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

Broadhurst and Secretary, Department of Social Services (Social services second review) [2018] AATA 3704 (3 October 2018)
Division:GENERAL DIVISION
File Number: 2017/1133
Re:Laurence Broadhurst
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:3 October 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[sgd]......................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Refusal – Mental Health condition – Lower Limb condition – Hypertension condition – Hypercholesterolaemia condition – Respiratory Disorder condition – Right Calf Pain condition – whether impairments are of 20 points of more under the Impairment Tables – whether Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
3 October 2018
INTRODUCTION

On 4 January 2016, Mr Laurence Broadhurst (“Applicant”) applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T5, Claim for DSP, dated 4 January 2016, pages 94-124.
On 13 July 2016, the Department of Human Services (“Centrelink”) advised the Applicant that his application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T7, Rejection of DSP, dated 13 July 2016, pages 131-133.
[3] Exhibit 1, T Documents, T8, ARO Decision, dated 6 September 2016, pages 134-138.
On 18 January 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, Decision of the SSCSD, dated 18 January 2017, pages 3-9.
Following this, the Applicant sought a second tier review of his matter by the General and Other Divisions of this Tribunal, by way of an Application dated 19 February 2017.[5]
[5] Exhibit 1, T Documents, T1, Application for Review, dated 19 February 2017, pages 1-2.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have a continuing inability to work.
On 9 July 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 4 January 2016, or within 13 weeks thereafter, being up until 4 April 2016 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form he listed the following disabilities, illnesses or injuries:
“Right Lower Leg injuries, mental injuries as per Reports, Blood clots in Lungs From Leg operations, high blood pressure”.[6]
[6] Exhibit 1, T Documents, T5, Claim for DSP, dated 4 January 2016, p. 120.
On 4 July 2016, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (“JCA”), who subsequently produced a report dated 13 July 2016.[7] The JCA assessed the Applicant’s condition as follows:
(a)Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood with some minor features of Post-Traumatic Stress Disorder and substance abuse;
(b)Open fracture right distal tibia and fibula; and
(c)Blood clots.
[7] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, pages 125-130.
The total Impairment Rating recommended by the JCA for the reported conditions was

0 points.
Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as being 8-14 hours per week with a predicted capacity of 15-22 hours per week within 2 years with intervention.[8]
[8] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 129.
The ARO upon review of the JCA report and additional other relevant evidence provided to Centrelink, made the following findings of fact:
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·Your conditions psychological/psychiatric disorder, lower limb deficiencies and hypertension are not accepted as being permanent as they have not been fully treated and fully stabilised.
·Your total impairment rating is nil.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
The SSCSD found that the Applicant’s conditions did not attract any Impairment Rating points under the Impairment Tables.
Subsequently, the Applicant lodged an application for review of the SSCSD’s decision with this Tribunal on 19 February 2017.[9]
[9]Exhibit 1, T Documents, T1, Application for Review, dated 19 February 2017, pages 1-2.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 of the Act, must be met:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but becomes qualified 13 weeks following the date of claim.[10] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[11]
[10] Administration Act ss 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[11]Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work –related Impairment for Disability Support Pension) Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[12] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]
[12]        Impairment Determination, s 5(1) – (2).
[13]        Impairment Determination, s 5(2).
[14]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[15]
[15] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[16]
[16] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[17]
[17] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[18]
[18] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[19]
[19] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[20]
[20] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Mental Health, Lower Limb and Hypertension conditions and it is not in dispute that he has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[21] The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[22] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[21]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, para 23.
[22] The Act, s 94(1)(b).
The Tribunal will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Mental Health condition
The Secretary contends that the Applicant’s Mental Health condition was fully diagnosed but not fully treated or fully stabilised during the Relevant Period. Accordingly, the condition cannot be assigned an Impairment Rating under the Impairment Determination.
On 26 February 2014, the Applicant was approved for 5 sessions of adjustment to injury counselling.[23] The Tribunal was provided the records and notes from the Applicant’s appointments with Ms Tracey Howard, clinical psychologist.[24] The Applicant attended

