Busch and Secretary, Department of Social Services (Social services second review) - [2022] AATA 2355

Busch and Secretary, Department of Social Services (Social services second review) [2022] AATA 2355 (26 July 2022)
Division:GENERAL DIVISION
File Number:2021/8615
Re:Stephen Busch
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:26 July 2022
Place:Brisbane

The decision under review is affirmed.
..................[SGD].......................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500
Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846
REASONS FOR DECISION
Member D Mitchell
26 July 2022
INTRODUCTION

Mr Stephen Busch (the Applicant) lodged a claim for the Disability Support Pension (DSP) on 12 February 2021 in relation to a neck condition.[1]
[1] Exhibit 1, T Documents, T22, pages 88-118, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 18 March 2021[2] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[2] Exhibit 1, T Documents, T30, pages 152-153, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and, on 10 September 2021, an Authorised Review Officer (ARO) affirmed the decision.[3] The ARO found that the Applicant’s neck condition was fully diagnosed, fully treated and fully stabilised and assigned the Applicant an impairment rating of 5 points under Table 4 of the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T34, pages 158-162, Authorised Review Officer Decision and Notes.
[4] Exhibit 1, T Documents, T34, page 159, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 29 October 2021, the SSCSD affirmed the decision to refuse his claim for DSP.[5] The SSCSD found that the Applicant’s neck condition was not fully treated and fully stabilised and could not be assigned an impairment rating.[6]
[5] Exhibit 1, T Documents, T2, pages 5-13, Decision of the SSCSD.
[6] Exhibit 1, T Documents, T2, page 12, Decision of the SSCSD
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 15 November 2021.[7]
[7] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.
On 13 July 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application.
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[8]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[9] and
3.does the Applicant have a continuing inability to work?[10]
[8]     Section 94(1)(a) of the Act.
[9]     Section 94(1)(b) of the Act.
[10]    Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[11]
[11] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[12] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[12] Sections 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered 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 planned in the next two years.[13]
[13] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[14]
(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.
[14] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[15]
[15] Section 6(7) of the Determination.
The Impairment Tables 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.[16] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[17]
[16] Section 6(2) of the Determination.
[17] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or 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 POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[18]
[18] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP and, therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for DSP is the date the person becomes qualified.[19]
[19] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[20]
[20] 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] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 12 February 2021, being the date the Applicant lodged his claim for DSP and ended 13 weeks later on 14 May 2021. The Tribunal is, therefore, limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and, therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[21] The Respondent considers the Applicant’s impairments, for the purposes of the claim for DSP in question, consist of cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury (neck condition),[22] headaches[23] and disequilibrium[24] conditions (collectively, the Applicant’s conditions).
[21]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 38.
[22]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-9, paragraphs 39-53.
[23]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 9, paragraph 59.
[24]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 56-58.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
2.did the Applicant have a continuing inability to work?
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 4 of the Impairment Tables deals with functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck and relevantly provides as follows:[25]
[25] Impairment Table 4 – Spinal Function, Part 3 of the Determination.
Table 4 – Spinal Function

Introduction to Table 4

·   Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

·   The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·   Self-report of symptoms alone is insufficient.

·   There must be corroborating evidence of the person’s impairment.

·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

a report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

·   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

…….

