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

Collins and Secretary, Department of Social Services (Social services second review) [2018] AATA 1309 (18 May 2018)
Division:GENERAL DIVISION
File Number: 2017/5281
Re:Paul Collins
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:18 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................[SGD]................................................
Member D K Grigg
CATCHWORDS

SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 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)
REASONS FOR DECISION
Member D K Grigg
18 May 2018
INTRODUCTION

On 10 October 2016 Mr Collins lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as:[1]
·Left shoulder;
·Left foot;
·Heart;
·Numbness in feet and hands;
·Hip;
·Numbness in legs; and,
·Broken bones in left foot due to heart problem
[1] Exhibit 1, T Documents, T 31, page 138, DSP Claim of Mr Collins dated 19 October 2016.
Mr Collins indicated in his claim form that he was expecting to have an operation in the future and that due to his conditions he can only walk short distances, becomes breathless and has difficulty holding things due to his shoulder.[2]
[2] Exhibit 1, T Documents, T 31, pages 138-139, DSP Claim of Mr Collins dated 19 October 2016.
A Job Capacity Assessment (“JCA”) was conducted with Mr Collins face-to-face by a rehabilitation counsellor and registered nurse on 10 November 2016. The JCA found that Mr Collins’:[3]
(a)diabetes and shoulder conditions were fully diagnosed, fully treated and fully stabilised, but assigned an impairment rating of 0 points on the basis that the conditions were not impacting on Mr Collins’ ability to function; and
(b)other conditions were not fully diagnosed, fully treated and fully stabilised.
[3] Exhibit 1, T Documents, T 36, pages 153 – 161, JCA report dated 18 November 2016.
As a result of the JCA report, the Department of Human Services (“Centrelink”) rejected Mr Collins’ claim for DSP, because he did not have permanent impairments with a total impairment rating of 20 points or more.[4]
[4] Exhibit 1, T Documents, T 39, pages 164-165, Rejection of claim for DSP dated 14 February 2017.
Claim History
Mr Collins sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[5] Exhibit 1, T Documents, T 44, pages 171-182, Decision of ARO and notes dated 5 April 2017.
Mr Collins’ medical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more.[5]
Mr Collins then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected
[6] Exhibit 1, T Documents, T2, pages 3-8, SSCSD’s Decision and Reasons for Decision dated 2 August 2017.
Mr Collins’ claim and affirmed the ARO’s decision on 2 August 2017.[6]
Mr Collins has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 4 September 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Collins must have a physical, intellectual or psychiatric impairment;
(b)Mr Collins’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[8] and
(c)Mr Collins has a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Collins meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 19 October 2016), unless Mr Collins becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, to qualify for DSP, Mr Collins must have met the Section 94 Requirements between 19 October 2016 and 18 January 2017 (“Qualification Period”).
[9] See ss 41 and 42; clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Collins’ impairments after the Qualification Period, can be considered if it “cast[s] light on” the functional impact of the impairments as at the Qualification Period.[10]
DID MR COLLINS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Mr Collins’ Medical Conditions
[11] Determination, s 3.
Diabetes
Mr Collins has Type 2 diabetes.
Dr Thorpe reported in May 2016 and January 2017 that Mr Collins was experiencing sensory loss in his hands and feet which was likely to persist.[12]
