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

Collins and Secretary, Department of Social Services (Social services second review) [2018] AATA 855 (11 April 2018)
Division:GENERAL DIVISION
File Number: 2016/5106
Re:Cameron Collins
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:11 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[SGD]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension –whether conditions permanent – 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)
REASONS FOR DECISION
Member D K Grigg
11 April 2018
INTRODUCTION AND CLAIMS HISTORY

On 26 June 2015 Mr Collins lodged a claim for Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T 29, pages 77 – 159, Mr Stevens Claim for DSP dated 26 June 2015.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Collins’ claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T 32, pages 169 – 170, Rejection of claim for DSP dated 11 September 2015.
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
[3] Exhibit 1, T Documents, T 47, pages 222 – 228, Decision of ARO and notes dated 1 March 2016.
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, and she did not meet the program of support requirements.[3]
Mr Collins lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected

Mr Collins’
claim and affirmed the ARO’s decision on 17 August 2016.[4]
[4] Exhibit 1, T Documents, T2, pages 3 – 13, SSCSD’s Decision and Reasons for Decision dated 17 August
2016.
Mr Collins has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 15 September 2016.
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”);[6]
(c)Mr Collins has a continuing inability to work.
[6] 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, 9 July 2015), unless Mr Collins becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[7] Therefore, to qualify for DSP Mr Collins must have met the Section 94 Requirements between 9 July 2015 and 8 October 2015 (“Qualification Period”).
[7] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Collins’ impairments after the Qualification Period can only be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[8]
DID MR COLLINS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[8] 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”.[9]
Mr Collins’ Medical Conditions
[9] Determination, s 3.
Inguinal Hernia
A pelvic ultrasound undertaken in November 2009 indicated that Mr Collins had an inguinal hernia.[10]
[10] Exhibit 1, T Documents, T5, page 44, Ultrasound report dated 9 November 2009.
In December 2009 Dr Paul Bennett, General Surgeon, diagnosed Mr Collins bilateral inguinal herniae which required surgery to repair.[11] The surgery to repair the hernia took place in April 2010.[12]
[11] Exhibit 1, T Documents, T 29, page 120, Report of Dr Bennett dated 1 December 2009.
[12] Exhibit 1, T Documents, T 29, page 122, Report of Dr Vana dated 19 November 2012.
In 2012 Dr Bhatnagar, General Practitioner, reported that Mr Collins had post-operative pain from his left and right inguinal hernia.[13]
[13] Exhibit 1, T Documents, T 13, page 52, Medical Certificate dated 8 February 2012; T 16, page 60, Medical
Certificate dated 1 June 2012.
In August 2012 Dr Vana, General Practitioner, reported that Mr Collins had pain in the right groin following his bilateral inguinal hernia operation.[14]
[14] Exhibit 1, T Documents, T 18, page 63, Medical Certificate dated 13 August 2012.
In November 2012 Dr Vana referred Mr Collins to Dr Leigh Rutherford, General Surgeon, as a result of his ongoing groin pain following his operation.[15]
[15] Exhibit 1, T Documents, T 29, page 122, Report of Dr Vana dated 19 November 2012
Dr Rutherford reported in November 2013 that a recent groin ultrasound had not detected evidence of any recurrent hernias and that it was reasonable to suggest a chronic pain specialist.[16]
[16] Exhibit 1, T Documents, T 29, page 123, Report of Dr Rutherford dated 18 November 2013.
In October 2015 an ultrasound indicated that there was a direct inguinal hernia on the right.[17]
[17] Exhibit 1, T Documents, teeth 33, page 171, Ultrasound report dated 27 October 2015.