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

PARTIES CONTENTIONS

The Applicant was involved in a motor vehicle accident in March 2014 of which he contends resulted in him sustaining a neck injury. The Applicant has been engaged in legal proceedings as a result of the accident.
Consequently, there are a number of medical reports before the Tribunal in this matter from different specialists, most of whom provided independent medical examination (IME) reports in relation to those legal proceedings.
The Applicant disputes the contents of the IME reports on the basis that the specialists did not review the images of the scans but rather relied on the reports provided by the radiologists and did not, in his view, perform adequate physical examinations of him. The Applicant told the Tribunal that in his view, the reports were therefore based on opinions and beliefs, not on facts.
To that extent the Applicant sought to have those images admitted into evidence at the Hearing as his view was that the Tribunal should send those images as well as the reports to an independent doctor for review. The Tribunal explained that it would not be sourcing any such report but rather is tasked with making a decision based on the information put before it. As such, the Tribunal has determined that the Applicant’s scan and x-ray images are not relevant to the matter before it, in circumstances where the associated reports have been admitted into evidence. Consequently, the scan and x-ray images have not been admitted into evidence and have not been considered by the Tribunal.
The Applicant also sought to admit into evidence a recording he made at an IME appointment. The Applicant told the Tribunal that the recording was relevant as it shows that the specialist had not reviewed the imaging directly and had not properly examined him. Whilst the Tribunal is not constrained by the rules of evidence, relevance of material must be considered when determining what should be admitted into evidence before it. Having considered the IME report which has been admitted into evidence by the Tribunal, the Tribunal considers that the report itself establishes the points the Applicant is seeking to make. It is clear from the IME reports from the particular specialist that the imaging was not directly reviewed and the examination of the Applicant is outlined. As such, in circumstances where the Applicant has not called the specialist to give evidence, the Tribunal considers the recording to have limited relevance. Consequently, the IME appointment recording has not been admitted into evidence and has not been considered by the Tribunal.
As a result of the medical evidence, the Respondent contended in their written submission filed before the Hearing that in the Relevant Period, the Applicant’s neck condition was fully diagnosed as cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury.[26] The Respondent relied on the following evidence:[27]
a.Medical Imaging reports dated 29 October 2014 (T4, 38), 1 November 2019 (T15, 80), 10 December 2020 (T21, 86-87), 22 February 2021 (T27, 132).
b.A medical report of Dr John Pentis (Orthopaedic Surgeon) dated 5 May 17 opined that Mr Busch sustained soft tissue injuries to the cervical spine region (T7, 47), this was reiterated by Dr Pentis in further report dated 10 March 2021 wherein he stated that the Applicant sustained an injury which affected his musculature of the posterior cervical region (T28, 139).
c.A medical report of Dr Francis Tomlinson (Neurosurgeon) dated 14 April 2021 opined the Applicant suffered from late whiplash syndrome (ST4, 9).
d.A medical report of Dr Habibullah Khursandi (Orthopaedic Surgeon) dated 19 May 2021 which opines that the Applicant had chronic neck pain due to aggravation of pre-existing degeneration of the cervical spine as a result of musculoligamentous sprain sustained in the accident of 10 March 2014 with no associated radiculopathy of his upper or lower extremities (ST5, 17).
e. The opinion of the Agency’s HPAU dated 10 May 2022 which agreed with the diagnosis of cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature (ST9, 45).
[26] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 40.
[27] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 40.
The Respondent further contended that the Applicant’s neck condition was fully treated and fully stabilised in the Relevant Period.[28] The Respondent relied on the following evidence:[29]
a.The report of Dr Pentis dated 5 May 2017 wherein the Applicant is recommended to do gentle exercises, avoid activities and lifting which may aggravate the condition, analgesia and massage therapy if required, and continued use of heat application (T7, 48).
b.The report of Dr Pentis dated 10 March 2021 which noted it might be best for the Applicant to manage his condition conservatively and to use analgesics as required. Dr Pentis also noted that surgery was unlikely and that injections would not be of great benefit. Dr Pentis further noted that the Applicant’s condition was stable (T28, 139-140).
c.The medical report of Dr Tomlinson dated 14 April 2021 commented that the Applicant was stable (ST4, 9).
d.The report of Dr Khursandi dated 19 May 2021 which recommended continuation of self-prescribed analgesia and use of hotpacks as well as home-based exercises and stretching of the neck. Dr Khursandi also noted that surgical intervention was not warranted.
e.The opinion of the Agency’s Health Professional Advisory Unit dated 10 May 2022 which found the Applicant’s condition was fully treated and stabilised (ST9, 46-47).
[28] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 41.
[29] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 41.
The Respondent contended that the Applicant’s neck condition could be assigned 10 points on Table 4 of the Impairment Tables.[30]
[30] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 42-53.

