re:Warren Bennett
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:26 November 2021
Place:Adelaide

The decision under review is affirmed.
....................[SGND]..........................
Senior Member B J Illingworth
Catchwords
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment – Whether a combined impairment rating of 20 points or more exists under the Impairment Tables – Whether fully diagnosed, fully treated and stabilised –Decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Cases
Dawson & Secretary, Department of Social Services [2016] AATA 332.
May and Secretary, Department of Social Services [2016] AATA 1061.
Mongan and Secretary, Department of Social Services [2016] AATA 344.
Pignat and Secretary, Department of Social Services [2017] AATA 2745.
Secondary Materials
Social Security (Active Participation for Disability Support Pension) Determination 2011.
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011.
REASONS FOR DECISION
Senior Member B J Illingworth
26 November 2021
Introduction

This is an application for review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT 1) of 9 October 2020. The AAT 1 decision affirmed a decision made by an authorised review officer (ARO) of Services Australia (Centrelink) dated 9 June 2020 to reject the applicant’s claim for disability support pension (DSP) lodged on 31 May 2019.
In his claim dated 31 May 2019, the applicant listed his medical conditions as[1]:
Type II DM [diabetes] – insulin-dependent – difficult [to] control, GORD [gastro-oesophageal reflux disease] , sleep apnoea, recurrent sinus/ear infections - impacts balance, OA [osteoarthritis], R [right] shoulder tendonitis/bursitis, elbow epicondylitis, testicular cancer (2010) à orchidectomy, depression/anxiety/panic attacks.
[1] Exhibit A, T Documents, T 7, page 133.
The applicant had previously applied for DSP in 2012, 2013, 2015 and 2016.
The ARO decided that the applicant’s diabetes is a permanent condition and that a rating of 10 points is to be assigned under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables), particularly Impairment Table 15 – Functions of Consciousness. In respect of the conditions of sleep apnoea, depression, testicular cancer and bilateral arthritis of the shoulder, those claims were not accepted as permanent as they have not been fully treated and stabilised.
The AAT 1 said the applicant did not dispute the ARO’s findings regarding testicular cancer and depression and agreed that those conditions could not be considered for DSP. The AAT 1 said that the applicant only disputed the ARO’s findings in relation to his diabetes condition and the subsequent allocation of 10 impairment points assigned under Impairment Table 15 – Functions of Consciousness in connection to this condition, as well as his upper limb condition and sleep apnoea. The AAT 1 affirmed the decision of the ARO and decided:
(i)in respect of the applicant’s diabetes, the condition was fully diagnosed, treated and stabilised (FDTS) and an allocation of 10 impairment points on Table 15 was appropriate;
(ii)in respect of his upper limb condition, at the time of the claim the condition was not FDTS and, even if it was, the evidence did not support an allocation of impairment points under Table 2 (Upper limb Function); and
(iii)in respect of his sleep apnoea, the condition was not FDTS at the time of the claim.
At the hearing before me, there was no concession that any one condition could not be considered with respect to the application for DSP. I have considered each condition afresh. The applicant was represented by Margaret Riley and the respondent was represented by Riley Calaby, Services Australia.
Issues
The Applicant’s Opening
The applicant was born on 7 May 1961. He was an abattoir worker for more than 20 years from 1989 to 2012. He suffered a number of work-related injuries including a lumbar disc prolapse in 2006, wrist strain and laceration injuries, shoulder and neck strain injuries and elbow injuries.
In 2010, he was diagnosed with testicular cancer with right orchidectomy. He had follow-up treatment and continues to suffer testicular pain.
In 2003, the applicant was diagnosed with type II diabetes which has been difficult to control. By December 2012, the applicant’s claim for income protection payments was accepted due to his uncontrolled diabetes and he remained on income protection for about two years.
On 31 May 2019, the applicant lodged his current claim for DSP which was rejected. The applicant’s job capacity assessment (JCA) for this claim assessed him as having a work capacity of 8 – 14 hours a week, but that with disability employment services assistance, he would be able to work more than 15 hours a week. This was to be contrasted with 5 JCA’s from February 2015 to September 2018 which assessed the applicant having a restricted work capacity of 0 – 7 hours per week.
The JCA for the current claim allocated 10 points for his diabetes condition under Table 15 – Functions of Consciousness, and 5 points under Table 2 – Upper Limb Function. Hence, he did not satisfy an entitlement to DSP.
It was submitted that the applicant suffered multiple effects from the consequence of his diabetic condition and that Table 15 does not capture all of his functional impairment.
The applicant was engaged with an employment services provider at the time he applied for DSP. It was submitted that there should be no dispute that his diabetes condition is FDTS and that an assessment for his diabetes condition should be of or more than 20 points. Counsel referred the Tribunal to a Diabetes Australia publication[2] under heading “Symptoms” which listed 12 symptoms of type II diabetes. It was submitted that the applicant suffers from 11 of those symptoms and that he had been suffering from those various symptoms since 2013 and at the time of his current DSP claim.
[2] Exhibit C.
In the applicant’s Statement of Facts, Issues and Contentions (SOFICs), it was submitted that the applicant’s impairment ratings are as follows[3]:
Table 2 – upper limb function – 10 points
Table 3 – lower limb function – 5 points
Table 4 – functions of the spine – 5 points
Table 5 – mental health functions – 10 points
Table 15 – functions of consciousness – 10 points.
In the alternative, the applicant submitted that he was entitled to an allocation of 20 points pursuant to Table 1 – Physical Exertion or Stamina as a total bodily assessment having regard to all of the abovementioned conditions.
[3] Page 29, paragraph 3.46.
Albeit the applicant was engaged with an employment services provider at the time of his claim for DSP and had not completed his program of support, it is submitted he fell within the exception in s 7(5) of the Social Security (Active Participation for Disability Support Pension) Determination 2011 (the POS Determination), namely that he is unlikely to find or maintain work because of his condition.
The Tribunal raised with counsel that there appeared to be an absence of a psychiatric or clinical psychologist report in relation to his claim for mental health functional impairment. Counsel agreed there was no recent report. There were reports of psychologist Mr Edward Zahra dated 4 October 2001 and, more particularly, Dr Marty Ewer dated 22 November 2001. In respect of the latter, it was reported the applicant had made a full recovery from his adjustment disorder and had returned to the workplace. Counsel agreed but submitted that shortly thereafter the applicant suffered a recurrence of his psychiatric condition which has since remained ongoing.
The Respondent’s Opening
The respondent relied on the filed SOFICs.
The Qualification Period (QP) in respect of the applicant’s claim is the period from 31 May 2019 to 31 August 2019.
The parties agree that paragraph 94(1)(a) of the Social Security Act 1991 (the Act) is satisfied, namely that the applicant had permanent impairments within the meaning of that paragraph at the time of the claim and during the QP. It is also agreed that the applicant’s diabetic condition was FDTS as at the date of his current claim for DSP.
The secretary also agrees with the applicant’s primary contention that the resulting impairment to functions of consciousness consequent upon his diabetic condition should be assigned at 10 points under Table 15, which is consistent with the findings of the AAT 1 and the 2019 JCA report.
The parties also agree that the applicant’s obstructive sleep apnoea was fully diagnosed at the time of his claim.
The issue between the parties is whether the applicant satisfies the requirements of s 94(1) (b) and (c) of the Act.
The Secretary submitted that in respect of the applicant’s diabetic condition, it would not be open to assign a higher impairment rating of 20 points under Table 15 because there is no evidence that, at the time of claim or QP, he was unable to obtain a driver’s licence on medical grounds. Further, the Secretary submitted that it would not be appropriate to assign the applicant a further impairment rating pursuant to Table 1 – Functions requiring Physical Exertion and Stamina due to the confounding influence of his obstructive sleep apnoea condition, which was not, at the time of the claim, fully treated and stabilised. In the alternative, should the Tribunal find that the obstructive sleep apnoea condition was fully treated and stabilised, it would not be open on the available medical evidence to assign that condition greater than 10 points on Table 1 because there was no evidence that the applicant would be unable to sustain work-related tasks of a clerical, sedentary or stationary nature for a continuing shift of at least three hours.
The Secretary also submitted that it is not open to the Tribunal to assign an impairment rating under Table 3 – Lower Limb Function for any impairment to his lower limbs consequent upon his diabetes, because there is an absence of medical evidence that during the QP the applicant was unable to stand for more than 10 minutes, or that he required a lower limb prosthesis or a walking stick.
In respect of the applicant’s obstructive sleep apnoea, the Secretary submitted the condition was not fully treated and stabilised and referred to the report of laryngologist, Dr Athanasiadis, dated 3 March 2016 that the applicant should pursue a sleep study with a view to CPAP therapy, which if not tolerated, then losing weight and removal of tonsils would make a big difference. The applicant was not compliant with the recommended CPAP therapy and the alternative recommendations of Dr Athanasiadis were not pursued.
The Secretary submits the applicant’s right upper limb condition was not fully stabilised at the time of the claim and referred to the evidence given to the AAT 1 that his shoulders were not too bad at the time he made his claim for DSP, but rather they were exacerbated after the QP when he tried to lift a heavy barbecue. Without that exacerbation, the condition cannot be regarded as fully stabilised or, in the alternative, that no more than a nil impairment rating could be assigned under Table 2 – Upper Limb Function.
The Secretary submits that the applicant’s mental health condition was not fully diagnosed at the time of the claim or during the QP as the only medical evidence directed to this condition were two reports from psychologist Mr Edward Zahra dated 4 October 2001 and psychiatrist Dr Marty Ewer dated 22 November 2001. Counsel referred to the competing diagnoses, namely, Mr Zahra’s opinion that the applicant’s condition was consistent with Post-Traumatic Stress Disorder (PTSD), whereas Dr Ewer diagnosed Adjustment Disorder with Anxious Mood which had fully resolved.
