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

Brady and Secretary, Department of Social Services (Social services second review) [2017] AATA 1729 (17 October 2017)
Division:GENERAL DIVISION
File Number: 2016/5451
Re:Duncan Brady
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:17 October 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
17 October 2017
INTRODUCTION

On 19 January 2016 Mr Brady lodged a claim for Disability Support Pension (“DSP”) describing his medical conditions as:[1]
·Lower back spine damage 20%
·chronic pain post lung surgery
·upper body
[1] Exhibit 1, T Documents, T 27, pages 109 – 137, Mr Brady’s Claim for DSP dated 19 January 2016.
On 4 April 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Brady by a Registered Occupational Therapist. The JCA concluded that Mr Brady’s spinal disorder was not fully diagnosed, treated and stabilised and, although Mr Brady’s chronic obstructive pulmonary disease was fully diagnosed, treated and stabilised, it only attracted 10 points under the impairment tables.[2]
[2] Exhibit 1, T Documents, T 29, pages 143 – 149, JCA Report dated 4 April 2016.
As a result of the JCA report the Department of Human Services (“Centrelink”) rejected Mr Brady’s claim for DSP on 6 April 2016.[3]
[3] Exhibit 1, T Documents, T 30, pages 150 – 152, Letter from Centrelink dated 6 April 2016.
Claim History
Mr Brady sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Brady’s medical conditions did not have a total impairment rating of at least 20 points.[4]
[4] Exhibit 1, T Documents, T 32, pages 154 – 161, Decision of ARO and notes dated 24 May 2016.
On 10 June 2016 Mr Brady sought a review of the ARO’s decision by the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[5] The SSCSD rejected Mr Brady’s claim and affirmed the ARO’s decision on 1 September 2016.[6]
[5] Exhibit 1, T Documents, T 33, page 162, Letter from AAT to Centrelink re-appeal dated 10 June 2016.
[6] Exhibit 1, T Documents, T2, pages 2–14, SSCSD’s Decision and Reasons for Decision dated 1 September 2016.
Mr Brady has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, page 1, Mr Brady’s Application for Review dated 11 October 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Brady must have a physical, intellectual or psychiatric impairment;
(b)Mr Brady’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[8]
(c)Mr Brady must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Brady meets the Section 94 Requirements is the date the claim is lodged (in this instance as at 19 January 2016), unless Mr Brady becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP Mr Brady must have met the Section 94 Requirements between 19 January 2016 and 19 April 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Brady’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[10]
DID MR BRADY HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Mr Brady’s medical conditions
[11] Determination, s 3.
Spinal Condition
A CT scan of Mr Brady’s lumbar spine performed in December 2011 found “disc degeneration at L5/S1 with probable small right lateral disc protrusion into the neuro-foramen but probably not large enough to compress the right L5 nerve root”.[12]
[12] Exhibit 1, T Documents, T6, page 62, CT report dated 5 December 2011.
Dr Yasser Gouda, General Practitioner, reported in December 2011 that Mr Brady had degenerative disc disease with low back pain.[13]
[13] Exhibit 1, T Documents, T7, page 63, Medical certificate of Dr Gouda dated 12 December 2011.
In May 2012 Dr Gouda reported that as a result of Mr Brady’s spinal condition he was “unable to sit, stand or walk for long periods” and that the pain worsened with carrying and lifting”. Dr Gouda noted that Mr Brady was treating the condition with painkillers, physiotherapy and chiropractic therapy.[14]
[14] Exhibit 1, T Documents, T8, page 69, Medical report of Dr Gouda dated 16 May 2012.
In March 2014 Dr Gouda reported that Mr Brady had developed bilateral sciatica which he described as a temporary exacerbation of a permanent condition.[15]
[15] Exhibit 1, T Documents, T 11, page 82, Medical certificate of Dr Gouda dated 10 March 2014.
In April 2016 Mr Brady had a further CT scan of his lumbar spine which showed “spondylotic changes… at the lumbar spine with sacralisation of the L5 vertebra. Only 4 lumbar vertebrae are seen. There are broad-based posterior bulges seen at the L4/5 level, which along with facet joint arthropathy, is leading to compression of bilateral exiting L4 nerve, especially on the right”.[16]
[16] Exhibit 1, T Documents, T 31, pages 152 – 153, CT report dated 13 April 2016.