[12] Exhibit 1, T Documents, T18, page 94, Medical certificate of Dr Thorpe dated 3 May 2016; T37, page 162, Medical certificate of Dr Thorpe dated 19 January 2017.
Diabetic Retinopathy
Mr Collins has Type 2 diabetes which has resulted in him suffering from diabetic retinopathy.
In October 2016 Ms Salter, Optometrist, reported that Mr Collins had “substantial diabetic retinopathy in each eye…close to preproliferative [and]…several haemorrhages at the macula especially in the left eye”. As a result Ms Salter referred Mr Collins to Dr Yates.[13]
[13] Exhibit 1, T Documents, T32, page 143, Referral letter from Ms Salter to Dr Yates dated 27 October 2016.
In 2018 Mr Collins was referred to an opthamologist.[14]
[14] Exhibit 3, Letter from PA Hospital dated 19 February 2018.
Ischaemic Heart Disease (“IHD”)/Respiratory Condition
Mr Collins has IHD which he treats with Imdur.[15]
[15] Exhibit 1, T Documents, T33, pages 144-145, Medical summary dated 8 November 2016; T18, pages 94-95,
Medical Certificate Dated 03 May 2016.
In April 2016 Mr Collins had a myocardial perfusion study which indicated ischaemia was possible, so he was referred to a cardiologist.[16]
[16] Exhibit 1, T Documents, T35, pages 151-152, Report of Dr Jones dated 27 April 2016.
Dr Thorpe reported in May 2016 that Mr Collins was experiencing chest tightness which was likely to persist.[17]
[17] Exhibit 1, T Documents, T18, page 94, Medical certificate of Dr Thorpe dated 3 May 2016.
In June 2016 Dr Johannes Moolman, Cardiologist, reported that Mr Collins:[18]
(d)reported progressive shortness of breath for the last year consistent with NYHA (New York Heart Association) class III;[19]
(e)had intermittent right chest pains twice a week; and
(f)was booked in for an angiogram.
[18] Exhibit 1, T Documents, T35, pages 149-150, Report of Dr Moolman dated 29 June 2016.
[19] According to the NYHA Functional Classification, class III NYHA Functional Classification Class III – “Marked limitation of physical activity. Less than ordinary activity leads to symptoms (moderate CHF). ” Kasper D L, Fauci A S et al, Harrison’s Principles of Internal Medicine (McGraw Hill Education, 19^th ed, volume 2, 2015) pp 1439-1440.
Following further testing, in October 2016 Drs Thayananadan and Moolman, Cardiologist, reported that Mr Collins was being referred to respiratory clinic to find the cause of the shortness of breath as it was unlikely to be cardiac in nature.[20]
[20] Exhibit 1, T Documents, T28, pages 107-109, Report of Drs Thayanandan and Moolman dated 6 October 2016.
Diabetic Foot – Charcot neuropathy
In 2016, Mr Collins was diagnosed with early Charcot in the left ankle joint and was having high risk podiatry treatment.[21]
[21] Exhibit 1, T Documents, T24, page 101, Medical certificate of Dr Thorpe dated 19 July 2016; T25, page 103,
Report of Ms Nunn, senior podiatrist, dated 4 August 2016.
In August 2016 Mr Collins was due to be seen by an Endocrinologist.[22]
[22] Exhibit 1, T Documents, T25, page 103, Report of Ms Nunn, Senior Podiatrist, dated 4 August 2016.
In September 2016 Mr Clinton Abel, from the Foot & Ankle Clinic, reported that Mr Collins was having ongoing treatment for his left lower leg and has been in a cast for 2 weeks.
[23] Exhibit 1, T Documents, T27, page 106, Report of Mr Abel, dated 1 September 2016.
Mr Abel stated that Mr Collins’ treatment required him to be non-weight bearing totally with the aid of crutches and that the ongoing treatment sequence was not known, but likely to involve a lengthy process of non or semi weight bearing followed by intense review and follow up.[23]
Dr Andrew Thayanandan, Principal House Officer for the Cardiology Clinic at Ipswich Hospital, reported in October 2016 that Mr Collins can walk 100 yards but then has to rest due to shortness of breath.[24]
[24] Exhibit 1, T Documents, T28, pages 107-109, Report of Drs Thayanandan and Moolman dated 6 October 2016.