The Secretary disagreed with the applicant’s submission[4] that a subsequent diagnosis by the applicant’s treating general practitioner of anxiety and depression contained in a letter from Dr Symonds approximately three years later dated 5 November 2004[5] amounts to a diagnosis of a medical condition with evidence from a clinical psychologist (namely the 2001 report of Mr Zarah) as required by Table 5. The applicant relied on Dawson & Secretary, Department of Social Services[6] as authority for that proposition. The Secretary submitted this was wrong for three reasons, namely, (i) the general practitioner’s diagnosis was of a different condition to the diagnosis of Mr Zarah three years earlier, (ii) there was nothing in the available reports to suggest the general practitioner had regard to the earlier diagnosis of Mr Zarah, and (iii) the most recent opinion by a clinical psychologist or psychiatrist is that of Dr Ewer dated 22 November 2001 who reported the mental health condition had resolved.
[4] Applicant’s Statement of Facts, Issues and Contentions, page 26.
[5] Exhibit B, pages 51-52.
[6] [2016] AATA 332.
The Secretary submitted that there was insufficient evidence to support findings of impairment with regards to the applicant’s other stated medical conditions.
The Secretary submitted that the applicant did not satisfy the program of support requirements in accordance with s 94(1)(c) of the Act. The person must participate in a program of support for 18 months or 546 days in the three-year period that ends on the day immediately before the claim for DSP. The applicant had only participated for 284 days during that three-year period and cannot support the program of support requirement through the ordinary rule.
Insofar as there are exemptions to the program of support requirement, the applicant was continuing to participate in a program of support at the date of his claim. Hence, the subclause 7(3) or (4) exemptions in the POS Determination cannot apply because they each require that a person has terminated a program of support. As to the subclause 7(5) exemption, the Secretary submits that this does not apply because there was no evidence as at the date before the applicant’s claim for DSP that he was prevented solely from his impairment from improving his capacity to prepare for, find or maintain work through continued participation in a program of support.
The Secretary submitted this was a distinct from a person’s continuing inability to work (CITW). A person may be presently unable to work but this does not mean the person is unable to improve his or her capacity to prepare for, find or maintain work within the next two years by continued participation in a program of support.
Accordingly, the Secretary submitted that the applicant could not qualify for a disability support pension absent a rating of 20 points under a single impairment table. Further, even if the program of support criteria was satisfied, the applicant did not have a CITW during the QP. The applicant’s general practitioner Dr Williams was of the opinion that the applicant could not perform heavy physical labour such as the work he had previously been engaged in at the abattoir, which is not disputed by the Secretary, but that was not the only type of work available. There was no evidence that the applicant could not engage in other work, including clerical or sedentary type work, for at least 15 hours a week within two years with the benefit of further intervention. The Secretary relied on the opinion of the JCA in the report dated 21 December 2019 in relation to an assessment that took place on 29 October 2019[7].
[7] Exhibit A, T9, pages 190 – 203.
Legal Framework
For the applicant to qualify for the DSP he must satisfy the provisions of s 94 of the Act that:
(a)he has a physical, intellectual or psychiatric impairment(s) for the purposes of subsection 94(1)(a) of the Act;
(b)that his impairment(s) attracts a rating of 20 impairment points according to the Impairment Tables;
(c)that he has a CITW; and
(d)that if he does not have a ‘severe impairment’ which is defined as a score of 20 points under a single Impairment Table[8], the applicant must have actively participated in a program of support (POS).
[8] Section 94(3B) of the Act.
Impairment ratings are to be assessed having regard to the Impairment Tables which are found in the Determination. Those Tables contain instructions for assessing impairments with respect to nominated conditions. The condition must be ‘permanent’, which means that the relevant condition must be FDTS[9] as at the date of the claim or up to 13 weeks thereafter[10] (the QP). The QP is from 31 May 2019 to 31 August 2019.
[9] Clause 6(4) of the Determination.
[10] Schedule 2, Clause 4(1), Social Security (Administration) Act 1999 (Cth).
In assessing whether a condition is fully diagnosed and fully treated, clause 6(5) of the Determination provides that the following must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if:[11]
(a)the person has undertaken reasonable treatment for that condition, and it is unlikely that further reasonable treatment will result in significant functional improvement to a level enabling the person to undertake work in the next two years; or
(b)if the person has not undertaken reasonable treatment for the condition:
(iv)such treatment is not expected to result in a significant functional improvement to a level enabling the person to undertake work in the next two years; or
(v)there is a medical or other compelling reason not to undertake reasonable treatment.
[11] Clause 6(6) of the Determination.
In assessing the functional impact of permanent conditions under an Impairment Table, the diagnosis of the condition must be made by an appropriately qualified medical practitioner, and there must be corroborating evidence of the person’s impairment. Self-reporting of symptoms alone is insufficient.
The respondent accepts that the applicant has impairments and that s 94 (1) (a) of the Act was satisfied at the time of the claim and during the QP.
The Applicant’s Evidence
The applicant was 60 years of age and lives at Lobethal. He prefers country living to the city. At the time the applicant made his claim for DSP, his adult son was living with him. He was a shift worker. The applicant had two other sons who did not live with him.
Since attending the JCA and the refusal of the applicant’s claim for DSP, he has been on new start allowance. When the applicant was employed, he worked as a slaughterman and meat processor. He stopped that work because the work was too hard on his body. He had been employed in that work since leaving school and it took a toll on his body. He was required to lift heavy beasts.
The applicant described the work-related laceration he received to his left wrist in July 2001. He had to wait until a doctor’s surgery opened but due to the continued blood loss the foreman took the applicant to hospital. A medical practitioner administered eight inside and eight outside stitches to the wound.
The applicant suffered adjustment disorder as a sequela to that left wrist injury[12]. The applicant said he did not want to return to the “kill floor”. He did not feel right about returning to that role. He undertook light duties and albeit he subsequently returned to the “kill floor”, he still did not feel comfortable in that role and was wary of everything. The applicant said he was still wary about using knives. He recently cut himself cutting up a pumpkin. He tries to stay away from knives as much as possible. He has not been the same since suffering the left wrist laceration.
[12] Exhibit A, T13, page 244.

In June 2006, the applicant complained of the lower back strain when employed with B. A. & D. K. Noske[13]. The employer was a small abattoir that did not have machinery and manual lifting and manipulation of beasts was required. He lifted something the wrong way and his back gave way. He was treated by a physiotherapist and had ultrasounds. He now avoids heavy lifting.
[13] Ibid, page 250.
The applicant’s last employment was for approximately two months with a juice factory. That was after B. A. & D. K. Noske. He suffered an injury due to a manual lifting which exacerbated is back pain. He estimated this was in about 2009. He could not continue in that employment and he thereafter ceased all forms of employment.
The applicant was referred to the medical certificates/report of Dr Williams dated 25 September 2013 in respect of his then application for DSP[14]. Dr Williams reported a diagnosis of “arthritis/tendinitis – effects right shoulder, left shoulder, lower/lumbar back, feet” with an onset date of 2006.
[14] Ibid, T14, page 336.
Dr Williams also referred to a diagnosis of type II diabetes with an onset date of 2003 and the current symptoms included increased blood sugar levels, recurrent infections, tiredness, polyuria, polydipsia, peripheral neuropathy, microvascular damage, and risk of hypos[15]. He said that in all respects his condition has worsened since that point time.
[15]Ibid, page 339.
Dr Williams reported the impact of diabetes to include nocturia (waking at night more than once to urinate), that he needed to limit the places he goes to because of his need to drink and urinate a lot, poor concentration, pins and needles in feet, poor healing and gastro-oesophageal reflux disease (GORD).
The applicant said that the various conditions, the symptoms and impact upon him had in all respects, worsened by the time of his application for DSP in 2019. He said that, for example, his nocturia has worsened, and he will also wake gasping for air sometimes.
Dr Williams also reported that due to the chronic and life-threatening nature of diseases the applicant suffered from depressive symptoms[16]. The applicant said that was still the case at the time of his DSP claim in 2019.
[16] Ibid, page 342.
The Tribunal notes Dr Williams also there reported that those conditions that were well-managed, and caused minimal or limited impact, were his diabetes, HT (which the Tribunal infers is hypertension), hypercholesterolaemia, testicular cancer – right orchidectomy in 2010 with ongoing yearly follow-up[17].
[17] Ibid.
In respect of his daily activities in 2019 at the time of his DSP claim, the applicant said he normally gets up each morning at about 9:00am – 10:00am depending on how he slept during the night. It then takes about half an hour for him to get up, attend to his toilet and bathroom needs, check his blood sugar level, administer his insulin, get dressed and feel alive. He then has breakfast.
The applicant said he checks his blood sugar level six times a day (which involves a pinprick) and administers insulin by injection four times a day. On occasions, he might increase the level of testing and injection if required.
After breakfast, he does not do much. He may go for a walk if he feels up to it, do some light gardening or play the guitar. He will walk about two laps of an oval that is across the road from where he lives. He agreed with counsel’s estimate that the oval would be about 500 metres in circumference and, therefore, he would walk a kilometre which would take him about half to ¾ of an hour. He walked on recommendation from his doctor. When he returned home, he would have a drink and a snack.
The applicant’s counsel referred the applicant to his evidence before the AAT 1 in which he said that he hurt his shoulder by lifting a barbecue; and to his JCA Report dated 26 November 2013, in which the author reported reduced range of movement in his right shoulder having recently been aggravated by his injury[18]. The applicant said that he can aggravate his shoulder by doing things he should not do. For example, the other day he moved the couch and, as a result, he had to go and see a physiotherapist. He has to take care when he moves things and will often use a sack truck or wheelbarrow to assist. He indicated his left shoulder can be “thrown out”. His left shoulder is now more of an issue than his right shoulder.
[18] Ibid, T9, page 145.
The applicant said that he will do painting in or around the house, but he has to take care and will have regular breaks. His son left home about a month ago so he is no longer available to assist. He then acknowledged in response to the Tribunal that his son did not really provide any assistance in the home but tended to play games on the computer. He helped the applicant move the couch recently but, on that occasion, the applicant hurt his shoulder despite that assistance.
The applicant said that he will try and eat a light lunch such as a sandwich or biscuits with a tin of tuna and he is required to drink a lot of water. After lunch, he does not do much but will go online. He does not watch television much due to the constant bad news.
