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

Burgess and Secretary, Department of Social Services (Social services second review) [2020] AATA 690 (30 March 2020)
Division:GENERAL DIVISION
File Number:2019/2460
Re:Mr Gary Burgess
APPLICANT

Secretary, Department of Social ServicesAnd
RESPONDENT

DECISION
Tribunal:Belinda Pola, Senior Member
Date:30 March 2020
Place:Brisbane

The decision under review affirmed.
............................[SGD]..........................................
Senior Member Belinda Pola
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period - 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)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133
Faulkner and Comcare [2007] AATA 1541
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Perich and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 963
Pollock v Wellington (1996) 15 WAR 1
Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370
REFERENCE MATERIAL
Australian Health Practitioner Regulation Agency (APHRA), Register of practitioners
REASONS FOR DECISION
Belinda Pola, Senior Member
26 March 2020
BACKGROUND

On 6 March 2018[1] the Applicant, Mr Gary Burgess, signed an Application for the Disability Support Pension (‘DSP’), which was received by the Department of Human Services (the ‘Department’).
[1] Exhibit 1, T6, pages 64 to 94.
On 23 April 2018[2], the Applicant was advised by the Department that their claim for the DSP was rejected. The decision to reject the Applicant’s claim for DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Department on 28 July 2018[3].
[2] Exhibit 1, T12, pages 251 and 252.
[3] Exhibit 1, T18, pages 268 to 273.
On 22 January 2019[4], the Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject the claim for the DSP. The SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP on 4 April 2019[5].
[4] Exhibit 1, T19, pages 274 and 275.
[5] Exhibit 1, T2, pages 3 to 7.
The Applicant applied to the Tribunal for a second review of this decision on 3 May 2019[6].
[6] Exhibit 1, T1, pages 1 and 2.
JURISDICTION
This is an Application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.
Given the Applicant’s claim of 6 March 2018 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal; in accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 6 March 2018.
ISSUES
The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 6 March 2018, and ending 13 weeks later on 5 June 2018[7].
[7] The Qualification Period is discussed in later paragraphs of this Decision.
For the purposes of this Application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[8].
[8] Exhibit 2, page 2 paragraph 13; and page 7, paragraphs 37 to 39.
The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:
(a)whether the Applicant’s impairments attracted 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 (‘the Determination’) within the Qualification Period; and
(b)if so, did the Applicant have a continuing inability to work?
RELEVANT LEGISLATIVE PROVISIONS
The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:
94      Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(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)    one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
…
To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.
Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.
It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.
[9] Faulkner and Comcare [2007] AATA 1541 [27].
[10] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.
Section 6 of the Determination provides that “[t]he 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”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].
[11] Section 6(1) of the Determination.
[12] Section 6(2) of the Determination.
An impairment rating may only be assigned to an impairment if[13]:
(a)the person’s condition causing the impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.
[13] Section 6(3) of the Determination.
Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[14]:
·be fully diagnosed by an appropriately qualified medical practitioner; and
·be fully treated; and
·be fully stabilised; and
·be more likely than not, in light of available evidence, to persist for more than 2 years.
[14] Section 6(4) of the Determination.
When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:
(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.
[15] Section 6(5) of the Determination.
A condition is considered fully stabilised if[16]:
(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.
[16] Section 6(6) of the Determination.
Reasonable treatment is a treatment that[17]:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
[17] Section 6(7) of the Determination.
Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.
Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.
In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.
While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.
Continuing inability to work
As previously detailed in paragraph 10 of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
A severe impairment is defined in s94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Section 94(3C) of the Act states that:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).
QUALIFICATION PERIOD
Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].
[18] Part 2, clause 4(1)(d) of the Administration Act.
For the purposes of this decision, the day which the Applicant’s claim for DSP was registered with Centrelink was 6 March 2018[19], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 5 June 2018.
[19] Exhibit 1, T6, pages 64 to 94.
This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[20].
[20] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 [31].
CONSIDERATION
The Application was heard in Brisbane on 2 March 2020, with the Applicant appearing in person, and the Respondent represented in person by Ms Lisa Palmer. The Tribunal considered oral submissions made by the Applicant and Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register (Annexure 1).
Submitted evidence relating to Mr L
The Tribunal had before it evidence submitted by the Applicant from their treating general practitioner Mr L who treated the Applicant from the period 25 February 2016 to June of 2018[21]. Evidence submitted from Mr L included a number of medical certificates, referrals, reports and letters[22].