The Applicant told the Tribunal that he has no break from the aching in his neck and it affects his sleep to the point that he needs to take sleeping tablets.
The Applicant made it clear at the Hearing that he did not agree with the diagnosis of his neck condition as being cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury. The Applicant told the Tribunal that in his opinion, there was no evidence of his neck condition being a degenerative condition as the 2009 MRI scan showed only a mild change, the 2014 scan showed that he had bone spurs that were rubbing, the 2019 scan showed bone on bone and the 2020 scan stated that nerve root encroachment may occur.
The Applicant drew the Tribunal’s attention to a report of Dr John Pentis, orthopaedic surgeon dated 10 March 2021 where he provided the following:[31]
8. Detail any surgery that may be of benefit in relation to each injury and the expected cost of the surgery.
Surgery currently seems to be of no benefit but in the long term if [the Applicant] does show signs of nerve root entrapment then he may require a discectomy. Costings for a discectomy would be int eh vicinity of $30,000 all up with a recovery period of one year.
[31] Exhibit 1, T Documents, T28, page 143, IME Report of Dr John Pentis.
The Tribunal notes that in a report dated 5 May 2017, Dr Pentis had diagnosed the Applicant’s injury as a result of the 2014 motor vehicle accident as being “soft tissue musculo-ligamentous and aggravation of pre-existing problems in the cervicothoracic, cervicoscapular, occipital regions of the spine.”[32]
[32] Exhibit 1, T Documents, T7, pages 43-52, IME Report of Dr John Pentis.
The Applicant told the Tribunal that he did not understand how Dr Pentis could be saying that soft muscle damage did not have any effects on the nerve system.
The Applicant was very open and honest with his view of his condition and told the Tribunal that he considers that his neck condition was a bone structure injury. He said that the motor vehicle accident resulted in bone structure damage, he knows his body and he believes that soft tissue damage does not take 8 years to heal. The Applicant told the Tribunal he played sport for 37 years and had lots of soft tissue injuries that all healed.
The Applicant told the Tribunal that he considers his condition to have been diagnosed in the MRI report dated 10 December 2020. The Tribunal notes that the report provided by
Dr Jan Labuscagne, radiologist outlined the following overall conclusion:[33]
Spondylotic changes with discogenic disease and facet joint arthrosis demonstrated. Exit foraminal narrowing at the C3-4 and C4-5 levels as described must be correlated with the clinical levels. Nerve root encroachment may take place at these levels.
[33] Exhibit 1, T Documents, T21, pages 86-87, MRI Cervical Spine Report.
When asked if he considered his neck condition to be fully treated and fully stabilised, the Applicant said he did not know. However, what he does know is that it has gotten worse. The Applicant told the Tribunal that on 12 October 2021, he was referred to Dr Eric Guazzo, neurosurgeon at the North QLD Neurosurgery & Spinal Surgery in relation to his cervical spine pain.[34]
[34] See Exhibit 1, T Documents, T39, pages 175-176, Referral from Dr Claire Poolman, general practitioner.
The Applicant told the Tribunal that he has been advised that he is booked in for an operation on his cervical spine in mid-October 2022 at the Townsville hospital. He told the Tribunal that he expects to have an appointment a couple of weeks ahead of the surgery with Dr Guazzo to undergo a CT scan and to discuss the type of operation he will receive. The Applicant told the Tribunal that the surgery could either pin the discs together or put a new disc in. The Applicant told the Tribunal that he prefers the latter so that he will hopefully regain full movement. The Applicant told the Tribunal that he should have had surgery in 2016 after Dr Cornel Spies had said he had bone spurs.
The Applicant told the Tribunal that he believes his bone spurs are getting worse and his disc bulges are putting pressure on his nerves. The Applicant said that he has bone on bone and bone spurs which are growing and when he aggravates his neck, the layer between the discs break and make his pain worse which leads to terrible headaches.
In relation to how his neck condition affects his ability to function, the Applicant told the Tribunal:
·      His headaches have settled down since he finished work because his neck is not getting aggravated as often.
·      He has almost had accidents while driving as it is difficult to look left and right turning his head. He has now worked out a way to shift his whole body.
·      He has trouble putting on shirts over his head if it gets stuck on his shoulders.
·      He has systems in place to be able to do things. For example, he does the vacuuming on his knees as it is more comfortable for him with his neck pushing down on his chest.
·      He can perform overhead activities like washing his hair and hanging clothes on the line, he just has to be careful as to how he does it.