The applicant used to restore old cars, and in May 2019, he had an old HX Holden Premier car which he was restoring. He had been working on that car for about 10 years. It belonged to his son. He described pain in her shoulder and wrist when “rubbing down” the car panels, so he spray-painted the car and sold it in 2020. In response to the Tribunal, he said that in May 2019 he was still working on the car but as time passed, he found it more difficult. In May 2019, he would work on the car for about an hour and then have a break. He would stop rubbing it down and then go and do something else. He did not work on the car every day, hence that is why he spent 10 years working on it. He also lost interest because his body could not do the things it used to.
The applicant said he could use a keyboard, but he did not like using a computer because looking at a screen would affect his vision. When he uses a computer, he is on there for about an hour at most.
The applicant was referred to a Maxima course undertaken as part of his program of support. He described himself as not an intelligent person. He undertook a warehouse course, but he kept falling behind and was not completing assignments on time. Maxima would help him and take him to the library. They eventually helped him “get over the line”. In response to the Tribunal, the applicant acknowledged that it was not his physical capacity which was the impediment. He said that he would get tired, but he was more suited to employment at the meatworks, or a shearing shed. He left school when he was aged 15 years.
The applicant said he would not be confident working in a warehouse and, if there were large pallets and he was using a forklift, he will be scared he would have a dizzy spell and drop the pallet on somebody. The applicant referred to his last employment where he had been learning to use forklift, but his position was terminated.
The applicant does not like reading. He has difficulty remembering what he has read. He does not like television. He does not tend to sit for long unless he falls asleep. He tends to get up and have a walk around. There are no programs on television that he likes, save for the fishing programs. He is a keen fisherman. He will record those programs which usually run for about an hour and then watch them when he feels like it. He can watch the whole program unless he gets up to make something to eat, in which case he would pause the program.
In the evening, he has a decent meal. He will get items that are pre-cut such as lettuces and salad. It was fairly easy to prepare those meals. In May 2019, the applicant would prepare the evening meals for he and his son. His son was a chef so on occasions he would bring meals home for them. They also ate a lot of takeaway at that time. He would wash the dishes when they became unbearable, which he would do bit by bit at night. He said that he would do short bursts, cleaning the dishes. He would get pins and needles in his feet. He still cleans dishes in short bursts, but the pins and needles are much worse now than in May 2019. His feet now feel like he is walking on glass when he gets out of bed. He would have a similar sensation when he takes his boots off at the end of the day. It feels like his feet have puffed up even though swelling may not be noticeable. He now wears slip on rather than lace up shoes.
The applicant said that he does not put away the dishes after washing them. He has a second sink, so he lets them dry in that second sink rather than putting them away. He knows he has to use them again. He has both high and low cupboards in the kitchen. He tends to stay away from using the high cupboards. He can reach up, but he does not like to do it. It will hurt. He works around the problems that he has.
In May 2019, at the time of the claim for DSP, his other leisure activity was playing the guitar, however, he has had some difficulty since the incident in which he slashed wrist. More recently he has lost interest in the guitar.
He showers daily. He has a handrail and a ledge onto which he can put his feet so he can clean properly. He takes particular care of his feet as advised by his podiatrist. He does not want to lose his toes because of his diabetes. He consults a podiatrist every 10 weeks who checks his feet, including for sensitivity mainly because of his diabetes. Heavy lifting also impacted upon his feet. He was seeing the podiatrist at the time of his claim for DSP. He cannot get his left arm behind his head to wash his hair. That has been a problem for a long time. He uses his other hand and arm to do that.
Counsel referred the applicant to the report by Dr Boyer that the applicant had a loss of balance at the time of his payout for diabetes. The applicant said that was a long time ago and that was because of problems with headaches. He has not consulted Dr Boyer for some time.
The applicant said that he had difficulty dressing and avoids buttons. All of his clothes are pull on and he does not wear lace up shoes. He has a loss of dexterity, for example, with coins. He uses a swipe card now. In May 2019, he would not drop things but now his dexterity has worsened. He will now put his hands in warm/hot water to get feeling into his hands. This was mainly during winter. He was doing that when he was working. He would otherwise suffer pins and needles or cramp. He last worked in 2012. He would still do that from time to time in May 2019, mainly in winter but sometimes in summer.
If the applicant dropped anything, he does not like picking up the item. He gets dizzy bending and standing up. That started when he was diagnosed with diabetes and continued in May 2019. He does not wear jeans and hasn’t done so for years. He finds them uncomfortable. He normally wears tracksuit pants.
It takes the applicant about an hour to get ready to go out, for example, to the doctors. The doctor’s surgery is a 12 to 15 km drive to the next town from where he lives. He will drive himself there unless a friend drives him. It is a quiet road. He gets his blood sugars checked at a local doctor’s surgery which he has done every 12 weeks for some years.
When the applicant went to Maxima a friend would drive him. Sometimes the applicant would drive and, if he felt funny, she would take over. The applicant still has a driver’s licence. He doesn’t like turning his neck and so he uses his mirrors. The applicant’s son drove him to the city to attend today’s hearing.
The impact of driving for half an hour results in him feeing anxious and panicky. He doesn’t like being too far from home in case something goes wrong. He had one episode a few years ago around 2018 – 2019 when he started to feel unwell and nauseous. He drove home. If he drives for more than 20 minutes from his home, he feels a sensation coming on. He wondered if it was a panic attack, but he does not know.
As for household chores, he will do things gradually. One room per day and another the next. He will try and mop once a week. He said he is tidy, but things are getting harder as time goes on. In May 2019, when his son was living with him, the applicant washed sheets and towels. His son did very little around the house, but he did his own washing. The applicant changes the sheets at least once a week. The applicant showers at night, hence, he is clean when going to bed.
The applicant said his clothesline is positioned low. In May 2019, with regards to cleaning the house, his son did the “low stuff”, and the applicant did what he could. He would mow the lawn which was not a large area and would take under five minutes. His shopping was normally delivered and rather than arriving in boxes, he has asked they deliver them in bags inside the box. This was not so much the case in May 2019 but more now. They were still delivering in 2019. He did not like shopping. He would on occasion shop with his friend, but he did not enjoy driving and he would feel panicky if she was not there. He thinks about things going wrong. The “hypo” comes on. He thinks to himself that he does not want to have a “hypo” now, and that contributes to feeling panicky.
He can lift an empty box but not over his head. He would lift a carton of beer and put it in a trolley. He has been drinking light beer after he was diagnosed with diabetes. He gets two two-litre cartons of milk and lifting those does not cause difficulty. It is repetitive actions that cause him discomfort.
The applicant said he does not like to use stairs. He tends to be quick to perspire. He always avoids them. He does not catch a bus for fear of panicking. He can feel the dizzy, headache and nauseous sensation coming on. The applicant saw his doctor the first day the sensation happened. That is why he went to see the psychologist. This was around 2017-2018. It would have to be 3-4 years ago because his friend has been shopping with him since then.
The applicant is currently taking medications namely metformin and lipitor for his diabetes and somac for reflux. He also takes insulin. As at May 2019, he was taking the same medication but a different dose of insulin.
At the time of his May 2019 claim for DSP, the applicant said he was suffering from pain in the back, shoulder, wrist, arms, feet and testicle. Counsel referred to a letter from Dr Boyer of Gumeracha Medical Practice to Australian Income Protection[19] dated 2 August 2013. The doctor reports at that time that he suffered peripheral neuropathy causing numbness in both of his lower limbs and resulting in loss of employment.
[19] Exhibit B, pages 20-21.
The Tribunal also notes in that same letter that Dr Boyer said the applicant started insulin in 2012, suffered testicular cancer and had renal impairment due to poor glycaemic control. As a consequence of his diabetes and complications, he ceased to have the physical capacity to lift heavy meat carcasses in a refrigerated environment on slippery surfaces. He had sustained multiple skeletal injuries over time and was unable to maintain the level of heavy labour due to his poor control of diabetes peripheral neuropathy and loss of physical condition.
The applicant said his peripheral neuropathy was worse at the time of his claim for DSP in May 2019 than it was in 2013. He has difficulty standing due to foot pain. He will do things that he has to do, then he will have a break by sitting down and taking the weight off his feet.
Counsel asked the applicant whether he had considered other courses of study or retraining. He said he had not. He does not enjoy study and finds it hard to concentrate. Counsel referred the applicant to the warehousing course he completed in August 2019. The applicant said he found that course very difficult and Maxima did the last few assignments for him.
In May 2019, the various conditions had prevented him from having a social life. He does not enjoy social activities now. He used to play darts and was a keen golfer when younger and working at the first abattoir. He cannot play golf now because of his shoulders, feet and back. He doesn’t like bending down to put a golf ball on the tee. He never goes to parties or the pub. He used to do that before the diabetes. He no longer sees friends. The only family get together is Christmas time when he sees his family and grandchildren. He does not have a partner.
In response to the Tribunal, the applicant said his grandchildren live at Mt Barker and near Adelaide, but both sons’ relationships have broken down. One son now lives in Brisbane. Personal circumstances have impacted upon his ability to see his grandchildren. He has very little leisure because of his health. He said he does not feel like doing anything and has become a real recluse and feels depressed.
In respect of the employment services provider, when he made his May 2019 claim for DSP, he was attending Maxima at Mt Barker. Now they have shifted to Woodside which is an easier distance to travel.
Counsel referred the applicant to the records of Maxima[20]. The Tribunal asked what he did at Maxima from 2015 when the records commence. He said that they did not ask a lot, and mainly the questions were about job capacity and how he was going. They asked him what he could and could not do. He had difficulty recalling exactly what happened. He said the doctor gave him certificates that he was exempt from undertaking the Maxima disability employment services but could not recall which doctor and for what period he received exemptions.
[20] Exhibit A, T15, pages 505-508.
The Tribunal asked the applicant to explain what he was required to do at Maxima. He remembered raising with Maxima that he had certificates of exemption, but they refused to accept them.
Counsel referred the applicant to September 2018 when the applicant started attending Maxima every fortnight. When asked what he had to do, he said that was about job capacity. He referred to a course starting around that time and about getting his diabetes under control. These attendances in 2018 were different. He admitted to not being too cooperative at that time because he could not see a reason for being there. They were brief meetings. He often attended just to turn up.