4 psychological counselling sessions with Ms Howard.[25]
[23]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
[24]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
[25]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
Dr Jane Klug, general practitioner (“GP”), assessed the Applicant on 6 August 2015 and referred the Applicant to Ms Howard for further psychological assessment and management.[26] Dr Klug noted that, at the time of her assessment, the Applicant was presenting with:
“…significant anxiety and his OCD symptoms are still a concern to him…Laurie stopped Aropax 2 months ago as he ran out of medication – he says he feels much better off medication”.[27]
On 17 August 2015, Ms Howard stated in a file note that the Applicant required further psychiatric assessment and the Applicant was subsequently approved for 2 further treatment sessions.[28]
[26]Exhibit 2,Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: Medical Report from Dr Klug, dated 6 August 2015; letter from Ms Howard to Dr Klug dated 28 August 2015.
[27]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: Medical Report from Dr Klug, dated 6 August 2015.
[28]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
On 27 August 2015, the Applicant saw Ms Howard and reported at this session that he was not dealing well with the stress he was experiencing, that he was frustrated about not working and felt hopeless about his future.[29] Ms Howard further reported that the Applicant had stated that he would be seeing a psychiatrist on 15 September 2015[30] for an independent psychiatric assessment (“IME”) and that:
“Laurence reported that he was not currently taking any medication for his mood disturbance. He noted that he had stopped taking Aropax when he ran out of medication a few months ago and he noted that he actually felt better not taking it, stating that he felt more alert and energetic. Laurence reported that he wanted to consider other work options and re-training”.[31]
[29]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
[30]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: letter from Ms Howard to Dr Klug dated 28 August 2015; information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
[31]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
Ms Howard planned for a follow up appointment with the Applicant to assist him with managing his irritability and agitation, but noted that this would be dependent on the outcome of his further psychiatric assessment. Following his psychiatric IME, the Applicant saw Ms Howard. Ms Howard noted that the Applicant had reported to her that he had a psychological injury that was currently stable. On 23 September 2015, Ms Howard recorded that the Applicant had been referred to the Medical Assessment Tribunal.[32]
[32]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
On 10 November 2015, the Medical Assessment Tribunal diagnosed the Applicant with “Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and Substance Abuse – Cannabis and binge drinking.”[33] The Medical Assessment Tribunal noted that the Applicant displayed reduced concentration and had forgetful memory, but made note that cannabis confounds the cause of concentration and memory loss.[34]
[33]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 185.
[34]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 186.
On 4 July 2016, the Applicant reported to the JCA that he last saw a psychologist in August 2015. The JCA stated that the Applicant had indicated that no future treatment was planned and the Applicant had indicated the following:
“…[T]he client reports an improvement in symptoms since May 2015 (e.g. decrease in irritability) and there are further treatment options available (psychology, pharmacotherapy, substance abuse counselling) to further improve his psychological symptoms”.[35]
[35] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2018, page 126.
This view is not inconsistent with that of Ms Howard, who spoke with Ms Caroline Thomas at WorkCover Queensland (“WorkCover”) in September 2015, and reported that she was advised that WorkCover considered the Applicant’s condition “stable and stationary”.[36]

Ms Howard further stated that:
“I will contact Laurence to inform him of this decision and provide him with information as to other options for receiving psychological treatment.”[37]
The Tribunal finds that Ms Howard’s note from 23 September 2015, demonstrates that she was of the view that, from a WorkCover perspective, more needed to be done for the Applicant’s mental health condition.
[36]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
[37]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment A: information obtained under section 196 of the Social Security Administration Act 1999 from Ms Tracy Howard.
Although, the Applicant had reported the symptoms and functional impact of his Mental Health condition to the JCA, the Introduction to Table 5 of the Impairment Determination specifies that self-report of symptoms alone is insufficient.[38] The Medical Assessment Tribunal noted in its decision that the Applicant ceased all medication in May 2015.[39] The decision also noted that the Applicant sees his GP on a monthly basis and that the treatment he had been receiving from his psychologist, Ms Howard, had ceased.[40] Further, the Tribunal notes that the Applicant’s PBS Patient Summary indicates that the Applicant ceased taking Paroxetine on 14 May 2015.[41]
[38] Impairment Determination, Introduction to Table 5.
[39]Exhibit 1, T Documents, T12, Medical Assessment Tribunal Decision, dated 10 November 2015, p. 184.
[40]Exhibit 1, T Documents, T12, Medical Assessment Tribunal Decision, dated 10 November 2015, p. 184
[41]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, Attachment B: PBS Summary, page 5.