Inguinal Hernia
In September 2014 Dr Inglis Chern reported that Mr Brady had a right indirect inguinal hernia and that he had been referred for surgical opinion.[17]
[17] Exhibit 1, T Documents, T 12, page 83, Medical certificate of Dr Chern dated 19 September 2014; see also T 13,
page 84, ultrasound report dated 19 September 2014.
In October 2014 Dr Gouda described Mr Brady’s hernia as temporary and likely to affect Mr Brady for less than 3 months.[18]
[18] Exhibit 1, T Documents, T 14, page 85, Medical certificate of Dr Gouda dated 14 October 2014.
In March 2015 Dr Wilson Choi, surgical PHO for Dr Clarson, reported that on examination there was no hernia detected on standing or coughing and scheduled him for review and another 3 months time. Dr Choi also advised Mr Brady that he should attend the emergency Department if he was to have a reductive or lump groin, severe abdominal pain, vomiting or any other concerns.[19]
[19] Exhibit 1, T Documents, T 21, page 99, Letter from Dr Choi dated 31 March 2015.
In July 2015 Dr Masel referred Mr Brady to a general surgeon.
Mr Brady was scheduled to have an operation to repair the hernia, performed by Dr Clarson, on 22 September 2015.[20]
[20] Exhibit 1, T Documents, T 25, page 103, Theatre booking information dated 8 September 2015.
Lung Conditions
In December 2014 Mr Brady was hospitalised for 45 days and diagnosed with spontaneous pneumothorax.[21] While in hospital Mr Brady had a right lung wedge resection.[22]
[21] Exhibit 1, T Documents, T 15, page 86, Discharge referral from Prince Charles Hospital dated 1 December 2014.
[22] Exhibit 1, T Documents, T 15, page 86, Discharge referral from Prince Charles Hospital dated 1 December 2014;
T 16, page 89, medical certificate of Dr Astra Bellette dated 1 December 2014.
A histopathology report dated 3 December 2014 reports that Mr Brady had “necrotising granulomatous inflammation, emphysema and respiratory bronchiolitis”.[23]
[23] Exhibit 1, T Documents, T 17, pages 90 – 91, Histopathology report dated 3 December 2014.
In March 2015 and June 2015 Dr Gopal Bhat reported that Mr Brady was still suffering from spontaneous pneumothorax which was causing a shortness of breath and chest pain and that specialist follow-up was planned.[24]
[24]Exhibit 1, T Documents, T 20, page 98, Medical certificate of Dr Bhat dated 27 March 2015; T 22, page 100, medical certificate of Dr Bhat dated 23 June 2015.
In July 2015 Dr Masel reported that Mr Brady had:[25]
(a)Chronic obstructive pulmonary disease (“COPD”), for which he was substituting his medications and arranging an action plan;
(b)developed neuropathic pain as a result of his lung resection which was becoming more disabling and was trialling him on Tegretol;
(c)no signs of pneumothorax and no inflammatory lesions.
[25] Exhibit 1, T Documents, T 23, page 101, report of Dr Masel dated 21 July 2015.
In September 2015 Mr Brady’s general practitioner reported that his COPD had much improved although he still had nerve pain.[26]
[26] Exhibit 1, T Documents, T 24, page 102, Chronic disease management plan.
In December 2015 Dr Bhat reported that Mr Brady was suffering from chronic pain as a result of the drain insertion to the pneumothorax which was causing a shortness of breath and chest pain and that specialist follow-up was planned.[27]
[27] Exhibit 1, T Documents, T 26, page 108, Medical certificate of Dr Bhat dated 7 December 2015.
A new COPD self-management plan was put into place in January 2016. The COPD plan advises Mr Brady what to do when and if his symptoms worsen including which medications to take.[28]
[28] Exhibit 1, T Documents, T 27, pages 138 – 139, COPD self-management plan dated 13January 2016.