Counsel referred the applicant to the JCA Report dated 21 December 2019[21] under heading ‘Work Capacity’ which reported the applicant’s baseline work capacity was 8 – 14 hours per week but with the assistance of disability employment services he had a capacity for work within two years of 15 – 22 hours per week. The applicant said his work capacity from 2016 to 2019 saw no improvement and his conditions have worsened.
[21] Exhibit A, T9, pages 190-203 at page 200.
In cross-examination, the applicant confirmed his condition at the time of the hearing was worse than at the time of the DSP claim in May 2019, and when he attended the AAT1 hearing. Everything is getting worse as time goes on. Counsel referred the applicant to his evidence about his shoulder. The applicant said he could not lift continuously.
The applicant was referred to his evidence-in-chief in which he said he believed that his former employer at the juice factory spoke with his previous employer who made adverse comment about him being on workers compensation and, as a result, he lost his work at the cheese factory. The applicant said their communication did not help.
The applicant said his son would only do housework under duress and that he, the applicant, was left to do most of the housework. The applicant showers or takes a bath daily. As for the bath, the applicant said he has built the bath so that he can lower himself into it.
In exacerbating his shoulder moving the couch, this was about three weeks ago. There was someone helping him move the couch. In May 2019, he used a sack truck or wheelbarrow to move items and gave the example of a bag of soil.
The applicant did not use a walking stick or prosthesis during the QP.
Closing submissions
Applicant

The applicant’s counsel referred to the applicant’s claim for DSP, including uncontrolled diabetes, shoulder and lower back pain. It was submitted that he claimed DSP for those conditions in 2012, 2013, 2015, 2016 and the current claim in May 2019, however, for the July 2015 claim, his treating general practitioner, Dr Williams, had added depression to his claimed conditions.
The applicant said he was affected by whole body pain, peripheral neuropathy, ongoing fatigue and the constant fear of “hypo”. He has poor sleep, he has to toilet frequently during the night due to an increase of fluid intake due to the thirst which, it was submitted, is a feature of diabetes.
Counsel submitted that the department says the applicant suffers from sleep apnoea and, hence, the poor sleep cannot be contributed solely to the diabetes and, accordingly, effects on stamina (Table 1 – Functions requiring Physical Exertion and Stamina) cannot be rated. The applicant acknowledges that it can be difficult to compartmentalise the effects of a particular condition, such as, how much of the condition is a consequence of sleep apnoea, diabetes or disturbed sleep. However, it was submitted the three most common symptoms of diabetes are polydipsia (increased thirst), polyuria (increased urination) and polyphagia (a rise in appetite). It is submitted that sleep apnoea does not cause polydipsia or polyphagia, but that increased thirst and increased urination does cause poor sleep, namely, nocturia (waking up more than once a night to go to the bathroom). Nocturia causes fatigue which was referred to in the medical report of Dr Williams dated 25 September 2013[22]. The applicant has said his condition has not improved since 2013. Hence, it is submitted he was already having disturbed sleep and fatigue due to his need to urinate frequently during the night which, it is submitted, related to his long-term documented uncontrolled diabetes.
[22] Exhibit A, T14, pages 340-341.
Counsel submitted that these symptoms of thirst and nocturia (frequent urinating at night), cause a real and operative contribution to the applicant’s fatigue and can be treated separately to the condition of sleep apnoea. Counsel referred to the applicant finding the CPAP mask too uncomfortable to wear but that, it is submitted, is separate to the nocturia which had been evident for years and a consequence of the uncontrolled diabetes.
Counsel referred the Tribunal to Pignat and Secretary, Department of Social Services[23] which was a cancellation of DSP, not a rejection of a claim for DSP, as was this matter. In that matter, Deputy President McCabe considered contribution of non-permanent conditions, such as sleep apnoea and obesity, to the applicant’s symptom of fatigue, which condition was also contributed to, by a permanent condition, namely, hyperthyroidism. Deputy President McCabe also observed that the presence of non-permanent conditions was significant because he was not permitted to assign an impairment rating under the tables for impairment of functional impact if the condition was not permanent. Deputy President McCabe said[24]:
I accept that, at least in some cases, it will be impractical to isolate the contribution of a particular condition towards an impairment when a number of other conditions also contribute to that impairment. I also accept this is beneficial legislation. In those circumstances, I accept a permanent medical condition need not be the only contributor to impairment before that impairment can be assessed, at least in cases where it would be practically impossible to isolate the contribution made by a permanent condition as opposed to another, non-permanent condition. But how significant must the contribution of the permanent condition be relative to the non-permanent conditions before the impairment can be said to result from the permanent condition?
That may be the wrong question. Mr Black certainly seemed to think so. At any rate, I do not think it is necessary to provide a complete answer. For present purposes, it is enough if I say an impairment does not result from a permanent medical condition if the evidence I prefer suggests the permanent medical condition did not make a real or operative contribution to the impairment. It would strain the common sense meaning of the words ‘results from’ if I were to conclude that even a de minimus contribution would establish the causal connection anticipated in the legislative scheme. The legislative scheme restricts access to the DSP to persons who have exhausted reasonable medical options for treatment that might make a positive difference to their level of impairment. A permanent medical condition is not an ace that inevitably transforms an otherwise unpromising hand simply because the condition is present and cannot be definitively excluded as a contributor, no matter how insignificant or unlikely.
[23] [2017] AATA 2745.
[24] [21]-[22].
Counsel submits in this case the fatigue due to diabetes pre-existed the sleep apnoea diagnosis and treatment, and that the Tribunal should assess the applicant’s functional impairment of fatigue in accordance with Table 1 – Functions requiring Physical Exertion and Stamina. Dizziness includes the inability to do anything on a continuing basis. Counsel submitted that the applicant’s diabetes impacted upon his whole-body function such that his various conditions, including impairment to hands, feet, shortness of breath and back pain, should be assessed on Table 1 rather than separating each impairment across a range of Impairment Tables. Counsel submitted that the consequence of the applicant’s diabetes is a whole of body functional impairment.
The applicant said he cannot play golf or engage in those things he enjoyed doing. Counsel for the applicant referred to the respondent’s submission that, in respect of his upper limbs, he had a mild impairment. However, the records show that from time to time the applicant overuses his shoulder resulting in an exacerbating condition. This is not an untreated condition, but one in which the applicant needs to take more care, which he does not do. He is unable to reach behind his neck with one of his arms, but he is unable to resist doing things such as moving furniture which makes the pain worse.
In addition to the arthritis to the shoulders is the added peripheral neuropathy (pins and needles) caused by the diabetes which gives his fingers a lack of dexterity and, as a consequence, he does not like buttons or zips. Counsel conceded that upon grouping all of these impairments under Table 1, such impairment should not then be duplicated by reference to another Table which would amount to double dipping. It is only if the Tribunal finds that an impairment rating cannot be given pursuant to Table 1, will the Tribunal then consider each impairment referable to the relevant separate Table.
Counsel acknowledged the applicant said that he can perform certain functions, but he could not perform them repeatedly or continuously which would cause pain and impairment.
Counsel referred to the applicant’s evidence about his feet, that he regularly consults a podiatrist, that he takes particular care to avoid tinea and paints them with methylated spirits daily and there are times when he feels he is walking on glass, all of which are caused by his diabetes. It was also submitted that there were times when he could not, on occasions, stand for 10 minutes.
The Tables are designed to focus on what a person can and cannot do in going about activities of normal daily living.
The applicant has been treated for anxiety, depression and panic attacks. Counsel conceded the cause was likely to include his health problems, as well as his employment. Albeit the respondent argues there has been no recent clinical psychologist or psychiatrist consultation and report which is conceded, nonetheless, his condition has been managed by his general practitioner, Dr Williams, who has sent him to a psychologist and mental health workers.
Counsel for the applicant referred the Tribunal to Dawson and Secretary, Department of Social Services[25] and the decision of Member Webb, as authority for the proposition that the legislation did not require a clinical psychologist. Further, in May and Secretary, Department of Social Services[26] Member Webb said:
It can be accepted that the involvement of a clinical psychologist is specified to ensure that the diagnosis of a mental health condition by a non-psychiatrist medical practitioner is supported by or is consistent with a clinical psychological assessment by a psychologist with relevant expertise. The requirement is not for a ‘clinical psychologist’ to formulate a diagnosis, that is exclusively to be undertaken by an ‘appropriately qualified medical practitioner’, rather it relates to evidence arising from a clinical assessment of the psychological signs, symptoms or presentation of the person.
[25] [2016] AATA 332.
[26] [2016] AATA 1061 at [47].
The Tribunal raised with counsel that there was evidence of a suitably qualified medical practitioner, namely, psychiatrist Dr Ewer, which was dated 22 November 2001, in which he diagnosed adjustment disorder from which condition the applicant had fully recovered. Counsel submitted he provided a report that was relevant to the insurer in respect of the applicant’s workers compensation claim but there was evidence from his local general practitioner that said he has become much worse.
The Tribunal asked where that could be found and was directed to a report three years later of general practitioner, Dr Symons, dated 5 November 2004. In that report, Dr Symons said the applicant was suffering from an adjustment disorder secondary to his loss of ability to perform moderate to heavy unrestricted physical duties; loss of his job as an abattoir worker; and difficulty finding suitable employment. He also said that his non-insulin-dependent diabetes mellitus diagnosed in September 2003 and his loss of employment and breakdown of the marriage worsened his adjustment disorder.
Counsel said there were a lot of factors impacting upon the applicant that gave rise to his adjustment disorder. Counsel conceded that the applicant did recover from his PTSD. Dr Symons also said in his report “it is believed that the post-traumatic stress disorder following his left wrist injury of 23 July 2001 has resolved”. Nonetheless, it was submitted the applicant still has problems with knives and now has a mental health care plan. All through the medical certificates, there is reference to mental health. Counsel referred to the certificate of general practitioner Dr Boyer dated 4 April 2013 and certificates thereafter referencing anxiety and depression.