The Respondent provided to the Tribunal material the Applicant had produced, namely:[42]
(a)a medical report from Dr Puriri, consultant psychiatrist dated 28 November 2017;
(b)a medical report from Dr Wallace, GP, dated 6 December 2017; and
(c)
a questionnaire completed by the Applicant’s son, Tyler Broadhurst, dated

6 December 2017.
[42]Exhibit 3, Documentation provided under section 38AA of the Administrative Appeals Tribunal Act 1975, dated 12 January 2018.
Although the two medical reports note that the Applicant’s mental health condition is unlikely to improve, this material was produced outside the relevant period. Further, the questionnaire that the Applicant’s son completed is corroborating evidence of the Applicant’s impairment, however, in order to consider this material further, the Tribunal would need to consider that it is referrable to the Relevant Period and also be satisfied that the Applicant’s condition is fully treated and fully stabilised.
The Secretary contends that, following the finding of the SSCSD, that in the absence of any management of the Applicant’s cannabis use, the Applicant’s Mental Health condition cannot be considered fully treated or fully stabilised “given the hindrance on the effectiveness of any treatment and the overlap in symptomology”.[43] The Tribunal agrees with the contention of the Secretary as there is no evidence of intervention during the Relevant Period.
[43]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, para 36.
The Tribunal is satisfied that the Applicant’s Mental Health condition was fully diagnosed by the Medical Assessment Tribunal. The Tribunal notes that the Medical Assessment Tribunal was constituted by 3 psychiatrists and finds that, considering the combined expertise of the decision-makers, there is no reason to depart from the diagnosis made. However, the Tribunal is not satisfied that the Applicant’s mental health condition is fully treated or fully stabilised. The Tribunal relies on the findings of the Medical Assessment Tribunal, combined with the Applicant’s PBS summary that shows that the Applicant ceased taking medication for his condition in May 2015. Further the Medical Assessment Tribunal noted in its decision that the Applicant stopped seeing his psychologist and this information is consistent with what the Applicant reported to the JCA. Based on the Applicant’s self-reporting to the JCA and the findings of the Medical Assessment Tribunal, the Tribunal cannot be satisfied that the condition is fully treated or fully stabilised. Therefore, the condition cannot be assigned an Impairment Rating under the Impairment Determination.
Lower Limb condition
The Secretary contends that the Applicant’s Lower Limb Condition was fully diagnosed but was not fully treated or fully stabilised during the relevant period. The Secretary further contends that the condition cannot be assigned an Impairment Rating under the Impairment Determination.
On 21 July 2015, Dr Hugh English, orthopaedic surgeon, examined the Applicant for the purpose of assessing the Applicant’s degree of permanent impairment for a workers’ compensation claim.[44] Dr English diagnosed the Applicant with an “Open fracture right distal tibia and fibula”.[45]
[44]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, pages 176 – 181.
[45]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 179.
Dr English provided details of the Applicant’s injury and opined that the Applicant had suffered an open fracture of his right tibia and fibula when he fell from his motor scooter on his way home from work in 2013 while avoiding a car which had cut him off in traffic. The injury was treated surgically with the fibula being plated, pinning of the fractures and the tibia being externally fixed. The fractures to the first and fifth metatarsals were also pinned. On 18 November 2014, the Applicant had a delayed union of the fibular with fracture of the fibular plate and underwent bone grafting and revision fixation.[46]
[46]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 178.
Dr English, when preparing the permanent impairment assessment report, had consideration for medical reports prepared by Dr Rohan Brunello.[47] Although the Tribunal has not had the benefit of seeing the reports by Dr Brunello, Dr English has incorporated them into his report. Dr English noted the following:
“He was last reviewed by Dr Brunello on 13 June 2015. No further follow up was arranged. He was told that his condition now was as good as it would get.”[48]
Dr English stated in his report that both the history obtained from the Applicant and the Applicant’s presentation were consistent with prior medical reports.[49] Dr English found that the Applicant’s “Total Degree of Permanent Impairment is 16%”.[50]
[47]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 178.
[48]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 178.
[49]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 179.
[50]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 181.
The material provided to the Tribunal relating to the Applicant’s Lower Limb condition in the Relevant Period is somewhat limited to the report of Dr English and the findings of the JCA.
The Secretary seeks to rely on the progress notes of Dr Stephen Tucker, GP, for the dates 18 and 27 July 2016, and a medical certificate from Dr Shaheed Kamil Moideen, GP, dated 16 February 2017. The Tribunal notes that this material falls outside the Relevant Period.
On 18 July 2016, Dr Tucker, noted that the Applicant required a review with an occupational therapist (“OT”), a CTPA and, following the CTPA, that the Applicant should be reviewed and possibly referred to a chronic pain clinic.[51] On 27 July 2016, Dr Tucker reviewed the CTPA results and the Applicant’s pain management. Dr Tucker noted the following:
“Plan:
for referral to podiatrist
refer to chronic pain management unit – RBWH for assess ment”.[52]
(sic)
[51]Exhibit 1, T Documents, T17, Integrated Progress Notes from Moreton Aboriginal and Torres Strait Islander Community Health Centre, p. 194.
[52]Exhibit 1, T Documents, T17, Integrated Progress Notes from Moreton Aboriginal and Torres Strait Islander Community Health Centre, p. 195
On 16 February 2017, the Applicant saw Dr Moideen, GP, who stated on a medical certificate that the Applicant had planned treatment to see a physiotherapist and to attend a pain clinic.[53] The Tribunal notes that Dr Moideen also listed on a verification of medical conditions form dated 13 January 2017, that the Applicant planned to see a pain specialist.[54]
[53]Exhibit 1, T Documents, T16, Centrelink Medical Certificate completed by Dr Moideen, dated 16 February 2017, p. 193.
[54]Exhibit 1, T Documents, T15, Verification of Medical Conditions Form completed by Dr Moideen, dated 13 January 2017, p. 192.
Although Dr English did not report that there was continuing or planned treatment in the next 2 years[55] and Dr Brunello was of the view that the condition was as good as it would get. The Applicant reported to the JCA on 4 July 2016, that:
“…he has not participated in a pain management program. Client reports a worsening of his condition since 10/11/15 (walking and standing tolerances reduced) and is likely to benefit from further pain management interventions (e.g. pain management program, psychology, substance abuse counselling, specialist review) to improve the client’s functioning.”[56]
[55] Impairment Determination s 6(5)(c).
[56]Exhibit 1, T Documents, T17, Integrated Progress Notes from Moreton Aboriginal and Torres Strait Islander Community Health Centre, p. 127
The Act requires the decision to be resolved on the facts as they existed at a specific date, namely, the Relevant Period. Deputy President Handley in the matter of Fanning and Secretary, Department of Social Services (2014) 144 ALD 133 discussed the notion of reasonable treatment and stated that:[57]
“The language in cl 6(5) and (6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the tribunal is whether ‘any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’. While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the tribunal’s decision”.
[57] Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, at [33].
In the matter of Gallacher v Secretary, Department of Social Services [2015] FCA 1123, the Federal Court discussed an Applicant’s entitlement to DSP, with specific reference to the application of section 94 of the Act. There is a requirement to assess the Applicant during the Relevant Period, unless material outside of this period can be considered referable to the period.[58]
[58] Bobera and Secretary, Department of Families, Housing, Community Services and
Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Based on the material before the Tribunal, the Tribunal has formed the view that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period.
Functional Impact
The Table that relates to the Applicant’s Lower Limb condition is Table 3. The Introduction to Table 3 states that:
“Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet”.[59]
[59] Impairment Determination, Introduction to Table 3.
The Rules for applying the Impairment Tables emphasise that the tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[60]
[60] Impairment Determination, s 6(2).
As discussed previously, Dr English had prepared a report on 21 July 2015 and indicated that the Applicant’s Lower Limb condition was “stable and stationary” and found that the history and presentation of the Applicant’s condition was consistent with Dr Brunello’s reports and stated the following:
“He can walk approximately 1km and is predominantly limited by right lower limb pain. He was last reviewed by Dr Brunello on 13 June 2015. No further follow up was arranged. He was told that his condition now was as good as it would get… he reports ongoing pain in the right lower limb from the knee downwards, particularly around the right ankle region. He walks with a walking stick when out of the house. Symptoms have not changed significantly for the last three months…He has a stiff ankle…He has a full range of motion of his right knee. He has areas of paraesthesia in the region of the scars but no dermatomal or cutaneous nerve sensory loss.”[61]
[61]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, pages 176 – 181.
On 10 November 2015, the Medical Assessment Tribunal reported that the Applicant presented with a walking stick and noted the following:
“…walks up to three kilometres per day over two trips in order to build his strength. His sleep remains disturbed by pain and he sleeps for five to six hours. His physical injuries restricts his ability to drive and use of public transport”.[62]
[62]Exhibit 1, T Documents, T12, Medical Assessment Tribunal Decision, dated 10 November 2015, p. 184.
The information before the Medical Assessment Tribunal was similar to that given by the JCA and was cited by the JCA as being from a report from Dr Apel dated 10 November 2015.
On 13 July 2016, the Applicant reported to the JCA the following:
“Symptoms/Functional impact: can walk approximately 1 km and is predominantly limited by right lower limb pain, antalgic gait with absence of third rocker, uses walking stick in right hand, 1cm wasting of right lower limb in comparison with left, stiff right ankle with 10 degrees dorsiflexion, 20 degrees plantar flexion,