Mr Brady was reviewed by Dr Masel in January 2016. Dr Masel reported that Mr Brady:[29]
·was doing quite well from a chest point of view
·gets short of breath with lifting weights through the day
·can manage 10 steps without stopping
·should be able to return to work within the next 3 to 6 months in some capacity
·should be trialled on gabapentin for the neuropathic pain
[29] Exhibit 1, T Documents, T 27, page 140, Letter from Dr Masel dated 19 January 2016.
In February 2016 Dr Bhat reported that Mr Brady was still suffering from chronic pain as a result of the drain insertion to the pneumothorax which was causing a shortness of breath and chest pain and that specialist follow-up was planned.[30]
[30] Exhibit 1, T Documents, T 28, page 142, Medical certificate of Dr Bhat dated 1 February 2016.
In August 2016 Dr Bhat reported that Mr Brady was still experiencing shortness of breath and chest pain and that general practitioner follow-up was planned.[31]
[31] Exhibit 1, T Documents, T 35, page 165, Medical certificate of Dr Bhat dated 3 August 2016.
In August 2016 Dr Bhat reported that Mr Brady had been referred to the pain clinic at Royal Brisbane Hospital.[32]
[32] Exhibit 1, T Documents, T 36, page 167, Letter from Dr Bhat dated 23 August 2016.
Mental Health Condition
Dr Howard Granger, Psychiatrist, reported in August 2017 that Mr Brady has “major depression”.[33]
[33] Exhibit 4, Report of Dr Granger dated 9 August 2017.
Conclusion on Impairment
The Secretary accepts that Mr Brady suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[34]
[34] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 14 September 2017, para 31.
Considering the above medical evidence, I find that during the Qualification Period Mr Brady suffered a Spinal impairment, COPD Impairment, and a Chronic Pain Impairment (resulting from the lung surgery) for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the hernia condition, Mr Brady confirmed at the hearing that this was repaired by the surgery in September 2015 and that, although he still had some pain resulting from the surgery, it was not relevant to this DSP application.
In relation to Mr Brady’s mental health condition, I am unable to consider this condition for the purpose of this DSP application. Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
Mr Brady was not diagnosed by, and did not consult with, a psychiatrist or clinical psychologist until April 2017. As a result, no impairment rating can be assigned to Mr Brady’s Mental Health Impairment. Mr Brady acknowledged this at the hearing. I note that the psychiatrist that Mr Brady has consulted with since April 2017, Dr Howard Granger, has reported that Mr Brady has major depression and describes Mr Brady as having a “severe impairment”. Given that this condition could now be considered fully diagnosed, as required by Table 5, Mr Brady could consider making a new DSP application.
DOES MR BRADY’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[35] They are function based[36] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[37]
[35] Determination, s 4(2) and 5(2)(a).
[36] Determination, s 5(2)(b) and (c).
[37] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[38]
(a)Mr Brady’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[38] Determination, see s 6(3).
Mr Brady’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[39]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[39] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[40] the following must be considered:[41]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[40] For the purposes of ss 6(4)(a) and (b) of the Determination.
[41] Determination, see s 6(5).
A condition is fully stabilised[42] if:[43]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[44]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[42] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[43] Determination, see s 6(6).
[44] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Mr Brady’s Spinal Condition permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Brady’s Spinal Impairment was fully diagnosed but says it was not fully treated and stabilised during the Qualification Period because there is no corroborating evidence of the treatment he has received.[45]
[45] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 14 September 2017, para 40.
I note that the JCA concluded that Mr Brady’s Spinal Impairment could not be considered fully treated and stabilised due to insufficient information.[46]
[46] Exhibit 1, T Documents, T29, page 144, JCA Report dated 4 April 2016.
The only corroborative evidence of treatment is that of Dr Gouda:
(a)who reported in May 2012 that Mr Brady was treating the condition with painkillers, physiotherapy and chiropractic therapy;[47] and
(b)who reported in March 2014 that Mr Brady had a temporary exacerbation of his lower back pain which he was treating with painkillers, physiotherapy and chiropractic therapy.[48]
[47] Exhibit 1, T Documents, T8, page 69, Medical report of Dr Gouda dated 16 May 2012.
[48] Exhibit 1, T Documents, T11, page 82, Medical certificate of Dr Gouda dated 10 March 2013.