The Tribunal notes Dr Boyer’s medical certificates all refer to the applicant’s anxiety and depression as relating to his diagnosis of testicular cancer and its treatment including surgery and chemotherapy. In each of those certificates between 4 April 2013 and 12 August 2013, Dr Boyer with respect to prognosis said the symptoms are stabilised[27]. Counsel submitted that all of the things that were happening to the applicant were evident in 2013. In reference to the medical certificate dated 30 May 2013, Dr Boyer referred to the applicant’s unstable diabetes with symptoms of frequent monitoring, medical intervention and significant peripheral neuropathy.
[27] Exhibit A, T14, pages 325, 327, 329 and 331.
Counsel confirmed that the testicular cancer was diagnosed in or about February 2010 post the reports of Dr Ewer of November 2001, clinical psychologist Mr Zahra of October 2001 and Dr Symons of November 2004.
Counsel referred to the medical certificate of Dr Williams dated 12 February 2014[28], which refers to a diagnosis of anxiety as a separate condition and under heading ‘symptoms’, and that the anxiety related to ongoing medical problems including diabetes, cancer and health. Counsel also referred to a report of endocrinologist and physician, Dr George Stoltz, dated 7 April 2015 who reported the applicant is depressed, not working, not exercising and remaining overweight but that there were no signs of diabetes-related disease. Counsel referred the Tribunal to numerous other medical certificates thereafter, including a certificate of Dr Karen Williams dated 29 November 2017 who confirmed a diagnosis of anxiety and depression and with prognosis that he was likely to show considerable improvement within two years[29]. I also note that the certificate dated 8 May 2016 said his depressive condition was temporary. On 29 March 2017, Dr Williams certified that his anxiety/depression was an exacerbation of his existing condition and gave a prognosis of “uncertain”. In the certificate dated 5 June 2017, again, in respect of anxiety/depression the symptoms are:
panic attack, depressive features, poor sleep, headaches – compounded by OSA (which the Tribunal infers is obstructive sleep apnoea). Difficulty with CPAP machines - awaiting review. Linking back with local support services.
[28] Ibid, page 348.
[29] Ibid, pages 386, 398, 392, 428 and 435.
In the certificate dated 29 November 2017, his anxiety/depression symptoms were social isolation, low mood, panic attacks and his prognosis was “likely to show considerable improvement within two years.”
Counsel submitted that during this time the applicant was seeing educators for his diabetes and seeing a mental health nurse. Counsel submitted that the applicant had been diagnosed and treated by the same doctor over many years who has sent him to mental health workers and, consistent with the approach taken by Member Webb, the applicant satisfies the legislative requirement entitling him to an impairment rating under Table 5 – Mental Health Function.
Counsel said he does not take antidepressant medication because of the medication he is taking for his diabetes but overlooked asking that in evidence.
The last reference to anxiety/depression in a medical certificate was that dated 17 September 2018. Counsel submitted that if the anxiety/depression were part of the diabetes, then it is unnecessary to delve into the question of a psychiatric or clinical psychologist assessment because the Tribunal has the diagnosis of the diabetes and health breakdown which was caused or was a major contributor to the anxiety/depression.
The Tribunal referred counsel to the certificate dated 10 April 2013[30] that said his anxiety/depression was a consequence of his testicular cancer. Counsel’s response was that the applicant had also said it was related to his fear of “hypos”. Counsel submitted the diabetes has a lot to do with his panic attacks and he has a number of health issues which impact upon him. He does not like to shop or drive by himself because he has a fear of suffering a hypo and passing out. This is therefore a whole of body condition which is a severe condition.
[30] Ibid, page 325.
It was submitted that the applicant was participating in a POS at the time he made his claim for DSP and, as a result, was eligible for one of the exemptions. It was accepted the applicant does not have the required amount of active engagement at the date of claim, but we know that that was because he had medical exemptions. It is submitted that the applicant’s various medical conditions are not able to be addressed by a POS and will not improve him to the point he will be safe in the workplace. He did complete a Warehousing Certificate III. He was helped a lot to finish that certificate. The applicant has said he will be too scared to work in a warehousing environment because of this health, including his diabetes.
Counsel submits the applicant is entitled to a points assessment for each condition namely arms, back, feet, stamina and satisfies the exemption per s 7(5) of the POS Determination. Counsel referred to Mongan and Secretary, Department of Social Services[31] in support of that submission.
Respondent
[31] [2016] AATA 344.
The respondent relied on the submissions in the Statement of Facts, Issues and Contentions. Nonetheless, there were some matters that the respondent addressed.
The respondent referred to the various Impairment Tables. Even if it was possible to assign an impairment rating under Table 1 with respect to the Functions Requiring Physical Exertion and Stamina arising from his diabetes, and somehow artificially separate impairment arising from sleep apnoea, the applicant’s evidence and the medical evidence would not be consistent with an impairment rating greater than five points with regards to functional impact.
The respondent submitted the applicant, at the time of putting in his claim for DSP, was able to walk across the road and walk twice around an oval being a distance of about a kilometre. He changed his bedsheets weekly and was able to move bags of potting soil around the garden using a sack truck or wheelbarrow. Those activities, it was submitted, were inconsistent with the descriptors for moderate functional impact (10 table points) and the descriptors in paragraph (1)(a)(i) and (ii) of Table 1.
Having regard to the applicant’s sleep apnoea, counsel referred to Dr Williams’ medical certificate dated 4 April 2016[32] in which she described the symptoms of sleep apnoea namely “poor sleep, depression, HT, headaches, fatigue+++, poor concentration.” In a further medical certificate dated 29 March 2017[33]. Dr Williams described the symptoms of sleep apnoea as “excessive daytime sleepiness, poor concentration, headaches – having difficulty with cpap machine and awaiting resp unit to help address this”.
[32] Exhibit A, T14, page 390.
[33] Exhibit A, T14, page 428.
Even if the Tribunal were to find that the condition of sleep apnoea had a separable contribution to the applicant’s impairments to stamina and physical exertion during the qualification period for the same reasons already outlined, there remains no basis to assign an impairment rating of greater than five points. He had not been fully treated and stabilised during the QP.
In respect of Table 2 – Upper Limb Function, the applicant’s evidence and medical evidence was inconsistent with any impairment rating. The applicant told the Tribunal he could lift a carton of beer into a trolley and then into his car and that he could handle a 2-litre carton of milk. To be assigned an impairment rating of five points, the applicant needed to demonstrate that he had some difficulty with most of the functions referred to in (1)(a) – (d). In evidence, he said he was able to pick up heavier objects such as a carton of milk and reach up or out to pick up objects. He therefore does not demonstrate difficulty with most (at least three) of the criteria.
In respect of Table 3 – Lower Limb Function, the applicant’s evidence was that he did not use a walking or prosthesis at the time of the QP and his ability to walk two laps around an oval was self-evidently inconsistent with an inability to stand for more than 10 minutes. Hence, neither descriptor (2)(a) or (b) for mild functional impact (5 points) could be assigned to the applicant. He therefore has a no permanent rating with respect to Table 3.
Counsel referred to the applicant’s submission in respect of May and Secretary, Department of Social Services[34] and that the applicant’s mental health condition of anxiety and depression was FDTS, having regard to the medical certificate of the treating general practitioner alone or, alternatively, in combination with the report of clinical psychologist Mr Zahra dated 4 October 2001, who reported that, that the applicant had symptoms of PTSD.
[34] [2016] AATA 1061.
That diagnosis of PTSD was contrary to the diagnosis of anxiety and depression in the medical certificates. This approach, it was submitted, would be contrary to the legislated requirements contained in the introduction to Table 5 – Mental Health Function, namely:
the diagnosis of the condition must be made by an appropriately qualified medical practitioner (that include a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

In Dawson and Secretary, Department of Social Services[35] Member Webb decided that there must be a relational element between the diagnosis by a medical practitioner (other than a psychiatrist) and the evidence from a clinical psychologist. The mere fact that the applicant attended Mr Zahra in 2001, and Mr Zahra opined that the applicant had symptoms of PTSD, does not mean that future medical practitioners who start seeing the applicant three years later in 2004 and diagnosing a different mental health condition of anxiety and depression, have done so with regards to evidence from a clinical psychologist.
[35] [2016] AATA 332.
Counsel submitted that there was nothing to suggest that a general practitioner diagnosing anxiety and depression had any regard to Mr Zahra’s 2001 report and, further, if they did have regard to the report, it would be surprising that the medical practitioner did not address the difference in the diagnosis from that of Mr Zahra.
The most recent evidence before the Tribunal that meets the requirements of Table 5 is the report of Dr Ewer dated 22 November 2001 which condition had resolved. Counsel referred to the applicant’s submission that Dr Ewer was representing the insurer in a WorkCover application and was on the “other side”. Counsel submitted that Dr Ewer was a very experienced and highly regarded psychiatrist and that the submission lacked merit.
The Tribunal agrees with that submission. It is not a question, as the respondent suggested, of Dr Ewer taking sides when reporting with respect to the WorkCover application. Not only is he a very experienced and highly regarded psychiatrist but is regularly called to give expert evidence before courts and tribunals and he well understands the principles upon which he gives that expert evidence.
Counsel for the respondent submitted that, in the alternative, should the Tribunal find the condition was FDTS it would still not be open to the Tribunal to assess the impairment rating at 20 points on Table 5 on the basis that the descriptors in (1)(a), (d) and (e) have not been established on the evidence.
As for the applicant’s submission that the POS provider’s intervention would not benefit the applicant’s medical conditions, that is conceded. It is not the role of the POS providers to improve a person’s medical conditions. POS providers are not medical practitioners or allied health professionals. It is submitted that the applicant missed the point in terms of what the POS is intended to do. It is not to cure a person or make their functional impairment better. It is to help a person prepare for, find or maintain work despite the person’s conditions. It is to help them manage their conditions to achieve or improve their job-related skills in such a way that they can undertake preparation for, or search for, work. This is a lower threshold than improving a person’s capacity to work as it is otherwise understood in s 94(1)(c) of the Act because a person’s capacity to work may not be directly improved from participation in a POS. It does not follow that the person will not improve the ability to prepare for or find employment within the person’s existing work capacity. I agree with that submission.