[21] Transcript, page 20, line 45; Exhibit 1, T8, page 114 and 115.
[22] Exhibit 1 T8, pages 114 and 115, pages 140 and 141, pages 157 and 158, pages 172 to 174; Exhibit 1, T10, pages 248 and 249; Exhibit 1, T13, pages 254 to 255; Exhibit 1, T15, pages 260 to 263; and Exhibit 1, T20, pages 277 and 278.
At the hearing, the Respondent brought to the attention of the Tribunal restrictions which had been put in place on Mr L’s practice registration by the Performance and Professional Standards Panel of the Medical Practitioners Board, and his registration with the Australian Health Practitioner Regulation Agency (‘AHPRA’) was subsequently subject to a number of conditions and undertakings[23].
[23] Transcript page 4, lines 25 to 35; and page 32, lines 35 to 45.
Of note to the Tribunal are the following conditions and undertakings regarding Mr L’s registration details[24]:
[24] Exhibit 4, pages 1 to 9. References were made to the Register of Practitioners on the Australian Health Practitioner Regulation Agency website.
(1) 26 September 2013, a Performance and Professional Standards Panel reprimanded Mr L (published by AHPRA in September 2019, and February 2020).
(2) 14 April 2014, a Tribunal[25] decision was made regarding Mr L (published by AHPRA in September 2019, and February 2020).
(3) 20 January 2014, a Tribunal[26] decision was made regarding Mr L (published by AHPRA in September 2019, and February 2020).
(4) 9 May 2014, Queensland Civil and Administrative Tribunal (QCAT) imposed seven conditions on Mr L’s registration, with the key conditions stating that he must not diagnose or treat Lyme disease without obtaining a positive diagnosis from a credited laboratory, and must not treat any patient for Lyme disease with intravenous antibiotics without having referred the patient to a specialist for a written medical treatment plan. Before referring any patients to an Infectious Diseases Specialist, he must first obtain approval from the Medical Board of Australia (the ‘Board’) to refer patients to that specialist for that purpose (published by AHPRA in September 2019).
(5) As of February 2020, Mr L gave an undertaking to the Board that he would complete a program of one on one education (approved by the Board) in relation to a range of issues. The Tribunal notes the following which were included[27]:
(i)Clinical indications for pathology testing and implications of over ordering pathology investigations; and
(ii)Assessment of patients including adequate implementation of Chronic Disease Management Plans and Team Care Arrangements.
In addition, Mr L agreed to an audit of his practice, with an audit and audit report to focus on the ordering of pathology tests, and assessment of patients requiring Chronic Disease Management Plans and Team Care Arrangements[28].
[25] The reference to Tribunal in this paragraph refers to a medical Tribunal, and not the Administrative Appeals Tribunal.
[26] The reference to Tribunal in this paragraph refers to a medical Tribunal, and not the Administrative Appeals Tribunal.
[27] Exhibit 4, page 4.
[28] Exhibit 4, page 5.
The Respondent contended that the evidence provided by Mr L should be afforded little weight by the Tribunal in circumstances where Mr L has not explained how he arrived at his conclusions[29].
[29] Transcript, page 31, lines 25 to 30; and page 31, line 15.
The Respondent requested just over five months prior to the hearing that if the Applicant intended to rely on the evidence provided by Mr L in the hearing, that arrangements be made for him to be available for cross-examination. At the hearing, the Applicant advised the Respondent that this was not possible[30].
[30] Transcript, page 4, line 30.
The Tribunal refers to the reasons in Perich and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 963, where Deputy President Boyle and Senior Member Evans stated at paragraph 40:
“The Tribunal notes there is a risk that a treating medical practitioners [sic] such as Dr Jansz may be more inclined to accept self-reported symptoms of the patient than an independent assessor. The Tribunal is unable to assess whether this occurred because Dr Jansz did not provide any information or description about the process by which he examined the Applicant and did not explain how he reached the conclusion that the Applicant’s spinal function should be rated as ‘severe’ ”.
Deputy President Boyle and Senior Member Evans, then went on to state at paragraph 48 and 49[31]:
“The question remains as to which doctor’s evidence should be preferred. Although section 33(1)(c) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT ACT) provides that, “In a proceeding before the Tribunal...the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate”, the Tribunal is of the opinion that it is appropriate to apply the following principle regarding expert opinion evidence, as summarised by Anderson J in Pollock v Wellington (1996) 15 WAR 1 as follows:
Unless the process of inference by which an opinion is reached is expressed in a manner which permits the conclusions to be scrutinised and a judgment made as to its reliability, the opinion can carry no weight: see Pownall v Conlan Management Pty Ltd (1995) 12 WAR 370, esp at 390.
In conclusion, the Tribunal prefers the more comprehensive medical opinion of Dr Minogue, over that of Dr Jansz. Dr Minogue provided an extensive forensic medical analysis and gave details as to the factors he took into account in formulating his medical opinion. Accordingly, the Tribunal found the opinion of Dr Minogue to be more comprehensive and rationally based. Although Dr Jansz was the Applicant’s medical practitioner, and although he personally examined her, the Tribunal cannot assess how he formulated his opinion, or the extent (if any) to which his opinion was influenced by the self-reporting of symptoms by the Applicant. The Tribunal therefore finds that the more rationally probative evidence is that of Dr Minogue which supports a moderate impairment rating during the qualification period.”
[31] Perich and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 963.