20 degrees inversion and 10 degrees eversion, full range of motion of right knee”.
The JCA reported, based off a medical report by Dr Apel, dated 10 November 2015, that the Applicant spends his days at the shops, playing pool, watching TV and completing household chores when it is possible.[63] The Applicant stated that his current functional impact could be described in the following way:
“…walking is reduced to 1km…and he can no longer play pool due to leg pain, can stand and walk around for 10 minutes, able to cook meals, son performs vacuuming…grocery shops with son…able to walk in and around supermarket with stick, able to climb stairs with use of handrails…avoids heavy lifting…Son assists with transfers in and out of shower when leg pain is exacerbated 3-4 times per month…independent in toileting and dressing.”[64]
[63] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 127.
[64] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 127.
The Secretary has noted that if the Tribunal finds the condition was fully treated and fully stabilised during the relevant period that a rating of no more than 5 points under Table

3 of the Impairment Determination would be appropriate.[65] The Applicant contended at Hearing that the appropriate rating for his Lower Limb condition was 10 points under the Impairment Determination.
[65]Exhibit 2, Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, para 44.
In order for the Applicant to be assigned an Impairment Rating of 5 points under Table

3 of the Impairment Determination, the Applicant would need to satisfy the following:
1At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
2At least one of the following applies:
(a)the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
In order for the Applicant to be assigned an Impairment Rating of 10 points under Table

3 of the Impairment Determination, the Applicant would need to satisfy the following:
1At least one of the following applies:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than 5 minutes; and
2 The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
3This impairment rating level includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
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.
In the Relevant Period, the Applicant was able to stand and walk around for 10 minutes, walk around a shopping centre with a walking stick, climb stairs using a handrail and was observed to use a walking stick to mobilise. There is no corroborating medical evidence to support a finding that the Applicant attracts a rating of more than 5 points under Table

3 for his Lower Limb condition.
Therefore, I assign the Applicant’s Lower Limb condition an Impairment Rating of 5 points under Table 2 of the Impairment Determination.
Other Conditions
The Applicant had discussed with the JCA, and reference is also made in the medical evidence to, Hypertension, Hypercholesterolaemia, Blood Clots, Right Calf Pain and Substance Abuse (Cannabis and Alcohol) conditions, but the Applicant did not list all of these conditions on his DSP application.
The Secretary appropriately acknowledges that these other conditions are mentioned at various times in the medical evidence.[66] The Secretary contends that these conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Accordingly, the Secretary submits that the conditions cannot be assigned an Impairment Rating under the Impairment Determination
[66]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 10 January 2018, para 46.
The Tribunal will deal with these conditions separately.
Hypertension condition
On 4 July 2016, the Applicant reported to the JCA that his Hypertension was controlled with medication.[67] At the Hearing, the Applicant did not advance any further evidence regarding this condition. On 10 November 2015, the Medical Assessment Tribunal noted that the Applicant had recommenced blood pressure treatment.[68]
[67] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 127.
[68]Exhibit 1, T Documents, T12, Medical Assessment Tribunal Decision, dated 10 November 2015, p. 184.
Based on the insufficient corroborating medical evidence before the Tribunal, the Tribunal is unable to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
Hypercholesterolaemia
On 13 January 2017, Dr Moideen noted that the Applicant suffers from Hypercholesterolaemia and Hypertension conditions.[69] However, there is insufficient corroborating medical evidence produced during the Relevant Period to determine whether the condition was fully treated and fully stabilised. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
[69]Exhibit 1, T Documents, T15, Verification of Medical Conditions Form completed by Dr Moideen, dated 13 January 2017, p. 192.
Respiratory Disorder – Blood Clots condition
On 4 July 2016, the Applicant reported to the JCA that he had been diagnosed as having blood clots on his lungs and further reported that the condition was having no impact on his current functioning.[70]
[70] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 127.
Based on the insufficient corroborating medical evidence before the Tribunal, the Tribunal is unable to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
Right Calf Pain condition