The respondent relies on the opinion of the JCA report dated 21 December 2019 following an assessment of the applicant on 29 October 2019[36]. The author wrote at page 202:
[The applicant] is best suited to an ongoing referral to Employment Support Services. He needs to be able to participate in a Program of Support and it is not recommended that further medical exemptions be accepted without significant information about changes to his circumstances.
[36] Exhibit A, T9, pages 190-203.
There is no evidence before the Tribunal, for example, from the applicant’s treating practitioners, that he would not be able to benefit at all from participation in the POS to improve his ability to prepare for or find work. This is to be contrasted with the case of Mongan in which such evidence was presented by the applicant’s treating medical practitioner. In this matter, the best opinion whether the applicant would benefit from the POS was the opinion of the job assessor contained within that report dated 21 December 2019. In particular, at page 201, the author wrote:
With further treatment and with specific disability employment assistance interventions and support the client is likely to gradually improve his capacity for employment in a light sedentary position.
The respondent submitted that the evidence from the applicant’s treating medical practitioners was that he could no longer engage in the heavy physical work in which he had previously been employed, but not that he will be unable to undertake light employment roles such as, for example, a console operator.
Applicant in Reply
The applicant referred to the list of medical certificates from 2014 to 2020 contained in Exhibit B[37] as authority for the proposition that the medical practitioners opined the applicant was not able to work or study over that extended period for 0 – eight hours per week. Within that list, is also reference to various JCA reports. The JCA reports dated 26 November 2013, 28 July 2015 and 12 September 2016, report a work capacity of zero – seven hours per week.
[37] Pages 53-54.
The Employment Services Assessment Report (formerly JCA report) dated 26 June 2018 reported a work capacity of 0 – 7 hours.
Counsel referred to the applicant’s evidence that his condition had worsened since 2013, and yet the JCA report dated 21 December 2019, following a 29 October 2019 assessment, reported a “miracle improvement” in his capacity to work 8 – 14 hours per week and more with the program of support. Counsel submits that the various work certificates opined that the applicant had no capacity to work over a number of years.
In reference to Table 1, Counsel agreed that there are occasions when the applicant can stand for more than 10 minutes, but there are also occasions when he cannot. He can perform light day-to-day household duties, but he has to pace himself, and he cannot use public transport for fear of panic attacks.
Consideration
The applicant has suffered from a variety of medical conditions over a long period of time including, but not limited to, workplace injury to his wrist in 2001, related mental health illness, testicular cancer, osteoarthritis, right shoulder bursitis and tendonitis, spinal pain, headaches, dizzy spells, diabetes and sleep apnoea. Those and other conditions were the subject of the medical certificates spanning a number of years.
Counsel for the applicant referred to the various medical certificates and JCA reports as authority for the applicant’s inability to work and was critical of the December 2019 JCA. However, those submissions are generally unhelpful when considering the applicant’s claim for DSP based on various medical conditions, and whether each condition was FDTS and whether the applicant had a CITW.
For example, at pages 390-394 of the T Documents are various medical certificates of Dr Williams. The medical certificate of Dr Williams dated April 2016 referred to depression, poor control of type II diabetes and investigation of obstructive sleep apnoea. Without reference to one or a combination of conditions, Dr Williams opined that the applicant was unfit for work/study from Tuesday, 5 April 2016 to Thursday, 5 May 2016 and with a prognosis of “likely to show considerable improvement within two years”.
In a subsequent medical certificate dated 8 May 2016, Dr Williams referred to poorly controlled type II diabetes, depression and OSA/OA/testicular cancer/HT/hypercholestra and opined that the applicant was unfit for work/study from Friday, 6 May 2016 to Monday, 8 August 2016 but with the prognosis of “uncertain”.
In the next medical certificate dated 1 August 2016, which referred to poorly controlled diabetes with hypoglycaemia risk, depression and OA, Dr Williams opined that the applicant was unfit for work/study from Tuesday, 9 August 2016 to Wednesday, 9 November 2016 with a prognosis of “likely to persist”.
In the medical certificate of Dr Divi, more proximate to the QP dated 3 December 2018[38] which referred to diabetes with significant complications, obstructive sleep apnoea and right testicular pain and that the applicant may need to see an oncologist for surgical evaluation, he opined the applicant was unfit for work/study from Friday, 16 November 2018 to Monday, 4 March 2019 with a prognosis of “uncertain”.
[38] Exhibit A, T14, page 445.
The conditions vary and the medical certificates do not inform a reader about the impact each condition has on the applicant or whether the combination of conditions gave rise to the incapacity to work for the specified period or the prognosis. Nor do they inform the Tribunal about whether or not a condition is permanent.
The applicant’s summary of the various JCA reports and criticism of the last JCA report needs further scrutiny.
The JCA’s are dated 26 November 2013, 11 February 2015, 12 October 2015, 24 October 2016, 26 June 2018 and 12 December 2019. They all consistently assess the applicant’s “Baseline Work Capacity of 8 – 14 years” with a “Capacity for work within two years with Intervention Work Capacity” of 15 to 22 hours per week. Save for the 2019 JCA, they all report a “Temporary Work capacity of 0 – 7 hours per week” and provide an explanation for that temporary assessment. So, for example, in the JCA dated 26 November 2013 the temporary work capacity had an end date of 12 June 2016 and the reason included that the applicant had suffered right shoulder exacerbation and was awaiting shoulder surgery.
Each JCA provided an explanation for the temporary work assessment of 0 – 7 hours. By the time of the October 2016 report, the author referred to the applicant’s right shoulder injury, depression, diabetes and shoulder pain and said planned future treatment included shoulder surgery, new insulin regime and ongoing psychological intervention which all may facilitate improvement in the applicant’s condition and capacity to work.
In the 26 June 2018 report, the author detailed the reason for the temporary work capacity and also said “with further treatment and with specific disability employment assistance interventions and support the applicant is likely to gradually improve his capacity for employment in a light sedentary position.”
The next JCA report was 16 months later and dated 12 December 2019. This was after the QP. The author made the same assessment of Baseline Work Capacity of 8 – 14 hours per week and capacity for work within two years with Intervention Work Capacity of 15 – 22 hours per week. The only difference was that the author did not on this occasion assign a temporary work capacity of 0 to 7 hours. The author recognised the Applicant may have ongoing limitations but said “with further treatment and with specific disability employment assistance interventions and support the client is likely to gradually improve his capacity for employment in a light sedentary position.” It was in this report that the author noted:
[The applicant] is best suited to an ongoing referral to an Employment Support Service. He needs to be able to participate in a Program of Support and it is not recommended that further medical exemptions be accepted without significant information about changes to his circumstances.
I do not accept that this report was suggestive of a miracle improvement as suggested by counsel for the applicant.
Hence, it is not correct to say that, in respect of the last JCA, the applicant had made a miracle recovery. The only difference was, by the time of the last assessment, there was no condition that gave rise to a temporary assessment of 0-7 hours per week.
Mental Health Condition
On 23 July 2001, the applicant suffered a workplace injury being a significant knife laceration to his left wrist. His workers compensation claim included a psychological reaction to that workplace accident.
The Tribunal received a report from clinical psychologist Mr Zahra dated 4 October 2001. He reported the applicant was exhibiting serious emotional sequela to the workplace accident. He diagnosed PTSD and commenced Cognitive Behaviour Therapy.
The Tribunal also received a report from psychiatrist Dr Ewer dated 22 November 2001 who confirmed the applicant had seen Mr Zahra on five or six occasions. The applicant reported to Dr Ewer that his anxiety and fears had resolved, and he was sleeping satisfactorily, that his memory and concentration was satisfactory, and he felt like he had returned to normal. Dr Ewer reported that the applicant had been suffering from an adjustment disorder with anxious moods after the laceration but made a full recovery and had returned to work.
The next reference to a mental health condition is contained in a report dated 5 November 2004 from the applicant’s then general practitioner, Dr Symons. Again, this appears to be in relation to a worker’s compensation claim. Dr Symons reports the applicant’s PTSD following his injury in 2001 had wholly resolved. He reported that the applicant was then suffering from adjustment disorder secondary to his loss of ability to perform moderate to heavy unrestricted physical duties, loss of his job as an abattoir worker, difficulty finding suitable work and that his compensable condition played a significant part in the breakdown of his marriage and splitting of his family. His condition was contributed to by a diagnosis of diabetes made in September 2003, which was at about the time he lost employment and the breakdown of his marriage. These factors therefore contributed to his new mental health condition.
In a medical report to Centrelink by general practitioner, Dr Myer, dated November 2012[39] there is no reference to a mental health diagnosis. The condition of greatest impact is reported to be diabetes which was poorly controlled, chronic low back pain and chronic tendinitis in both elbows and left wrist. The medical conditions causing minimal or limited impact were testicular cancer, sleep apnoea, ischaemic heart disease and left rotator cuff injury.
[39] Ibid, T14, pages 311-321.
The medical certificate from the applicant’s general practitioner, Dr Williams, dated 12 February 2014[40] refers to three conditions suffered by the applicant, namely, unstable diabetes, right shoulder tendinitis/bursitis and anxiety. She reports that the anxiety was related to ongoing medical problems including diabetes, cancer and health. In a certificate dated 15 December 2014[41], Dr Williams reports the applicant suffering from unstable diabetes with peripheral neuropathy, testicular cancer and right shoulder bursitis with no mention of any mental health condition.
[40] Ibid, page 348.
[41] Ibid, page 350.
In a report to Centrelink dated 18 December 2014[42], Dr Williams reported on those physical conditions and made no reference to any mental health condition, and in a later certificate dated 27 January 2015, there was no reference to any mental health condition.
[42] Ibid, page 351.
Subsequently, in medical certificates dated 5 April 2016[43] and following, Dr Williams referred to depression with no motivation, poor sleep and being sad and depressed. In a medical certificate dated 1 November 2016[44], in respect of depression and anxiety, she reported the date of onset of anxiety and depression as Friday, 1 January 2016. The applicant’s symptoms were poor concentration, low motivation, worry, concerns that his testicular cancer had returned and its impact, and low self-esteem. By 5 June 2017[45], Dr Williams reports symptoms of anxiety and depression to be panic attacks, depressive features, poor sleep and headaches – compounded by obstructive sleep apnoea. Dr Williams further reports difficulty with CPAP machines awaiting review.