In the present Decision, the Tribunal has adopted the principle applied by Deputy President Boyle and Senior Member Evans in Perich and Secretary, Department of Social Services (Social Services Second Review) [2018] AATA 963. Where Mr L has not provided additional information in regards to the process by which he examined the Applicant, or provided reasons as to how he arrived at the conclusions that the he had reached in regards to the Applicant’s impairments, the Tribunal has applied limited to no weight to the submitted evidence (as expressed in the paragraphs of this Decision).
Section 94(1)(a) of the Act (Physical, intellectual or psychiatric impairment)
In the medical details section of the Applicant’s claim for DSP signed on 6 March 2018, the Applicant did not list their medical conditions, and had instead written, “SEE ATTACHED DOCUMENTS”[32]. The Applicant submitted 73 documents ranging in date from 25 February 2016 through to 4 April 2018[33], which included various test results, discharge summaries from hospital visits, referrals, medical certificates, letters and medical reports.
[32] Exhibit 1, T6, page 87.
[33] Exhibit 1, T8, pages 112 to 244
In identifying the impairments the Applicant is seeking to be assessed on for their DSP claim, the Tribunal had regard to the Applicant’s letter of 17 February 2019 where the Applicant stated[34]:
[34] Exhibit 1, T20, page 281. The Tribunal notes that this letter is incomplete, as only the first page of the Applicant’s letter has been submitted to the Tribunal.
“…that I suffer from three (3) significant medical conditions:
(1) Chronic Pain – Firstly from Ankylosing spondylitis which I have received medical opinion will be lifelong with regular epidural treatments that can provide some temporary relief. I have been advised that these treatments are a “tool” to assist in my pain management and not a long period solution. Secondly I am being treated for rheumatoid and Osteoarthritis – again my medical advisors indicate that these conditions are lifelong and extremely unlikely to reduce pain. I have recently had both knees replaced but it is unlikely that my mobility will increase significantly.
(2) Chronic Diarrhea – reoccurring condition every 7 – 10 days causing significant incapacity.
3) Depression / anxiety.
…”
[sic]
42.The Tribunal is satisfied after review of the evidence before it, that the Applicant suffered impairments during the Qualification Period in terms of s94(1)(a) of the Act, a point which has been accepted by the Respondent[35]. The Tribunal finds the following impairments relevant to this Application:
[35] Exhibit 2, page 2 paragraph 13; and page 7, paragraphs 37 to 39.
(a) Sleep apnoea;
(b) Osteoarthritis (left and right knees);
(c)   Anxiety and depression;
(d) Otitis Externa, Vertigo and Sinusitis;
(e) Left wrist condition;
(f)    Spinal / back condition;
(g) Bowel / abdominal issues;
(h) Chest wall pain; and
(i)    Chronic Pain.
Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
The Tribunal will consider each impairment identified in the above paragraphs of this Decision in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination.
(a) Sleep apnoea
The Tribunal finds based on submitted evidence that the Applicant’s sleep apnoea was fully diagnosed, fully treated and fully stabilised prior to the Qualification Period in accordance with the Determination with reference to the following evidence:
(a)    A diagnostic polysomnography report by Dr Suvenesh Prasad (‘Dr Prasad), Respiratory and Sleep Physician, of 28 September 2016, with a diagnosis of, “[s]evere obstructive sleep apnea causing severe sleep-fragmentation and SpO2 desaturations (minimum SpO2 = 86%), despite only 2 minutes of sleep being REM; Snoring in all sleep-positions”[36].
(b)    A CPAP Titration Polysomnography study on 10 November 2016, where Dr Prasad stated:, “CPAP was well tolerated… A CPAP of 9cmH2O eliminated snoring and obstructive respiratory events during consolidated periods of supine REM sleep… Weight-loss may allow OSA control with a lower pressure or via a more conservative approach, and should be regarded the best long term treatment for the OSA… Consultation with one of our Sleep Physicians is recommended, with CPAP data download, given this patient’s occupation as a driver”[37].
(c)    A CPAP Script issued by Dr Prasad for the Applicant for a CPAP machine dated 24 November 2016[38].
[36] Exhibit 1, T8, pages 154 to 156.
[37] Exhibit 1, T8, pages 160 to 162.
[38] Exhibit 1, T8, page 166.
The Tribunal heard oral submissions from the Applicant that they still use the CPAP machine they had been prescribed and that this impairment was under control at the time of their claim[39].
[39] Transcript, page 13, line 5.