On 19 February 2016, the Applicant presented to the Emergency Department at the Prince Charles Hospital and was diagnosed with “LOWER LEG SPRAIN/STRAIN”.[71] The discharge letter noted that the plan for the Applicant was to follow-up with his GP if the pain does not settle and to discuss medications available for neuropathic pain in the right lower leg.[72]
[71]Exhibit 1, T Documents, T13, Discharge letter from Prince Charles Hospital Emergency Department, dated 19 February 2016, pages 188 – 190.
[72]Exhibit 1, T Documents, T13, Discharge letter from Prince Charles Hospital Emergency Department, dated 19 February 2016, pages 188 – 190.
There is insufficient corroborating medical evidence before the Tribunal relating to the Applicant’s Right Calf Pain condition and the Tribunal is unable to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
Substance Abuse (Cannabis and Alcohol) condition
On 4 July 2016, the JCA reported that the Applicant had applied for a medical marijuana license and would benefit from pain management interventions as an alternative to cannabis use:
“Dr Apel (10/11/15) indicates illicit substance use twice daily for pain control”.[73]
[73] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 126.
The Applicant also reported to the JCA that previously he would engage in binge drinking behaviours but, at the time of the report, had drunk 4 beers for that year and had “ongoing illicit substance use”.[74]
[74] Exhibit 1, T Documents, T6, JCA Report, dated 13 July 2016, p. 126.
At Hearing, the Applicant stated that he had disclosed his cannabis use for the purpose of being honest and reported that he had ceased smoking marijuana once the Medical Assessment Tribunal noted the effect it was having on him.
On 21 July 2015, the Medical Assessment Tribunal reported the following when commenting on the Applicant’s past medical history:
“Taking no analgesia but has currently applied for a medical marijuana licence. Currently smokes 30 cigarettes per day and drinks three to four stubbies per week.”[75]
When the Medical Assessment Tribunal made its clinical evaluation and findings it stated that the Applicant:
“…continues to smoke Cannabis twice per day to assist with pain control. He has abstained from alcohol for the past two weeks, but has a past history of binge drinking every two to three weeks, consisting of approximately 20 standard drinks at a time. He now smokes up to 40 cigarettes per day, but plans to cease with the use of patches. This proposed control of his smoking has been precipitated by a lung condition which is currently under investigation.”[76]
[75]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, pages 176 – 181.
[76]Exhibit 1, T Documents, T11, Degree of Permanent Impairment Assessment Report completed by Dr English, dated 21 July 2015, p. 184.
Regarding the Applicant’s substance abuse conditions, being the Applicant’s use of alcohol and cannabis, there is no corroborating medical evidence before the Tribunal that details specific treatment or intervention regarding the Applicant’s condition during the Relevant Period. Consequently, the Tribunal is unable to assign an Impairment Rating to this condition.
CONCLUSION
On the basis of the evidence before me, I find the following:
(a)I am satisfied that the Applicant’s Mental Health condition was fully diagnosed, but not fully treated or fully stabilised during the Relevant Period;
(b)I am satisfied that the Applicant’s Lower Limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, I have assigned the Applicant’s Lower Limb condition an Impairment Rating of 5 points under Table 3 of the Impairment Determination; and
(c)I am not satisfied that the Applicant’s other conditions were fully treated and fully stabilised during the Relevant Period.
As the Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act. Therefore, he does not qualify for DSP via this application. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION
For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 85 (eighty- five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

..............................[sgd]......................................
Associate
Dated: 3 October 2018

Date of hearing: 9 July 2018

Applicant: By Telephone

Advocate for the Respondent: Mr Jake Kyranis

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 3704

3 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Statutory Construction

Date of hearing:	9 July 2018
Applicant:	By Telephone
Advocate for the Respondent:	Mr Jake Kyranis
Solicitors for the Respondent:	Sparke Helmore