[43] Ibid, page 390.
[44] Ibid, page 421.
[45] Ibid, page 430.
In a medical certificate dated 29 November 2017[46], Dr Williams refers to the onset of his depression and anxiety being Friday, 1 September 2017 and that he was likely to show considerable improvement in two years. In a medical certificate dated 12 June 2018[47] and 17 September 2018[48], Dr Williams reports depression and anxiety with the prognosis of “likely to show considerable improvement within two years”. Medical certificates dated 5 November 2018 and 3 December 2018 made no reference to his anxiety or depression.
[46] Ibid, page 435.
[47] Ibid, page 439.
[48] Ibid, page 441.
The applicant was receiving assistance for his mental health condition from a mental health nurse and, in a very brief letter from mental health nurse Maurie Breist dated 25 May 2018[49], the applicant was said to have indicated he now feels better able to manage his health issues and the practice file was closed. By letter dated 28 March 2019[50], being two months before the claim for DSP Maurie Breust, in a short report said:
[The applicant] has poor self-esteem and little motivation. He benefits from renovating used cars at his home. He is torn between being with his family of origin in NZ and his children in Australia… [The applicant] therefore had frequent cancellations for appointments. His level of depression was assessed as low – moderate and only improved slightly during the course of therapy.
[49] Exhibit B, page 8.
[50] Ibid, page 6.
Having regard to the evidence before the Tribunal, it is apparent that the applicant has not consulted a clinical psychologist or psychiatrist since 2001 and that his mental health condition at that time fully resolved. Dr Symons then reported in 2004 that the applicant was suffering from adjustment disorder secondary to his loss of ability to perform heavy unrestricted physical duties, loss of job, difficulty finding work, a diagnosis of diabetes, and in September 2003, from the breakdown of his marriage[51]. Those causative factors were separate from, and different to, his diagnosis three years earlier in 2001.
[51] Ibid, page 52.
As can be seen by the various medical certificates, the applicant’s anxiety and depression appears to fluctuate with reference in the medical certificates to different symptoms and different dates of onset of his anxiety and depression. In the most recent medical certificates in late 2018, Dr Williams’ prognosis was that the condition was likely to show considerable improvement within two years which included the QP.
In a letter dated 30 January 2019 four months before the QP, Dr Williams said the applicant had consulted a psychologist practicing from her surgery[52]. No evidence was received from that person. A letter from Dr Williams dated 25 March 2021[53] reports the applicant suffered from depression and was seen by counsellors at Summit Health via a mental health care plan contained in the reports from Maurie Bruest. Dr Williams reports his depression is related to chronic medical conditions and those conditions impact upon him. COVID-19 is also said to have impacted upon his mental health. The features described by the applicant were not going out much, and feeling anxious when he goes out in public alone which leads to a sick/nauseous feeling. It also impacts upon concentration and exhaustion. He is not keen to take medication. The mental health support team agreed with the diagnosis of depression and anxiety.
[52] Exhibit A, T14, page 461-462.
[53] Exhibit B, page 2.
This report postdates the QP and does not refer to the applicant’s condition during that period. Further, the support given to the applicant has been through mental health nurses at Summit Health and not by a clinical psychologist or psychiatrist which is conceded by the applicant.
Counsel’s submission that Dawson and Secretary, Department of Social Services[54] is authority for the proposition that the legislation did not require a clinical psychologist is wrong. Member Webb said:
It quite is clear that the requirement is for evidence from a clinical psychologist that is consistent with or supportive of the diagnosis. For evidence of the requisite kind to support a diagnosis it must relate, directly or indirectly, to the mental condition of the person at or about the time the diagnosis was made.
Member Webb observed the diagnosis by a non-psychiatrist doctor, in this case the applicant’s treating general medical practitioner, may predate or postdate the evidence of the clinical psychologist. He went on to suggest that the legislative obligation may be satisfied if a general practitioner gave evidence that the person had been seen by a clinical psychologist who provided evidence to that general medical practitioner supporting the diagnosis. There was no such evidence in this matter.
[54] [2016] AATA 332.

The introduction to Table 5 makes very clear that the diagnosis of the mental health condition must be made by an appropriately qualified medical practitioner, including a psychiatrist. If the diagnosis is made by an appropriately qualified medical practitioner, who is not a psychiatrist, then evidence from a clinical psychologist is required. That has not occurred in this matter.
Further, to the extent that the Tribunal has evidence from a clinical psychologist or psychiatrist, that evidence is from 2001 (16 years before the application for DSP) being a sequelae to an isolated left wrist injury in July of that year, and from which mental health condition the applicant wholly recovered. Neither expert has been consulted with respect to the current condition of anxiety/depression.
I agree with the respondent’s submission that no assessment can be made with respect to Table 5 – Mental Health Function given the absence of evidence from a clinical psychologist, and that there is no link between the applicant’s 2001 mental health condition and the current claim for DSP. As the respondent also identified, the diagnosis of Mr Zahra was PTSD, which was different to the diagnosis of Dr Ewer, and different to the condition of anxiety and depression currently being considered by the Tribunal.
Even if it were open to the Tribunal to assess an impairment point rating on Table 5, when having regard to the various medical certificates, the change of symptoms, the different date of onset of the condition, and that in late 2018 it was expected the condition would improve within two years, the Tribunal is satisfied that the condition was not fully treated and stabilised at the time of the claim for DSP or during the QP.
The applicant is not entitled to an impairment rating on Table 5.
Sleep apnoea
The applicant has for a number of years been treated for sleep apnoea.
In a report from Dr Athanasiadis dated 3 March 2016[55], he made a “likely diagnosis” of obstructive sleep apnoea. Dr Athanasiadis said if the applicant does not tolerate CPAP therapy “then losing weight +/- surgery to remove his tonsils will make a big difference.” The applicant described a history of headaches, feeling dizzy (not vertigo, more related to the headache) and waking in the mornings with headaches which improves during the course of the day. He will fall asleep during the day.
[55] Exhibit A, T14, page 414.
In a report from Respiratory and Sleep Physician Dr Shif[56], following a study conducted on 21 April 2016, he reports the applicant’s sleep architecture was fragmented and compromised by frequent wakeful episodes. His sleep efficiency was reduced at 51% and, overall, only three hours of sleep was recorded. The sleep study showed mild sleep, disordered breathing and moderate to severe oxygen desaturation.
[56] Ibid, page 450.
Sleep and Respiratory Medicine Physician Dr Chai-Coetzer in his report dated 26 October 2016[57], said the applicant complained about morning headaches and dizzy spells. He has woken from sleep with choking sensation at least three times in the past. He wakes tired in the morning with dry mouth, headaches and daytime sleepiness. He naps once or twice during the day for between 10 minutes to an hour. He wakes 3 - 4 times a night to use the toilet. The diagnostic sleep study conducted in October showed evidence of moderate constructive sleep apnoea; he was noted to have oxygen desaturation and they discussed the importance of weight loss. The applicant was keen to have a CPAP trial.
[57] Exhibit B, pages 10-11.
In a report dated 30 November 2016[58], Dr Chai–Coetzer referred to the applicant’s CPAP study and that he responded very well to CPAP with improvements in his sleep and disordered breathing, and that the applicant should consider obtaining a CPAP device. He continued to experience symptoms of dizziness and headache. The applicant was to be reviewed in two months.
[58] Ibid, page 9.
In a report dated 13 February 2018[59], Dr Chai–Coetzer said the applicant had been provided with a government funded machine in 2017 but returned it in June or July 2017 because he was not using it enough. He has since purchased a CPAP device but has not had the opportunity to use it and was awaiting his medical appointment so it could be correctly set. The applicant reported continued headaches on awakening and waking up at least twice during the night, often unrefreshed. He was keen to resume therapy but had yet to purchase his own mask. The applicant was to be further reviewed.
[59] Exhibit A, T14, page 458.
The unsigned and dated GP Management Plan Review and Team Care Arrangements Review, being a review dated 4 April 2018, reads that the applicant has bought his own CPAP machine, there were different stories about whether or not he was wearing it or that it had been calibrated[60]. He had not been using it for the last two weeks because he had a cold. The applicant experienced many symptoms of obstructive sleep apnoea – fatigue, snoring, headaches, dry mouth, urinary frequency and insomnia. He continues to fall asleep during the day.
[60] Ibid, T14, pages 469 – 474 at page 472.
In a report by Dr Williams dated 19 September 2020[61], over a year after the end of the QP, it says the applicant found it difficult to tolerate the CPAP mask which has made his treatment difficult.
[61] Ibid, T17, pages 542 – 543.
I am satisfied that the applicant’s obstructive sleep apnoea, although fully diagnosed, was not fully treated and stabilised during the QP. I agree with the respondent’s submission contained in paragraph 90 of the Statement of Facts, Issues and Contentions that the various reports clearly indicate the applicant had not been compliant with recommended CPAP treatment and, insofar as Dr Athanasiadis recommended alternative treatment, that had not been pursued.
Further, it is apparent from Dr Williams’ report post-QP that the applicant had not been using his CPAP mask, which made his treatment difficult. Hence, I am satisfied that the applicant’s treatment was still continuing well after the QP.
Further, the evidence of the applicant did not address to any adequate degree the nature of this condition at the time of the claim or during the QP. His evidence was to the effect that all of his conditions have gradually worsened over a passage of time, including post-QP. There was no evidence upon which I am satisfied that the condition of obstructive sleep apnoea was fully treated and stabilised during the QP, entitling the applicant to an impairment rating on the relevant table.
Diabetes
The respondent at paragraph 37 of the Statement of Facts, Issues and Contentions accepted that the applicant’s diabetes was FDTS at the QP. The Tribunal agrees with that concession.
However, the respondent submitted that an assessment rating could not be given in respect of Table 1 of the Impairment Tables because of the confounding influence of the applicant’s obstructive sleep disorder upon him at that time. The disruption to sleep, as a consequence of his diabetes and any impact upon functions requiring physical exertion and stamina, could not be attributed to his diabetic condition.