The relevant Table in the Determination for the Applicant’s impairment is Table 1 - Functions requiring Physical Exertion and Stamina[40]. The Tribunal notes that the Applicant submitted annotated Impairment Tables as part of their evidence. The Applicant stated to the Tribunal they had annotated the Impairment Tables based on their own view as to how they met each of the descriptors. The Applicant had annotated that for their sleep apnoea, they had met the descriptor for a severe functional impact[41].
[40] The Determination, pages 12 to 14.
[41] Exhibit 1, T8, page 228.
The Tribunal could find no corroborating medical evidence, as required by the Determination[42], to suggest the Applicant continues to suffer a functional impact on activities requiring physical exertion or stamina as a result of their sleep apnoea. In fact, the Applicant’s previous evidence to the Tribunal was that the CPAP machine which had been prescribed was being used, and largely controlled their sleep apnoea[43]. The Applicant had in fact confirmed this was still the case in oral submissions before the Tribunal at the present hearing[44].
[42] The Determination, page 12, “… self-report of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment ”.
[43] Exhibit 1, T2, page 5, paragraph 8.
[44] Transcript, page 13, line 15.
The Tribunal is of the view the Applicant’s sleep apnoea is controlled, with no corroborating medical evidence to suggest that there is an alternate functional impact. The Tribunal is satisfied the Applicant met the descriptor for no functional impact of Table 1 - Functions requiring Physical Exertion and Stamina of the Determination. Accordingly, the Tribunal assigns zero points to the Applicant.
(b) Osteoarthritis (left and right knees)
The Tribunal finds based on submitted evidence that the Applicant’s osteoarthritis of both their left and right knees was fully diagnosed prior to the Qualification Period in accordance with the Determination, with reference to the following corroborating medical evidence:
(a)    An X-Ray by Dr Robert Stowasser (‘Dr Stowasser’), Radiologist, of 7 November 2016, diagnosing: “There are marked degenerative changes in medial compartment of the right knee joint and there are moderate to marked degenerative changes in the medial compartment of the left knee joint, with joint space narrowing, associated with subarticular sclerosis and osteophytic hypertrophy of the joint margins. There are bilateral varus deformities, more pronounced on the right side”[45].
(b)    A report by Alex Vallini, Physiotherapist, of 28 April 2017, stating, “My clinical impression is consistent with the radiology findings suggesting severe medial tibiofemoral OA [Osteoarthititis], there is no doubt that [the Applicant] will require bilateral TKR [Total Knee Replacement]. [The Applicant] has been discharged from OPSC and will maintain his place in the surgical Orthopaedic list. I encouraged [the Applicant] to continue with maintenance of his daily exercises and hydrotherapy”[46]. [Tribunal insertions for clarity]
(c)    An appointment was scheduled with Dr Sharma in the Orthopaedic Surgery Clinic of The Prince Charles Hospital on 4 April 2018[47].
[45] Exhibit 1, T8, page 163.
[46] Exhibit 1, T8, pages 183 and 184.
[47] Exhibit 1, T8, page 221.
The Applicant, at the time of the Qualification Period of this claim, was subject to further orthopaedic review and subsequently underwent bilateral knee replacements. Patient correspondence from Dr Rina Kennedy (‘Dr Kennedy’) of 6 June 2019 stated the Applicant:
“has had bilateral knee replacements and is unhappy with the results, with ongoing pain and difficulty mobilising. He has been participating actively in his strengthening exercises and walks twice a day but is still having ongoing trouble. I understand he is seeing an orthopaedic surgeon who is repeating his xrays to further investigate this”[48].
[48] Exhibit 3.
The Applicant confirmed to the Tribunal that they had undergone a knee replacement for their right knee in August 2018, and a knee replacement for their left knee in February 2019[49].
[49] Transcript page 13, line 45; and page 14, line 5.
The Tribunal is of the view that in circumstances where the Applicant was subject to further treatment at the time of the Qualification Period for their DSP claim, the Applicant’s osteoarthritis (left and right knees), was not fully treated and stabilised during the Qualification Period in accordance with the Determination. Therefore, the Tribunal does not have authority to assign an Impairment Rating for the Applicant’s osteoarthritis (left and right knees).
(c) Anxiety and depression
At the hearing the Applicant submitted a report of 18 September 2019 from their current treating general practitioner Dr Kennedy which surveyed the Applicant’s mental health[50]. The Tribunal notes that this report post-dates the Qualification Period for this Application.