·      He can turn his head and bend his neck without moving his trunk however his range of movement and pain are getting worse.
·      He can drive for 8-10 hours however requires regular stops and pushes his head into the head rest to take the pressure off his neck.
·      He can sit for 30 minutes or more but fidgets a lot.
·      He spends most days in and out of bed, lying down to relieve the pressure off his neck.
·      He does what he has to do to suit his body. For example, he has 3 pillows that he puts at particular angles.
When asked whether he thought he could work 15 hours a week, the Applicant said he thought he could. However, it would depend on who would hire him. The Applicant expressed concern about what would happen if he slipped over and hurt his neck again and that he thought no one would want to legally employ him given his medical condition. The Applicant told the Tribunal he has to think about himself and the consequences if he gets hurt again.
On cross-examination, the Applicant told the Tribunal:
·      He was presently in Mackay helping to look after a friend who recently had surgery.
·      He drove himself from Townsville to Mackay with lots of breaks and by taking the pressure of the weight of his head off his neck by pushing it into the head rest.
·      He had no difficulty packing a bag to take away and was able to, without difficulty, pick it up and put it into the car and take it out of the car with no difficulty.
·      When he has a really bad headache, it can last for 1-2 days and he treats this with rest and Panadol or Nurofen. He generally feels unwell and stays in bed.
·      He does not need help from his daughter, he wants to be as independent as possible and after 8 years he has learnt the best way to handle his condition.
·      He does go swimming as it is good exercise for him and there is no pressure anywhere when he is in the pool. He dog paddles and floats and stays in the pool around 20 minutes at a time.
·      He agrees with Dr Jonathan’s report that he can walk for 30 minutes.
·      His constant underlying pain makes it difficult for him to sleep and when he does not take sleeping tablets, he only sleeps between 3 and 4 hours a night. He does not like taking tablets all the time so he does not take a sleeping tablet every night.
·      He gets fatigued when he only sleeps 3 to 4 hours a night and takes naps through the day to rest his eyes.
Having heard the Applicant’s evidence, the Respondent told the Tribunal it continued to rely on its previous submissions and further submitted that if the Applicant’s concerns regarding the diagnosis of his neck condition is accepted, a question arises regarding whether the condition is fully diagnosed, fully treated or fully stabilised during the Relevant Period. The Respondent contended that if the Applicant’s neck pain was always a result of bone on bone, then it was not fully treated and stabilised as surgery was not considered until after the Relevant Period. As such, no impairment points can be assigned to the condition.
The Respondent submitted that it is not clear if Dr Guazzo has subsequently diagnosed the Applicant with nerve impingement, however, contended it seems likely as surgery is booked for October.
The Respondent contended that the diagnosis of cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury was correct during the Relevant Period for the following reasons outlined by the Health Professional Advisory Unit (HPAU):[35]
The most consistent clinical diagnosis appears to be that of cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature, without any radiculopathy or nerve root compression. I therefore consider that a cervical spine condition was fully diagnosed, as of the qualification period. The 24/2/21, 14/3/21 and 19/5/21 medicolegal reports all indicate that neurological examination of Mr Busch’s upper extremities was normal. However, a 31/10/19 cervical spine CT showed intraforaminal compromise of the exiting left C4 and right C5 nerve roots. A 10/12/20 MRI of the cervical spine showed: Spondylotic changes with discogenic disease and facet joint arthrosis with desiccation of all discs; dorsal curvature convex to the left; mild disc bulging at C3/4 and a left posterolateral disc osteophyte complex giving rise to early foraminal narrowing- nerve root encroachment may take place; and right posterolateral disc osteophyte complex at C4/5 giving rise to foraminal narrowing- nerve root encroachment may take place. However, this report also indicated that the MRI result must be correlated with clinical levels. Given that the clinical examinations did not confirm a diagnosis of radiculopathy, despite the possible nerve root compromise/encroachment shown in the 31/10/19 CT and 10/12/20 MRI, I consider that an additional diagnosis of cervical radiculopathy was not confirmed, as of the qualification period. It seems that Dr Pentis, Dr Tomlinson and Dr Khursandi did not sight these imaging reports, but I do not believe that this alters my opinion about a diagnosis of cervical radiculopathy. Royal Australian College of General Practitioner (RACGP) guidelines for cervical spine MRI referrals1 indicates that “Imaging studies often report findings that may have little to do with neck pain – incidental degenerative changes of the cervical spine may occur in 30–40% of asymptomatic young and middle-aged patients … incidental findings would be expected to increase with age” i.e. MRI and CT findings are not always of clinical significance.