In November 2016 Dr Dover, endocrinologist, reported that Mr Collins had long term foot complications resulting from his diabetes, which is unlikely to resolve and requires him to be non-weighting bearing and he can only walk a minimal distance.[25]
[25] Exhibit 1, T Documents, T34, page 147, Report of Dr Dover dated 10 November 2016.
Mr Collins reported to the JCA in November 2016, that because the orthotics had increased his pain and swelling in his feet, he had ceased using them and returned to a brace. Mr Collins also told the JCA that his mobility was restricted to approximately 1OOm, due to the use of a brace and crutches.[26]
[26] Exhibit 1, T Documents, T36, page 154, Job Capacity Assessment Report dated 18 November
2016.
Dr Thorpe reported in January 2017 that Mr Collins’ Charcot foot condition was severe, likely to persist, causing a loss of sensation, and had reduced his mobility.[27]
[27] Exhibit 1, T Documents, T37, page 162, Medical certificate of Dr Thorpe dated 19 January 2017.
In March 2017 Dr Thorpe reported that Mr Collins had part of his right foot amputated and the Charcot foot condition was severe, likely to persist, causing a loss of sensation, and had reduced his mobility.[28]
[28] Exhibit 1, T Documents, T42, page 168, Medical certificate of Dr Thorpe dated 14 March 2017.
Also in March 2017, Dr Jessica Hooker, from Ipswich General Hospital, reported that:[29]
(a)the amputation wound was not healing, was infected and was causing pain and was expected to affect Mr Collins for 3-12 months;
(b)Mr Collins is continuing to be regularly reviewed by orthopaedics and podiatry; and
(c)Mr Collins’ Charcot foot, diabetes and peripheral neuropathy was permanent and likely to persist for more than 2 years and were delaying the healing of Mr Collins’ amputation wound.
[29] Exhibit3, Medical certificate of Dr Hooker dated 21 March 2017.
Osteoarthritis - Spine
Dr Thorpe reported in May 2016 that Mr Collins had osteoarthritis in his spine, which was causing pain and was likely to deteriorate within the next two years.[30]
[30] Exhibit 1, T Documents, T18, page 94, Medical certificate of Dr Thorpe dated 3 May 2016.
Dr Thorpe reported in January 2017 that Mr Collins had osteoarthritis in his spine which was causing pain and was likely to deteriorate within the next two years.[31]
[31] Exhibit 1, T Documents, T37, page 162, Medical certificate of Dr Thorpe dated 19 January 2017.
Osteoarthritis - Knees
In September 2012, Dr Sean Mullen, Orthopaedic Surgeon, reported that Mr Collins had an infected left prepatellar bursitis in his left knee.[32]
[32] Exhibit 1, T Documents, T4, page 61, Report of Dr Mullen dated 11 September 2012.
Dr Thorpe reported in May 2016 that Mr Collins had osteoarthritis in his knees which was causing pain and was likely to deteriorate within the next two years.[33]
[33] Exhibit 1, T Documents, T18, page 94, Medical certificate of Dr Thorpe dated 3 May 2016.
Dr Thorpe reported in January 2017 that Mr Collins had osteoarthritis in his knees which was causing pain and was likely to deteriorate within the next two years.[34]
[34] Exhibit 1, T Documents, T37, page 162, Medical certificate of Dr Thorpe dated 19 January 2017.
Shoulder
In 2013 Mr Collins was diagnosed with left shoulder brachial plexus neuropathy plus scapula nerve palsy. Dr Andrew McGee, specialist orthopaedic surgeon, reported that surgery would not assist and that hopefully, with time, his nerve will recover and his shoulder function would improve.[35]
[35] Exhibit 1, T Documents, T13, page 74, Report of Dr McGee dated 19 August 2013.
In November 2015 Dr Thaung, General Practitioner, reported that Mr Collins’ sub-acromial bursitis had an uncertain prognosis and left him with a restricted range of movement and tenderness in the left shoulder.[36]
[36] Exhibit 1, T Documents, T17, page 93, Medical certificate of Dr Thaung dated 6 November 2015.