Dr Rutherford reported in November 2015 that, despite Mr Collins continued pain symptoms in the groin post his hernia repair, that there was “clinically… little for [him] to find with respect to recurrence of the hernia” and that he “suspect[ed] this is an inguinodynia possibly related to previous surgery but also with respect to osteitis pubis and also a tendinitis of the adductor longess tendon. From a hernia point of view I don’t think there is any evidence of recurrence and his thin build makes it easy to examine the right groin. I note the U/S report suggesting a direct recurrence but I don’t think this is of any relevance, and I suspect more than likely it is a lipomaof this spermatic cord which is of no clinical significance.”[18] Dr Rutherford suggested that he would give him a form of radiological guided cortisone injection into the right pubic tubercle to see whether this helps with the pain but from a surgical point of view he would not specifically push for any further intervention.
[18] Exhibit 1, T Documents, T 39, pages 195 – 196, Report of Dr Rutherford dated 9 November 2015.
In March 2016 Mr Collins had an ultrasound guided therapeutic injection of the right pubic tubercle for therapy of localised pain.[19]
Upper Limbs
[19] Exhibit 1, T Documents, T 52, page 252, Ultrasound report dated 9 March 2016.
Hands/Wrists
In February 2012 Dr Bhatnagar reported that Mr Collins had pain in his left and right wrists post carpal tunnel syndrome surgery.[20]
[20] Exhibit 1, T Documents, T 13, page 52, Medical Certificate dated 8 February 2012; T 16, page 60, Medical
Certificate dated 1 June 2012
In July 2012 Dr Vana reported that Mr Collins had tingling and weakness in his hands which was likely to persist.[21]
[21] Exhibit 1, T Documents, T 17, page 62, Medical Certificate dated 18 July 2012;
In August 2012 Dr Vana reported that Mr Collins had tingling and weakness in his hands and the prognosis was uncertain.[22]
[22] Exhibit 1, T Documents, T 18, page 63, Medical Certificate dated 13 August 2012.
In June 2014 Dr Vana reported that Mr Collins had temporary numbness in both hands after his bilateral carpal tunnel syndrome release.[23]
[23] Exhibit 1, T Documents, T 24, page 69, Medical Certificate dated 19 June 2014.
In August 2014 Dr Vana reported that Mr Collins was still experiencing numbness and pins and needles in both hands.[24]
[24] Exhibit 1, T Documents, T 27, page 75, Medical Certificate dated 22 August 2014.
In September 2014 Mr Collins was seen by Dr Bonev, Neurologist, who reported that Mr Collins:[25]
(a)had reduced ulnar motor nerve-conduction velocities in the across elbow segment bilaterally;
(b)normal left median sensory and motor nerve conduction velocities; and
(c)moderate right carpal tunnel conduction delay.
[25] Exhibit 1, T Documents, T 29, pages 131 – 132 Report of Dr Bonev dated 15 September 2014.
Shoulder/Elbow
In July 2012 Dr Vana reported that Mr Collins had bilateral entrapment of the ulnar nerve which was temporary and that he was waiting for an epicondylectomy.[26]
[26] Exhibit 1, T Documents, T 17, page 62, Medical Certificate dated 18 July 2012;
In June 2014 Dr Vana reported that Mr Collins still had temporary pain in the right elbow after his epicondylectomy.[27]
[27] Exhibit 1, T Documents, T 24, page 69, Medical Certificate dated 19 June 2014.
In August 2014 Dr Vana reported that Mr Collins was still experiencing pain in the right elbow.[28]
[28] Exhibit 1, T Documents, T 27, page 75, Medical Certificate dated 22 August 2014.
An ultrasound of Mr Collins right shoulder in October 2015 indicated features of subdeltoid bursitis.[29]
[29] Exhibit 1, T Documents, T 39, page 197, Ultrasound report dated 28 October 2015.
In March 2016 Mr Collins had an ultrasound guided therapeutic injection of the right shoulder for therapy of his severe active subacromial/subdeltoid bursitis.[30]
[30] Exhibit 1, T Documents, T 51, page 251, Ultrasound report dated 9 March 2016.
In June 2016 Mr Collins had an ultrasound which indicated significant ongoing chronic right subacromial/subdeltoid bursitis with impingement on dynamic evaluation and mild supraspinatus tendonosis.[31]
[31] Exhibit 1, T Documents, T 57, page 258, Ultrasound report dated 1 June 2016.