In respect of his sleep apnoea, Dr Shif reported in 2016 fragmented sleep and frequent wakeful episodes with a significant reduction in sleep efficiency with only three hours of sleep recorded. The various medical certificated Dr Williams dated 15 February 2018[62], 17 June 2018[63] and 5 November 2018[64] refers to varying symptoms of headaches, sleepiness, memory loss, fatigue, persistent headaches, depression, poor sleep, and faulty thinking. Dr Divi in a medical certificate dated 3 December 2018[65] referred to similar sleep apnoea symptoms.
[62] Ibid, T14, page 437.
[63] Ibid, page 439.
[64] Ibid, page 443.
[65] Ibid, page 445.
As Deputy President McCabe observed in Pignat and Secretary Department of Social Services[66]:
I accept that, at least in some cases, it will be impractical to isolate the contribution of a particular condition towards an impairment when a number of other conditions also contribute to that impairment. I also accept this is beneficial legislation. In those circumstances, I accept a permanent medical condition need not be the only contributor to impairment before that impairment can be assessed, at least in cases where it would be practically impossible to isolate the contribution made by a permanent condition as opposed to another, non-permanent condition. But how significant must the contribution of the permanent condition be relative to the non-permanent conditions before the impairment can be said to result from the permanent condition?
Deputy President McCabe went on to say:
For present purposes, it is enough if I say an impairment does not result from a permanent medical condition if the evidence I prefer suggests the permanent medical condition did not make a real or operative contribution to the impairment…
The legislative scheme restricts access to the DSP to persons who have exhausted reasonable medical options for treatment that might make a positive difference to their level of impairment.
[66] [2017] AATA 2745 at [21] – [22].
I accept the applicant’s evidence that as a consequence of his FDTS diabetic condition he will frequently wake at night to urinate (nocturia) and this will impact upon his sleep. The diabetes may also impact upon his peripheral neuropathy, lethargy, headaches and feeling dizzy which are consistent with recognised symptoms referred to in Exhibit C under heading ‘Symptoms’ of Type II diabetes. However, I am satisfied that the applicant’s sleep apnoea, which was not fully treated and stabilised, also had a significant impact on the applicant’s symptoms (including poor sleep, waking gasping for breath, fatigue, persistent headaches, depression, memory loss and poor concentration) and that, given the applicant has not fully engaged with the treatment of his sleep apnoea, I am not satisfied about level of impairment that is a consequence of the applicant’s diabetes and distinguishable from the symptoms of sleep apnoea. Had the sleep apnoea condition been FDTS as at the QP, then a Table 1 impairment rating could be properly made having regard to the applicant’s impairment of functions requiring physical exertion and stamina. Having regard to the evidence at its best, attributing an impairment to the diabetes would be speculative, particularly at the time of the QP.
I accept that the applicant’s diabetic condition also impacts upon other aspects of his functioning, including pins and needles in his feet, poor healing and GORD. Even if I was able to assess the applicant on Table 1, having regard to the whole of the evidence before the Tribunal, I am not satisfied that the applicant meets the criteria of severe functional impact entitling him to an impairment assessment of 20 points on Table 1. To the extent that he suffers shortness of breath and fatigue, and having regard to those other symptoms impacting upon the applicant that counsel for the applicant has invited the Tribunal to attribute a Table 1 impairment rating, the evidence does not satisfy me that the applicant is unable to walk around the shopping centre or supermarket without assistance, walk from a car park into a shopping centre or supermarket without assistance, perform light day-to-day household activities and has or is likely have difficulty sustaining work of a clerical, sedentary or stationary nature for a continuous shift of at least three hours. Right Upper Limb
The evidence is limited with regards to this condition insofar as an impairment assessment can be made with respect to Table 2 – Upper Limb Function.
Dr Boyer in a report dated 2 August 2013[67], said the applicant no longer had the physical capacity to lift heavy meat carcasses in a refrigerated environment or on slippery surfaces. She reported he suffered multiple musculoskeletal injuries over time and “he is unable to maintain this level of heavy labour due to the poor control of his Diabetes, peripheral neuropathy and loss of physical condition.”
[67] Exhibit B, pages 20-21.
However, the applicant in evidence said that at the time of his claim for DSP he was restoring his son’s car. He had been working on the vehicle for about 10 years. In May 2019, he would work on the car for about an hour and then have a break. That work included sanding and rubbing down the car which he spray-painted and sold in 2020. The applicant said as time passed, he had found it more difficult to work on the car and referred to shoulder and wrist pain when “rubbing down” the car panels. The report of mental health nurse Mr Maurie Bruest dated 28 March 2019[68] referred to the applicant benefiting from renovating used cars at his home.
[68] Ibid, page 6.
The applicant also said in evidence that he will move bags of soil in his garden with the aid of a trolley or wheelbarrow. He has to be careful in how he performs such functions and there will be occasions when he does something which impacts upon his shoulder. He gave an example of recently moving a couch with his son.
In the JCA dated 21 December 2019[69], four months after the QP, the applicant reported managing tasks at bench height and being able to continue his hobby of painting, but he had difficulty playing his guitar or golf. The applicant reported reduced range of motion in his left shoulder, and in evidence said that his left shoulder was now worse than his right. In the same report, the applicant is reported to have said he can manage buttons and zips and pick up a light box with two hands. The Tribunal notes that this is inconsistent with the evidence he gave to the Tribunal that he had difficulty using buttons and zips.
[69] Exhibit A,T9, page 196.
The applicant also said in evidence that he could lift a carton of beer into his trolley and lifting a 2-litre carton of milk causes no difficulty. It is the repetitive actions that cause him discomfort.
In a medical certificate from general practitioner Dr Davey dated 17 August 2020 the applicant’s right shoulder symptoms read “pain R shoulder, worse lying in bed – wakes him up. R hand swollen, decreased grip strength. Injury occurred when lifting a heavy BBQ and jarred upper limb.” The date of onset of the symptom was Friday, 29 May 2020 and the prognosis was that the applicant would likely show considerable improvement within two years.
Table 2 – Upper Limb Function provides descriptors for functional impairment. A mild functional impact and an assignment of five points requires the applicant to satisfy the following criteria:
…
(1) The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a) picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d) reaching up or out to pick up objects.
The applicant must satisfy most of those criteria, namely at least 3.
The applicant has not adduced evidence which satisfies me that, at the QP, he satisfied an impairment rating of 5 points and that he met 3 out of 4 of the descriptors. He was still restoring a car and he was able to lift objects including a carton of beer. Albeit, he may now have difficulty with buttons and zips, I am not satisfied that was the case at the QP. I note that since the QP he suffered an injury when moving a BBQ which may be impacting on his current condition. He has also recently aggravated this condition moving a couch. There is also an absence of corroborating evidence with regards to the applicant’s impairment at the time of the QP. The symptoms are self-supporting which is insufficient.
The Tribunal received a very brief report from Orthopaedic Surgeon Jan Tomlinson dated 24 March 2021[70] with regards to the applicant’s right shoulder. She reports the applicant was to have had surgery two years earlier but was deemed not fit for surgery. She recommends cortisone injections to the AC joint and continued strengthening and avoidance of provoking activities. Hence, the applicant’s treatment for that condition was ongoing.
[70] Exhibit B, page 2.
I am not satisfied that the applicant’s right upper limb was fully treated and stabilised during the QP. Further treatment was still being recommended in 2021. However, in any event, at the time of the QP he did not satisfy me that he was unable to perform most of the functions involving mild functional impact, referred to in paragraph (1) (a) – (d) of Table 2 and, therefore, he was not entitled to a point assessment under that Table.
Spine condition
The evidence in regard to this condition was unsatisfactory. There was some evidence, including a report of physiotherapist, Ms O’Leary dated 22 November 2012[71], of intermittent low back pain after straining whilst lifting; and Dr Williams, in a medical report dated 25 September 2013[72], reported of lumbar pain and referral to Adelaide Spinal Clinic for physiotherapy.
[71] Ibid, page 39.
[72] Exhibit A, T14, page 337.
As the respondent accurately noted there were no medical reports referable to an ongoing spine condition and no evidence of functional impairment that enlivens the consideration of Table 4 – Spinal Function impact, and no corroborative evidence of such impairment during the QP or at all. The applicant did not satisfy me that he was entitled to a point assessment pursuant to Table 4.
Testicular cancer
The Tribunal accepts that the applicant suffered testicular cancer and underwent a right orchidectomy in about 2010 with yearly follow-up assessments.
In a medical certificate of Dr Williams dated 5 November 2018[73], there is reported pain to the area of the left testes. In a similar medical certificate of Dr Divi dated 3 December 2018[74] it is reported that the applicant may need to see an oncologist again and raises the question of surgical intervention.
[73] Ibid, page 443.
[74] T14, page 445
There was no evidence before the Tribunal of any oncologist treatment or specialist referral prior to or during the QP, or at all. The Tribunal is not satisfied that the condition was FDTS during the QP and there was no evidence of functional impairment as a consequence of this condition.
POS
The consideration of the POS arises when an applicant is found to have accumulated 20 points or more under more than one of the Impairment Tables but does not have a single severe impairment rating of 20 points.
The Tribunal is not satisfied that the applicant suffered a severe impairment rating in respect of any one of the conditions the subject of the DSP claim. Nor is the Tribunal satisfied that the applicant is entitled to an accumulation of 20 points or more for those conditions that are FDTS.
Accordingly, the Tribunal does not need to consider whether the applicant has actively participated in a POS.
Decision
The decision under review is affirmed.

I certify that the preceding two hundred and eleven (211) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

……………[SGND]…..……………..
Associate
Dated: 26 November 2021

Dates of hearing: 16 August 2021

Advocate for the Applicant: Margaret Riley

Advocate for the Respondent: Riley Calaby, Services Australia

[2021] AATA 4441

26 November 2021

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Dates of hearing:	16 August 2021
Advocate for the Applicant:	Margaret Riley
Advocate for the Respondent:	Riley Calaby, Services Australia