Hypertension
Mr Collins has hypertension which he treats with Karvezide, Lercan and Noten.[37]
[37] Exhibit 1, T Documents, T33, pages 144-145, Medical summary dated 8 November 2016.
Hypercholesterolaemia
Mr Collins has hypercholesterolaemia which he treats with Lipidil and Lipitor.[38]
[38] Exhibit 1, T Documents, T33, pages 144-145, Medical summary dated 8 November 2016.
Gastro-oesophageal Reflux (GOR)
Mr Collins has GOR which he treats with Nexium.[39]
[39] Exhibit 1, T Documents, T33, pages 144-145, Medical summary dated 8 November 2016.
Other
In May 2017 Dr Alvin Tan, Medical Registrar at Ipswich Hospital and Dr Aalia Thasneem Saleem, Respiratory and Sleep Physician, reported that Mr Collins may have underlying interstitial lung disease and possible obstructive sleep apnoea and required further diagnostic testing.[40]
[40] Exhibit 1, T Documents, T47, pages 186-187, Report of Dr Tan and Dr Thasneen Saleem dated 15 May 2017.
In November 2015 Dr Thaung, General Practitioner, reported that Mr Collins was experiencing tiredness and a lack of energy from his diabetes.[41] However, Mr Collins informed the Tribunal that prior to then, he had never experienced fatigue from his diabetes condition and believes it is more likely that he was tired as a result of sleep apnoea.
[41] Exhibit 1, T Documents, T17, page 93, Medical certificate of Dr Thaung dated 6 November 2015.
Conclusion on Impairment
The Secretary accepts that Mr Collins suffers from physical impairments for the purposes of section 94(1)(a) at the Qualification Period.[42]
[42] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 6 April 2018, para 31.
Considering the medical evidence, the Tribunal finds that during the Qualification Period Mr Collins suffered from a Diabetes Impairment, IHD Impairment, Charcot Neuropathy Impairment, for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
The Tribunal also accepts that Mr Collins suffers from a Diabetes Retinopathy Impairment. However, this condition had not been treated by the Qualification Period and therefore cannot be considered for the purpose of this DSP application.
The Tribunal also accepts that Mr Collins has osteoarthritis in his knees and spine. However, there is limited evidence in relation to these conditions and no evidence of what treatment Mr Collins had during the Qualification Period. Therefore, this condition cannot be considered for the purpose of this DSP application.
In relation to the hypertension, hypercholesterolaemia and GOR conditions, there is no medical evidence that these conditions affect Mr Collins’ ability to function. Therefore, the Tribunal is unable to find that these conditions are Impairments as defined by the Act.
DOES MR COLLINS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in section 94(1)(b) of the Act.[43] They are function based[44] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[45]
[43] Determination, ss 4(2) and 5(2)(a).
[44] Determination, ss 5(2)(b) and (c).
[45] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[46]
(a)Mr Collins’ condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[46] Determination, see s 6(3).
Mr Collins’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[47]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[47] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[48] the following must be considered:[49]
(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.
[48] For the purposes of ss 6(4)(a) and (b) of the Determination.
[49] Determination, see s 6(5).
A condition is fully stabilised[50] if:[51]
(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[52]; or
(ii)there is a medical or other compelling reasons for the person not to undertake reasonable treatment.
[50] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[51] Determination, see s 6(6).
[52] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