There is no evidence of any treatment since 2014 or around the Qualification Date. There is also no evidence that there is no reasonable treatment available for this Impairment. At the hearing Mr Brady acknowledged that his Chronic Lung Pain and COPD Impairments had taken over and that he cannot have treatment for his spine because of these conditions.
Given the lack of medical information concerning this condition, I am unable to find that it is permanent for the purpose of this DSP application and no Impairment Rating can be assigned.
Is Mr Brady’s COPD Condition permanent and likely to persist for at least 2 years?
In September 2015 Mr Brady’s general practitioner reported that his COPD had much improved.[49]
[49] Exhibit 1, T Documents, T 24, page 102, Chronic disease management plan.
A new COPD self-management plan was put into place in January 2016. The COPD plan advises Mr Brady what to do when and if his symptoms worsen including which medications to take.[50]
[50] Exhibit 1, T Documents, T 27, pages 138 – 139, COPD self-management plan dated 30 January 2016.
The Secretary accepts that Mr Brady’s COPD Impairment was fully diagnosed and fully treated but says it was not fully stabilised during the Qualification Period because Dr Masel reported in January 2016 that Mr Brady should be able to return to work within the next 3 to 6 months in some capacity.[51]
[51] Exhibit 1, T Documents, T 27, page 140, letter from Dr Masel dated 19 January 2016; Exhibit 2, Secretary’s
Amended Statement of Facts and Contentions dated 14 September 2017, para 33.

A condition is fully stabilised[52] if:[53]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment[54]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[52] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[53] Determination, see s 6(6).
[54] For reasonable treatment see s 6(7) of the Determination.
There is no evidence that Mr Brady has not had reasonable treatment for the COPD Impairment. In my view, there is also no evidence that further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Brady to undertake work in the next 2 years. Dr Masel reported in January 2016 that Mr Brady’s lung function was “fairly stable”.[55] It was perhaps on that basis that Dr Masel “thought” he should be able to return to work “in some capacity”. “Work” is defined in the Act to mean work of at least 15 hours per week. There is no indication from Dr Masel whether what he meant by “some capacity” was at least 15 hours per week.
[55] Exhibit 1, T Documents, T 27, page 140, Letter from Dr Masel dated 19 January 2016.
In the circumstances, I find that Mr Brady’s COPD Impairment was permanent and an Impairment Rating can be assigned.
Using the Impairment Tables
I have to assess the level of impact of Mr Brady’s COPD Impairment against the descriptors[56] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[57]
[56] Determination, see ss 3 and 5(3).
[57] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[58]
[58] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[59]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[59] Determination, see s 7.
I must not take into account the following information in applying the Tables:[60]
(a)symptoms reported by Mr Brady in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Brady’s local community.
[60] Determination, see s 8.
Which Tables are appropriate are determined by:[61]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[61] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[62]
[62] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[63]
[63] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[64]
[64] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[65]
[65] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
Dr Masel reported in January 2016 that Mr Brady:[66]
·gets short of breath with lifting weights through the day
·can manage 10 steps without stopping
[66] Exhibit 1, T Documents, T 27, page 140, Letter from Dr Masel dated 19 January 2016.
Mr Brady told the JCA in April 2016 that he:[67]
·is independent with self-care and mobility but noted difficulty with heavier tasks such as mowing the lawn and with lifting heavy weights
·during a recent trip to the Philippines, he became increasingly short of breath while carrying and wheeling his luggage around the airport
·has a reduced tolerance for prolonged walking, indicating that he walks around the block for exercise, but finds he is symptomatic mobilising on an incline and when negotiating stairs
·he can complete the grocery shopping, but relies on family and friends for lifts to and from the shopping centre (due to not holding a driver's license) and sometimes relies on assistance from his mother with shopping due to reduced endurance
[67] Exhibit 1, T Documents, T29, page 146, JCA Report dated 4 April 2016
Mr Brady told the SSCSD in September 2016 that:[68]
·he has tried and has been trying to increase function as time has gone on but cannot do this sort of thing anymore
·he was having trouble with carrying and wheeling his luggage when he went to the Philippines in November/December 2015
·he tries to walk around the block at home but is really struggling and it exhausts him
·he can go grocery shopping and wheels a trolley around by himself and can walk by himself from the carpark into the shopping centre and can walk short distances
·physically he would be able to catch public transport
·mowing and heavier household tasks are very difficult for him and even for lighter household activities like sweeping or changing the sheets takes time to recover
·folding up the laundry can cause difficulty
[68] Exhibit 1, T Documents, T2, pages 2–14, SSCSD’s Decision and Reasons for Decision dated 1 September 2016.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
The Secretary submits that an appropriate Impairment Rating for Mr Brady’s COPD Impairment is no more than 10 points.[69]
[69] See Exhibit 2, Secretary's Amended Statement of Facts and Contentions dated 14 September 2017, para 37.