[50] Exhibit 3.
As previously outlined, the Applicant in their letter of 17 February 2019 stated[51]:
“…that I suffer from three (3) significant medical conditions:
… 3) Depression / anxiety.”
[51] Exhibit 1, T20, page 281. The Tribunal notes that this letter is incomplete, as only the first page of the Applicant’s letter has been submitted to the Tribunal.
The Applicant confirmed to the Tribunal that they had not seen a clinical psychologist or psychiatrist with reference to their anxiety and depression, with only Mr L having diagnosed this condition[52].
[52] Transcript page 14, lines 10 and 15.
Table 5 – Mental Health Function of the Determination[53] expressly stipulates that the diagnosis of a mental health condition (or impairment) “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)”. [emphasis added]
[53] The Determination, pages 22 to 27.
In the absence of evidence from the Applicant of a diagnosis made by a psychiatrist or evidence from a clinical psychologist prior to or during the Qualification Period for this claim, the Tribunal finds that the Applicant’s mental health condition was not fully diagnosed. Therefore, an Impairment Rating could not be assigned for the Applicant’s anxiety and depression.
(d) Otitis Externa, Vertigo and Sinusitis
The Applicant had previously advised the Tribunal that they experienced, “a recurrence of otitis externa about every six months which may need to be treated with antibiotics. [The Applicant] said he also suffers bouts of vertigo about every five weeks, which lasts around two days”[54]. [Tribunal insertions for clarity]
[54] Exhibit 1, T2, page 5, paragraph 10.
There was limited medical evidence submitted to the Tribunal for consideration which was dated prior to or during the Qualification Period, aside from a microbiological examination from a right ear swab of 22 February 2017, which stated “…Aural toilet may be predictably effective in the treatment of otitis externa involving enteric organisms. Topical otic antibiotics may assist the treatment”[55].
[55] Exhibit 1, T8, page 178.
At the hearing the Applicant submitted a report from Dr Sharon Kelly, Director of Ear Nose and Throat Surgery at the Royal Brisbane and Women’s Hospital of 8 August 2019, post-dating the Qualification Period, which states:
“… As you know, [the Applicant] had a CT scan of his sinuses last year when he was unwell. This did demonstrate some maxillary and ethmoid sinusitis. [The Applicant] does not really describe a lot of facial pressure or nasal discharge. He does not have headaches. He is a fellow with sleep apnoea who uses CPAP. I examined his nose endoscopically. His nose was clean and dry with no polyps evident. The main symptomatic issue seems to be engorgement of his inferior turbinates, which is positional. [The Applicant] is not keen on any significant surgery which is, of course, reasonable. I think we can improve his symptoms with a radiofrequency reduction of his inferior turbinates. I am also going to repeat his CT scan when he is well, to assess whether he is likely to need any more major surgery in the future. It would be good to avoid that in view of his sleep apnoea”[56]. [Tribunal insertions for clarity]
[56] Exhibit 3.
The Tribunal notes that further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[57].
[57] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 (4 July 2014) [31].
In the absence of evidence from the Applicant of a diagnosis made by an appropriately qualified medical practitioner prior to or during the Qualification Period; the Tribunal finds that the Applicant’s otitis externa, vertigo and sinusitis were not fully diagnosed. Therefore, an Impairment Rating could not be assigned.
(e) Left wrist condition
The Tribunal finds based on submitted evidence that the Applicant’s left wrist condition was fully diagnosed, prior to the Qualification Period in accordance with the Determination with reference to the following evidence:
(a) An Xray by Dr M Loff on 19 July 2016, which stated:
“The bone density and alignment are normal. There is moderate degeneration of the 1^st CMC joint with moderate loss of joint space, articular surface irregularity and small osteophytes. There is mild degeneration of the distal scaphoid joints and wrist joint. There is no focal erosion, fracture or significant soft tissue calcification”[58].
(b) A report from Dr James Gray (‘Dr Gray’), who is Registrar for Dr Mukhlesur Rahman (‘Dr Rahman’) at Metro North Service District Cabooluture Hospital, dictated on 22 November 2016 a letter which was dated 28 December 2016, stating:
“[The Applicant] has had at least three episodes of left wrist swelling that has lasted for a number of weeks and have responded to medication. His symptoms have felt different to his normal gout that he gets in his ankles, feet and knees. He denies any significant rashes or history of psoriasis but his father has skin psoriasis. He has had some early morning stiffness and difficulty using his hands but he has put this down to old age… [The Applicant] has an inflammatory arthritis and this could be due to either polyarticular gout or a sero negative inflammatory arthritis such as psoriatic arthritis… We would like to treat [the Applicant] more aggressively for his gout and start him on Sulfasalazine for his inflammatory arthritis”[59]. [Tribunal insertions for clarity]
[58] Exhibit 1, T8, page 142.
[59] Exhibit 1 T8, pages 168 and 169.
The Tribunal agrees with the Respondent’s contention that there is an absence of medical evidence regarding treatment for the Applicant’s left wrist condition in the period of December 2016 through to the Qualification Period for this Application[60]. Additionally, the Tribunal notes there is a lack of medical evidence which indicates a prognosis, or whether the condition is stabilised.
[60] Exhibit 2, page 8, paragraph 50.
The Tribunal notes that the Applicant submitted a letter dated 22 October 2018, from their treating Physiotherapist, Justin Ruthenberg, which outlines the functional impact of the Applicant’s wrist condition. The Tribunal has previously stated that further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[61]. As the letter from the Applicant’s treating Physiotherapist post-dates the Qualification Period for this claim, the Tribunal is unable to afford any weight to this evidence.
[61] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (24 December 2012) [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (22 March 2007) [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 (4 July 2014) [31].
Based on the submitted evidence, the Tribunal finds that the Applicant’s left wrist condition was fully diagnosed prior to the Qualification Period, but was not fully treated or fully stabilised in accordance with the Determination. Therefore, the Tribunal does not have the authority to assign an Impairment Rating for the Applicant’s left wrist condition.
(f) Spinal / back condition
The Tribunal notes the following submitted evidence in relation to this condition for the Applicant’s claim:
(a) A radiology report from Dr Stowasser on 6 February 2018, which states: “There are mild to moderate degenerative changes in the right T3/4 and in the right T5/6 facet joints”[62].
(b) A bone mineral densitometry scan by Dr Stowasser on 7 February 2018, which states:
“CONCLUSIONS: This study indicates low bone mass but does not meet the criteria for osteoporosis. The discrepancy in the bone density assessment from the lumbar spine compared with the femoral neck would be consistent with degenerative sclerosis in the lumbar region artefactually elevating the results from that site”[63].
(c) A report by Mr David Wong from North Lakes Radiology, of 9 February 2018, which states:
“Mild scoliosis in thoraco-lumbar spine concave to the left. Mild to moderate uptake in the spine in keeping with degree of degenerative change. Uptake in SC joints, right elbow imaged, wrists, hands, hips, knees – especially medial compartments and mid tarsi in keeping with degree of degenerative change. Opinion: Degree of degenerative change including both knees and feet. Otherwise this study does not suggest metastatic bone disease. If symptoms persist in the thoracic spine, MRI can be considered”[64].
(d) A Disability Support Pension Medical Assessment Recommendation completed on 20 April 2018, in relation to permanent conditions listed as:
“Spinal condition, Musculoskeletal issues, Inflammatory bowel”. The assessor arrived at the recommendation that there was, “Insufficient evidence to assess medical eligibility”. The assessor went on to state, “… The client is confirmed as having widespread degenerative changes as per submitted radiology reports (9/2/18)… Given the nature of the client’s musculoskeletal medical conditions, symptoms are likely to persist in some form, regardless of treatment. There is however insufficient specialist medical information available to accurately assess the current level of functional impairment, which would be necessary to assess the conditions under impairment tables” [65].
[62] Exhibit 1, T8, pages 216 and 217.
[63] Exhibit 1, T8, page 218.
[64] Exhibit 1, T8, page 220.
[65] Exhibit 1, T11, page 249 and 250.
Table 4 – Spinal Function of the Determination requires a diagnosis to be made by an appropriately qualified medical practitioner with examples of corroborating medical evidence[66]. The Tribunal is of the view there is a lack of medical evidence with regard to a diagnosis of the Applicant’s spinal/back condition.
[66] The Determination, pages 20 and 21.