Before applying the Tables, Mr Collins’ medical history, in relation to the condition causing the Impairments, must be considered.[53]
[53] Determination, see s 6(2).
Is Mr Collins’ Charcot Neuropathy Impairment Permanent?
The Tribunal finds that Mr Collins’ Charcot Neuropathy Impairment of his left foot is fully diagnosed, fully treated and fully stabilised. However, Mr Collins’ right foot was not fully treated and fully stabilised during the Qualification Period. The Secretary accepts

Mr Collins’
Charcot Neuropathy Impairment of his left foot is permanent.[54]
[54] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 6 April 2018, para 32.
Therefore, an Impairment Rating can be assigned for this condition.
Using the Impairment Tables
The level of impact of Mr Collins’ Cardiomyopathy Impairment has to be assessed against the descriptors[55] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables. In order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor) are consulted.[56]
[55] Determination, see ss 3 and 5(3).
[56] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do, or what others do for the person.[57]
[57] Determination, see s 6(1).
Pursuant to the Determination:
(a)the following information must be taken into account in applying the Tables:[58]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)the following information must not be taken into account in applying the Tables:[59]
(i)symptoms reported by Mr Collins in relation to his condition where there is no corroborating evidence; and
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Collins’ local community.
[58] Determination, see s 7.
[59] Determination, see s 8.
Which Tables are appropriate are determined by:[60]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[60] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[61]
[61] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned, unless all the descriptors for that level of impairment are satisfied.[62]
[62] Determination, see s 11(1).
The descriptor applies only if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[63]
[63] Determination, see s 11(3).
Where a persons diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[64]
[64] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Period
There is a distinct lack of evidence regarding how this Impairment impacts on Mr Collins’ ability to function. The evidence that is available indicates that:
(a)In September 2015, a year prior to the Qualification Period, Mr Collins told a JCA that:[65]
(i)his foot swells after walking for 30 minutes;
(ii)he was able to drive a car; and
(iii)would be able to use public transport if required.
(b)Eleven months later, Mr Collins’ functional ability had worsened and it was reported that Mr Collins was being treated with a Total Contact Cast for “complete immobilisation and offloading of his left foot and ankle”.[66] Mr Collins remained in a Total Contact Cast in September 2016 and at that time he had to remain non-weight bearing and move totally with the aid of crutches.[67] It was reported by his treating podiatrist that Mr Collins was likely to be non or semi weight bearing for a long time and unlikely to be able to physically return to any form of meaningful work.
(c)Dr Thorpe described Mr Collins’ condition in October 2016 (at the date of the DSP claim) as “severe”.[68]
(d)Dr Dover confirmed in November 2016 that Mr Collins could only walk minimal distances and had to be non-weight bearing.[69]
(e)Mr Collins told the JCA in November 2016 that his mobility was restricted due to the use of a brace and crutches to approximately 1OOm.[70]
[65]         Exhibit 1, T Documents, T16, pages 88 and 91-92, JCA Report dated 8 September 2015.
[66]         Exhibit 1, T Documents, T25, page 103, Report of Ms Nunn, Senior Podiatrist, dated 4 August 2016.
[67]         Exhibit 1, T Documents, T27, page 106, Report of Mr Abel, dated 1 September 2016.
[68]         Exhibit 1, T Documents, T29, page 110, Medical certificate of Dr Thorpe dated 18 October 2016.
[69]         Exhibit 1, T Documents, T34, page 147, Report of Dr Dover dated 10 November 2016.
[70]         Exhibit 1, T Documents, T 36, page 154, JCA report dated 18 November 2016.
The corroborating evidence that is available indicates that during the Qualification Period, Mr Collins could walk approximately 100 meters.
At the hearing, Mr Collins told the Tribunal that he experiences pain from his feet to his hips when standing.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 3 of the Determination, which deals with lower limb function. The introduction to Table 3 provides[71]:
[71] Determination, see Table 3.
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
The Secretary submits that an appropriate Impairment Rating for Mr Collins’ Charcot Neuropathy Impairment is 5 points.[72] Mr Collins says he should get the highest rating (this being 30 points).
[72] Exhibit 2, Secretary's Statement of Facts and Contentions dated 6 April 2018, para 32.
In order to assign an Impairment Rating of 5 points, the evidence would need to show that there is a mild functional impact on activities involving the lower limbs.
The Descriptors for an Impairment Rating of 5 points are:
1 At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)the person has some difficulty climbing stairs; and
2At least one of the following applies:
(a)the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
To assign an Impairment Rating of 10 points there would need to be corroborating evidence that:
(a)at least one of the following applies:
(i)Mr Collins is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities; or
(ii)Mr Collins is unable to use stairs or steps without assistance; or
(iii)Mr Collins is unable to stand for more than 5 minutes; and
(b)Mr Collins can use public transport or a motor vehicle and walk around in a shopping centre or supermarket.
An impairment rating of 10 points includes a person who can:
(a)move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or