[35] Exhibit 2, Supplementary T Documents, ST18, pages 120-121, Report of HPAU.
Throughout the documents before the Tribunal, there were also references to a lower back condition, headaches, tingling/numbness in the fingers, disequilibrium and depression. When asked whether or not the Applicant sought to have those conditions considered as part of his present DSP application, he told the Tribunal that:
·      He has no concerns with his lower back.
·      His headaches are from his neck but they have settled down since he stopped work.
·      The tingling/numbness in his fingers is due to nerve root pressure and he hopes that the operation will fix this issue. The tingling/numbness does not stop him from doing anything, it just makes him a bit clumsy.
·      His balance was not what it used to be, but his disequilibrium does not stop him from doing anything, it just makes him clumsy. He considers this is caused by nerve root pressure.
·      When you have a neck or back condition that leads to you having to give up everything you loved to do then there are mental struggles. He never wanted to have to go to Centrelink and seek help. He has had to come to terms with his condition because he refuses to take drugs. He saw a psychiatrist once earlier this year.
The Respondent contended that the Applicant’s disequilibrium and headache conditions were not fully diagnosed and that there was no corroborating evidence that would support an impairment rating being assigned to the tingling in his fingers he experienced.[36]
[36] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 54-59.
CONSIDERATION
Having reviewed the material before it, the Tribunal considers that regardless of whether it accepts the contentions of the Applicant or Respondent in relation to the diagnosis of the Applicant’s neck condition, his claim for DSP must fail.
The Tribunal reaches this view on the basis that should it accept the Respondent’s diagnosis that the Applicant’s neck condition is cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury, having reviewed the medical evidence, it would also accept the Respondent’s contentions that it was fully diagnosed, fully treated and fully stabilised at the Relevant Period.
Based on the evidence provided by the Applicant at the Hearing, his neck condition could not be assigned more than 10 points on Table 4 of the Impairment Tables as he was not unable to, during the Relevant Period:
(a)perform any overhead activities as he was able to hang clothes on the line and wash his hair;
(b)turn his head or bend his neck without moving his trunk, as he can do so with a more limited range of movement;
(c)bend forward to pick up a light object from a desk or table, as he is able to place a suitcase into his car and remove it again; or
(d)remain seated for 10 minutes, as he was able to sit for 30 minutes albeit he fidgets and that he was able to drive himself from Townsville to Mackay with breaks.
The Tribunal considers that there is insufficient corroborating evidence before the Tribunal that the Applicant’s neck condition could be assigned an impairment rating under any of the other Impairment Tables. The Tribunal notes that the Applicant did not make any submissions in relation to why he considered his neck condition should be assigned 20 or more impairment points.
In the alternative, if the Tribunal was to accept the Applicant’s contentions that his neck injury was not cervical spine degenerative changes aggravated by injuries to the posterior cervical musculature injury, but rather was bone on bone causing nerve root impingement, the Tribunal considers that there is insufficient evidence before it to establish that a neck condition of that kind was fully diagnosed during the Relevant Period. The diagnostic imaging conducted during or before the Relevant Period and the medical reports before the Tribunal note that nerve root impingement may arise and make reference to what may need to occur should that happen. There is no corroborating medical evidence before the Tribunal that the Applicant has been diagnosed with nerve root impingement.
It may well be the case that such a diagnosis has been made by Dr Guazzo, noting that the Applicant has advised he is scheduled for surgery later in the year. The trouble for the Tribunal is that there are no reports from Dr Guazzo before it, and any such diagnosis and consideration of treatment occurred after the Relevant Period.
In circumstances where the Applicant has been under further specialist review and treatment has been discussed and scheduled, the Tribunal considers the condition, even if it had been fully diagnosed during the Relevant Period, was not fully treated and fully stabilised at that time. As such, the condition could not be assigned an impairment rating under the Impairment Tables.