The Tribunal notes a lack of medical evidence regarding a prognosis, treatment, and whether the spinal/back condition had been stabilised, prior to or during the Qualification Period for the Applicant’s claim. The Applicant submitted oral evidence that they had undergone steroid and cortisone injections to treat nerve damage, the Tribunal notes this was not corroborated with medical evidence[67].
[67] Transcript, page 17 line 45; page 18 lines 5 and 10.
The Tribunal notes that the Applicant’s submitted letter of 22 October 2018 from their treating Physiotherapist, Justin Ruthenberg, outlining the functional impact of the Applicant’s spinal/back condition. For reasons already outlined by the Tribunal, this evidence postdates the Qualification Period for the Applicant’s claim and cannot be afforded weight[68].
[68] Exhibit 1, T20, pages 279 and 280.
In the absence of a diagnosis made by an appropriately qualified medical practitioner in accordance with Table 4 – Spinal Function of the Determination prior to or during the Qualification Period, the Tribunal does not have the authority to assign an Impairment Rating for the Applicant’s spinal/back condition.
(g) Bowel/abdominal issues
The Tribunal notes the following submitted evidence in relation to the Applicant’s bowel/abdominal issues:
(a)    A radiology report by Dr Stowasser of 1 March 2016 regarding a “CT SCAN AMDOMEN & PELVIS WITH ORAL CONTRAST”[69].
[69] Exhibit 1, T8, page 116 and 117.
(b)    A radiology report by Dr Stowasser of 7 March 2016 regarding an “ULTRASOUND ABDOMEN” and “ULTRASOUND ANTERIOIR ABDOMINAL WALL”[70].
[70] Exhibit 1, T8, page 118 and 119.
(c)    A medical report from Dr Mahesh Jayanna (‘Dr Jayanna’), Consultant Gastroenterologist of 13 April 2016, which stated the following diagnosis:
“1. Fatty liver disease – secondary to obesity and alcohol excesses, 2. Chronic abdominal pain, 3. Likely OSA, 4. Hypertension, 5. Gout”. Dr Jayanna went on further to state: “[The Applicant] has fatty liver disease – likely NASH and alcoholic liver disease. His main concerns were fatigue and tiredness which could be related to his fatty liver disease and also there could be an element of obstructive sleep apnoea given his obesity and stout neck. With regards to his chronic abdominal pain and altered bowel motions, he has a functional gut disease, we need to rule out other organic causes. I have organised for him to have a colonoscopy as a Category 2. I have also given him a blood test form to complete his chronic liver disease. I have advised him to have weight loss and a high fibre diet. It is worthwhile if you could refer him to an exercise physiologist for his weight loss and also may be [sic] doing a sleep study is worthwhile to rule out obstructive sleep apnoea for his symptoms. I will review him after the procedure and keep you updated”[71].
[Tribunal insertions for clarity]
(d)    A discharge summary report following an admission to the Caboolture Hospital, dated 2 June 2016 contained a radiology report by Dr M Stebnckyj, which concluded:
“There is no evidence of colitis, diverticulitis or mechanical bowel obstruction… There is no evidence of diverticulitis. Within the inferior right mesentery within the right lower abdomen/upper right iliac fossa, there are some prominent lymph nodes, which is a non-specific finding -? reactive. No lymphadenopathy is identified elsewhere. There is a fatty infiltration of the liver. 7mm non-specific nodule within the basal right lower lobe noted”[72].
(e)    A range of test results were submitted in evidence to the Tribunal in relation to the Applicant’s blood, urine and stool samples[73].
(f)     A report from Dr Gray, who is Registrar for Dr Rahman at Metro North Service District Cabooluture Hospital, dictated on 22 November 2016 a letter which was dated 28 December 2016, which states: “We wonder whether the gastrointestinal illness and eye symptoms are related to a spondyloarthritis picture or whether they are merely coincidental. I understand he is awaiting a colonoscopy to further clarify his gastrointestinal problem” [74].
(g)    A letter from Dr Naeem Khan, Consultant Surgeon at the Metro North Hospital and Health Service at Caboolture Hospital, of 26 May 2017 stated: “Rectal examination today did not reveal any obvious mass in the anal canal or the rectum. I recommend [the Applicant] increase his fluid and fibre intake and have booked him to have a colonoscopy and gastroscopy”[75]. [Tribunal insertions for clarity]
(h)    A colonoscopy was conducted and Dr K Tran, a Pathologist, in a report of        7 June 2017, stated: “Diverticulosis in the sigmoid colon… 1. Stomach biopsy: No significant morphological abnormality. 2. Duodenum biopsy: No significant morphological abnormality. 3. Colon – descending polypectomy: Tubular adenoma”[76].
(i)     A radiology report from Dr Stowasser on 6 February 2018, which states: “Gallbladder polyp… Small cyst in the left kidney. Mild hepatomegaly. Fatty change of the liver…”[77].
[71] Exhibit 1, T8, pages 120 and 121.
[72] Exhibit 1, T8, pages 123 to 132.
[73] Exhibit 1, T8 pages 134 to 139; pages 146 to 149; page 153; and pages 195 to 215.
[74] Exhibit 1 T8, pages 168 and 169.
[75] Exhibit 1, T8, page 188.
[76] Exhibit 1, T8, page 193.
[77] Exhibit 1, T8, page 216.
The Tribunal notes the large number of medical tests the Applicant has undergone in relation to their bowel/abdominal issues from February 2016 to February 2018 as outlined in the above paragraph.