(b)move around independently using walking aids (e.g. quad stick, crutches or walking frame).
Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
To assign an Impairment Rating of 20 points there would need to be evidence that
Mr Collins was unable to do any of the following:
(i)walk around a shopping centre or supermarket without assistance;
(ii)walk from the carpark into a shopping centre or supermarket without assistance;
(iii)stand up from a sitting position without assistance; and
(b) requires assistance to use public transport.
There is no medical or corroborating evidence that Mr Collins meets the criteria for a severe Impairment Rating of 20 points.
Based on the corroborating evidence that is available, the Tribunal finds that an Impairment Rating of 10 points is appropriate for Mr Collins’ Charcot Neuropathy Impairment under Table 3.
Given that there may have been deterioration in Mr Collins’ condition, particularly given the partial amputation of his right foot, it is open to Mr Collins to consider making a fresh application for the DSP.
Are Mr Collins’ Shoulder Impairment Permanent?
The medical evidence supports a finding that Mr Collins’ Shoulder Impairment was fully diagnosed during the Qualification Period. The issue is whether it was fully treated and fully stabilised.
The medical evidence indicates that there is no treatment for Mr Collins that will significantly improve his ability to function. Therefore, the Tribunal finds that Mr Collins’ Shoulder Impairment is permanent and an Impairment Rating can be assigned. This is accepted by the Secretary.[73]
[73] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 6 April 2018, para 38.
Evidence Identifying the Loss of Function at the Qualification Period
Again, there is a distinct lack of evidence regarding how this Impairment impacts on
Mr Collins’ ability to function.
The corroborating evidence that is available indicates that during the Qualification Period Mr Collins:[74]
(a)had restricted shoulder movement;
(b)had difficulty lifting a cordless drill;
(c)was able to pull but not push with his left arm;
(d)required assistance to pull shirts/shorts on or off;
(e)was able to shower himself; and
(f)could reach shoulder height to lift a cup from a shelf to place on a table or bench.
[74] Exhibit 1, T Documents, T 36, page 155, JCA report dated 18 November 2016; Exhibit 1, T Documents, T17, page 93, Medical certificate of Dr Thaung dated 6 November 2015; Exhibit 1, T Documents, T16, page 90, JCA report dated 8 September 2015.
At the hearing, Mr Collins told the Tribunal that his shoulder muscle is wasting away and that he can lift objects straight up but not out. Mr Collins’ right arm is in ok condition. He recently commenced occupational therapy.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 2 of the Determination, which deals with lower limb function. The introduction to Table 2 provides[75]:
[75] Determination, see Table 2.
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submits that an appropriate Impairment Rating for Mr Collins’ Shoulder Impairment is 5 points.[76]
[76] Exhibit 2, Secretary's Statement of Facts and Contentions dated 6 April 2018, para 38.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving the upper limbs.[77]
[77] Determination, see Table 2.
The Descriptors for an Impairment Rating of 5 points are:
1The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)handling very small objects (e.g. coins);
(c)doing up buttons;
(d)reaching up or out to pick up objects.
To obtain a 5 point rating “most” of the descriptors, that is 3 out of the 4, must be met.
The evidence indicates that Mr Collins had some difficulty with lifting and reaching out, which satisfies (1)(a) and (d) of the abovementioned descriptors. However, there is no evidence that Mr Collins has any difficulties with finer motor skills such as those described in (1)(b) and (c).
As Mr Collins does not satisfy “most” of the descriptors the Tribunal cannot award a rating of 5 points for this condition. As a result Mr Collins’ Shoulder Impairment attracts a zero point Impairment Rating.
Is Mr Collins’ IHD/Respiratory Impairment Permanent?
The Tribunal finds that while there is medical evidence that Mr Collins has IHD, it is not the IHD that is causing Mr Collins’ chest pain and shortness of breath. During the Qualification Period Mr Collins had not been fully diagnosed with this condition and was still awaiting an assessment from a respiratory clinic. There is no evidence to indicate how the IHD on its own is impacting Mr Collins’ ability to function.
As a result, this Impairment cannot be considered permanent during the Qualification Period and no Impairment Rating can be assigned.
WERE MR COLLINS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
The Tribunal has found that the total Impairment Rating for Mr Collins’ permanent Impairments was 10 points. Therefore, Mr Collins did not satisfy section 94(1)(b) of the Act at the Qualification Period.
DID MR COLLINS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
The Tribunal has concluded that Mr Collins’ Impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables at the Qualification Period, therefore it is unnecessary for me to consider whether Mr Collins had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c)) of the Act at that time.
DECISION
Mr Collins’ claim fails. His permanent impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables during the Qualification Period and as a result he did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................[SGD].......................................................
Associate
Dated: 18 May 2018

Date of hearing: 23 April 2018

Applicant: By Phone

Solicitors for the Respondent: Jasmine Forsyth,
Department of Human Services

[2018] AATA 1309

18 May 2018

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Appeal

Date of hearing:	23 April 2018
Applicant:	By Phone
Solicitors for the Respondent:	Jasmine Forsyth, Department of Human Services