The Tribunal notes that while references were made throughout the material before it to the Applicant having a lower back condition, headaches, tingling/numbness in the fingers, disequilibrium and depression (other conditions) during the Relevant Period, the Applicant’s evidence was that these conditions were not stopping him from doing anything. The Applicant expressed that other than the lower back condition which he says he has no concerns about, the other conditions were a result of the nerve root pressure.
The medical evidence in relation to these other conditions is limited in relation to treatment, firm diagnosis, prognosis or impact upon the Applicant’s ability to function. Consequently, based on the evidence before it, the Tribunal considers it is unnecessary to determine whether the Applicant’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The other conditions could not be assigned impairment ratings under the Impairment Tables during the Relevant Period, on the basis that no resulting functional impairment has been established.
Consequently, regardless of whether the Tribunal accepts that Respondent’s view of the Applicant’s neck condition or that provided by the Applicant, the Tribunal would arrive at the same conclusion that during the Relevant Period, the Applicant’s conditions did not attract 20 points or more under the Impairment Tables and as such section 94(1)(b) of the Act is not met.
Should the Tribunal be wrong in relation to its finding that the Applicant’s conditions did not attract 20 points or more under the Impairment Tables during the Relevant Period, his application would still fail as he did not have a continuing inability to work for the purposes of section 94(1)(c) of the Act.
While the Applicant has met the POS requirements during the Relevant Period and even if he had a severe impairment (being a condition that attracts 20 points under a single Impairment Table), the evidence before the Tribunal shows that the Applicant was not prevented from working 15 hours a week independently of a POS.
At the Hearing, the Applicant told the Tribunal that he believed he could engage in at least 15 hours work a week. However, he was concerned that he would not be able to get a job and was worried about what would happen if he was to injury himself again.
The Respondent contended that the Tribunal should accept the opinion of the HPAU as set out in the report dated 10 May 2022. The HPAU opined that the Applicant could achieve a work capacity of 15-22 hours per week with retraining in suitable sedentary employment such as a vocational education teacher.[37]
[37] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 69-76.
Section 94(5) of the Act defines work as follows:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
In determining whether the Applicant has a continuing inability to work, the Tribunal must disregard, among other things:
·      Any impairments that have not been assigned a rating under the Impairment Tables.[38]
·      The availability of work in the Applicant’s locally accessible labour market.[39]
·      The Applicant’s potential attractiveness to an employer in a particular area of work or employer preferences and discriminatory practices that exist in the open labour market, including the willingness or otherwise of employers to engage people with disabilities.[40]
[38]    Secretary, Department of Family & Community Services v Michael (2001) 116 FCR 500.
[39]    Section 94(3)(b) of the Act.
[40]    Woodiwiss and Secretary, Department of Family and Community Services [2003] AATA 846.
Whilst the Tribunal accepts that the Applicant would have trepidations of returning to work both from his ongoing injury management and employment prospect perspectives, those are not issues that can be taken into consideration by the Tribunal in determining his continuing inability to work.
Consequently, based on the medical evidence before the Tribunal and that provided by the Applicant at the Hearing, the Tribunal finds that he did not have a continuing inability to work and as such, the requirements of section 94(1)(c) of the Act were not met during the Relevant Period.
CONCLUSION

Based on the evidence before it, the Tribunal finds that during the Relevant Period:
(a)the Applicant had impairments for the purpose of section 94(1)(a) of the Act;
(b)for the purpose of section 94(1)(b) of the Act, the Applicant’s neck and other conditions did not, during the Relevant Period, attract an impairment rating of 20 points or more under the Impairment Tables;
(c)for the purpose of section 94(1)(c) of the Act, the Applicant did not have a continuing inability to work.
Accordingly, the decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................[SGD]........................
Associate
Dated: 26 July 2022

Date of Hearing: 13 July 2022

Applicant: By phone

Solicitors for the Respondent:
Mr Samuel Harvey
Services Australia

Date of Hearing:	13 July 2022
Applicant:	By phone
Solicitors for the Respondent:	Mr Samuel Harvey Services Australia