A qualified diagnosis of a “functional gut disease” was made by Dr Jayanna on 13 April 2016, however this was subject to further testing being undertaken by the Applicant in the form of a colonoscopy. A report of 7 June 2017 confirmed that a colonoscopy was undertaken, but no further opinion regarding a diagnosis was offered by Dr Jayanna. The Applicant gave evidence to the Tribunal that following the colonoscopy he was referred to a rheumatology clinic[78].
[78] Transcript page 20, lines 10 to 20.
The Tribunal heard evidence from the Applicant that they were not referred to an exercise physiologist as recommended by Dr Jayanna on 13 April 2016, with the Applicant stating that their inflammatory arthritis prevented them from partaking in physical activities[79]. The Applicant made oral submissions that they were doing their best to adhere to high fibre diet and to lose weight.
[79] Transcript page 19, line 15 to 25.
Despite the extensive medical testing which has been undertaken during this period, the Tribunal agrees with the Respondent’s contention that there is insufficient medical evidence diagnosing the cause of the Applicant’s bowel/abdominal issues[80]. Additionally, there is insufficient evidence relating to a prognosis, and whether treatment has been undertaken or if any treatment would result in functional improvement.
[80] Exhibit 2, page 12 paragraph 66.
In the absence of a diagnosis made by an appropriately qualified medical practitioner in accordance with Table 10 – Digestive and Reproductive Function of the Determination prior to or during the Qualification Period, the Tribunal does not have the authority to assign an Impairment Rating for the Applicant’s bowel/abdominal issues[81].
[81] The Determination, pages 43 to 45.
(h) Chest wall pain
The Tribunal notes that in Mr L letter of 26 April 2018, he referred to the Applicant as having, “… chest wall pain…”[82].
[82] Exhibit 1, T13, page 254.
There is very limited medical evidence submitted to the Tribunal regarding the Applicant’s chest wall pain. The Tribunal notes that Dr Stowasser conducted an echocardiogram with a report of 17 February 2017 concluding, “1. Normal LV size and systolic function. EF = 62%. 2. Normal RV size and systolic function. 3. No clinically significant valvular abnormality. 4. Dilated ascending aorta”[83].
[83] Exhibit 1, T8, page 175.
The Tribunal notes the following exchange at the hearing[84]:
Ms Palmer: The only [condition] in my mind that we’ve not covered off on is he’s referenced you having chest wall pain. Was there a condition that you were being treated for that was causing that chest wall pain? [Tribunal insertions for clarity]
Applicant: No, no, I think that was just one of the things that was going on with everything. I don’t - I don’t sort of remember that. I think they done an ECG or something.
In the absence of further medical evidence and a diagnosis made by an appropriately qualified medical practitioner in accordance with Table 1 – Functions requiring Physical Exertion and Stamina of the Determination[85] prior to or during the Qualification Period, the Tribunal does not have the authority to assign an Impairment Rating for the Applicant’s chest wall pain.
[84] Transcript, page 22, line 5.
[85] The Determination, pages 12 to 14.
(i) Chronic Pain
As previously outlined in the above paragraphs of this Decision, the Applicant specified that they suffered from chronic pain[86]. The Applicant gave evidence to the Tribunal that they had not been referred to a specialist for diagnosis of their condition, or participated in a pain management program to manage their condition[87].
[86] Exhibit 1, T20, page 281. The Tribunal notes that this letter is incomplete, as only the first page of the Applicant’s letter has been submitted to the Tribunal.
[87] Transcript, page 23 line 45; and page 24, lines 5 to 15.
Table 1 – Functions requiring Physical Exertion and Stamina of the Determination[88] requires chronic pain to be diagnosed by an appropriately qualified medical practitioner with corroborating medical evidence.
[88] The Determination, pages 12 to 14.
In the absence of further medical evidence and a diagnosis in accordance with Table 1 – Functions requiring Physical Exertion and Stamina of the Determination, prior to or during the Qualification Period, the Tribunal does not have the authority to assign an Impairment Rating for the Applicant’s chronic pain.
Summary - Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)
The Tribunal has found that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables during the Qualification Period, and therefore does not satisfy s94(1)(b) of the Act.
Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.
DECISION
The decision under review is affirmed.
I certify that the preceding 86 (eighty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Belinda Pola
………….…[SGD]….…………
Associate
Dated: 30 March 2020
Date of hearing:  2 March 2020
Applicant:  Mr Gary Burgess (in person)
Solicitor for Respondent:       Ms Lisa Palmer (in person)
  (Department)
“ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

Description

1

Section 37 T-Documents, received 4 June 2019, paged 1 to 304.

2

Respondent’s Statement of Facts, Issues and Contentions, received 17 September 2019, paged 1 to 15.

3

Applicant’s medical reports, received 2 March 2020.

4

Respondent’s tendered documents, Mr L’s APRAH registration details, received 2 March 2020.

[2020] AATA 690

30 March 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Exhibit Number		Description
1		Section 37 T-Documents, received 4 June 2019, paged 1 to 304.
2		Respondent’s Statement of Facts, Issues and Contentions, received 17 September 2019, paged 1 to 15.
3		Applicant’s medical reports, received 2 March 2020.
4		Respondent’s tendered documents, Mr L’s APRAH registration details, received 2 March 2020.