Mr Brady submitted at the hearing that an appropriate rating for his COPD Impairment is 20 points.
The Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
The Descriptors for an Impairment Rating of 20 points are:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
There is no corroborating medical evidence that Mr Brady meets the criteria for a severe impairment.
The evidence supports an Impairment Rating of 10 points for Mr Brady’s COPD Impairment.
Is Mr Brady’s Chronic Lung Pain Condition permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Brady’s Chronic Lung Pain Impairment was fully diagnosed but contends that it was not fully treated and not fully stabilised during the Qualification Period.[70] because Mr Brady had not, during the Qualification Period, had a review by a chronic pain specialist, which is best practice treatment.
[70] See Exhibit 2, Secretary’s Amended Statement of Facts and Contentions dated 14 September 2017, para 44.
Mr Brady’s Chronic Lung Pain arose after his lung surgery in 2014. Since that time Mr Brady has complained of pain.
In July 2015 Dr Masel reported that Mr Brady’s neuropathic pain as a result of his lung resection was becoming more disabling and that he was trialling him on Tegretol.[71]
[71] Exhibit 1, T Documents, T 23, page 101, Report of Dr Masel dated 21 July 2015.
In December 2015 Dr Bhat reported that Mr Brady was still suffering from chronic pain that further specialist follow-up was planned.[72]
[72] Exhibit 1, T Documents, T 26, page 108, Medical certificate of Dr Bhat dated 7 December 2015.
Mr Brady was reviewed by Dr Masel in January 2016. Dr Masel recommended that Mr Brady be trialled on gabapentin for the neuropathic pain.[73]
[73] Exhibit 1, T Documents, T 27, page 140, Letter from Dr Masel dated 19 January 2016.
In August 2016 Dr Bhat reported that Mr Brady had been referred to the pain clinic at The Royal Brisbane and Women’s Hospital.[74]
[74] Exhibit 1, T Documents, T 36, page 167, Letter from Dr Bhat dated 23 August 2016.
Mr Brady told the Tribunal that for some reason his General Practitioner had given him Lyrica instead of Gabapentin (as was recommended by Dr Masel) and that it had made him ill. He said he had tried to get into a pain clinic earlier but was unable to. He is now receiving pain specialist treatment. Dr Bhat reported in June 2017 that Mr Brady’s Chronic Pain had not yet been rectified and had led to his mental health conditions. Dr Bhat confirmed that Mr Brady is now being seen by a pain specialist at a chronic pain clinic and reported that “without rectifying the pain the depression is unlikely to improve”.[75]
[75] Exhibit 5, Report of Dr Bhat dated 21 June 2017.
During the Qualification Period, Mr Brady had not undertaken treatment with a pain specialist or pain management clinic. There is no evidence that pain specialist review is not reasonable treatment or that it is unlikely to result in significant functional improvement within the next years: section 6(6)(a) of the Determination.
In the circumstances, I am unable to find that Mr Brady’s Chronic Lung Pain was fully treated and fully stabilised. Therefore, an Impairment Rating cannot be assigned for this condition.
Once Mr Brady has had all reasonable treatment for his Chronic Pain and his condition has stabilised, it is open to him to make a new DSP application.
DID MR BRADY HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Brady’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether he had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
CONCLUSION
Mr Brady’s claim fails. His impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 89 (eighty - nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

....................[Sgd]....................................................
Associate
Dated: 17 October 2017

Date of hearing: 10 October 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

[2017] AATA 1729

17 October 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date of hearing:	10 October 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services