Spinal Conditions - Back and Neck
In February 2014 Mr Collins was referred by Dr Vana to Dr Leigh Dotchin, Interventional Pain Specialist, for review regarding his chronic lower back and cervical spine pains and headaches which had been ongoing since 2003 after he fell at work.[32]
[32] Exhibit 1, T Documents, T21, page 66, letter from Dr Vana to Dr Dotchin dated 28 February 2014.
Dr Vana reported in April 2014 that Mr Collins had initially seen a physiotherapist for his back and neck pain but that it had gotten worse recently.[33]
[33] Exhibit 1, T Documents, T 22, page 67, Medical Certificate dated 22 April 2014.
In June 2014 Dr Vana reported that Mr Collins lumbar and cervical spine pain had deteriorated and was limiting his mobility but that the prognosis was uncertain and he had been referred to a physiotherapist, and was taking Panadeine Forte and using Voltaren.[34]
[34] Exhibit 1, T Documents, T 24, page 69, Medical Certificate dated 19 June 2014; T 25, page 70, GP management
plan dated 25 June 2014.
In August 2014 Dr Vana reported that Mr Collins still experiencing ongoing pain in his lower back and cervical spine with headaches and that he had completed his sessions with a physiotherapist and exercise physiologist.[35]
[35] Exhibit 1, T Documents, T 27, page 75, Medical Certificate dated 22 August 2014.
In July 2015 Mr Simon Yelland, Physiotherapist, reported that Mr Collins had completed five visits and had improved his spinal mobility but was still suffering from chronic and persistent pain. Mr Yelland provided Mr Collins with some core stability exercises and encouraged him to attend hydrotherapy to help maintain his mobility.[36]
[36] Exhibit 1, T Documents, T 30, page 160, Report of Mr Yelland dated 13 July 2015.
In May 2016 Mr Yelland reported that Mr Collins had completed his program for the year and that he continues to suffer chronic pain in his neck, back, arms and legs and has recently complained of a clicking tendon with pain in the right shoulder. Mr Yelland said he had to be able to treat his pains with a number of neural gliding techniques, joint mobilisations, myofascial trigger point releases and acupuncture and this had improved his problem and he had given Mr Collins a number of home exercise stretches to helping managers ongoing pain.[37]
[37] Exhibit 1, T Documents, T 56, page 257, Report of Mr Yelland dated 11 May 2016.
Chronic Pain
In April 2014 Mr Collins was seen by Dr Dotchin, Interventional Pain Physician, who reported that:[38]
(a)Mr Collins was under ongoing investigation management by surgical teams in relation to his lower back and neck;
(b)An MRI of the cervical spine did not show any major pathology or frank nerve root compromise;
(c)Mr Collins had recently been reviewed by a psychiatrist and had refused further antidepressant treatment and opted instead for engagement with a psychologist;
(d)“had persistent pain affecting multiple areas including somewhat atypical stocking distribution discomfort in the feet together with bilateral paraesthesia in the hands with associated pain. This is thought to be due to recalcitrant carpal tunnel syndrome and possibly possibly ulnar nerve entrapment. There is also some long-standing neuropathic sensitivity around the mesh placement in the groin. Given the complexity of Cameron’s pains and their long-standing nature, I do not think interventional treatment is likely to be of benefit. Medication strategies could include trials of Lyrica”.
[38] Exhibit 1, T Documents, T 29, pages 126 – 127, Report of Dr Dotchin dated 11 April 2014.
Mental Health
Medical evidence indicates that Mr Collins had had depression in 2006.[39]
[39] Exhibit 1, T Documents, T 29, page 151, Report of Dr Vana dated 27 May 2015.
In November 2009 Mr Collins presented at an Emergency Department regarding his depressed mood and suicidal ideation. A clinical nurse from the hospital subsequently wrote to Mr Collins confirming that they had encouraged him to comply with medication, to engage with his GP and to obtain a referral to a psychologist but they had been unable to make contact with him.[40]
[40] Exhibit 1, T Documents, T 29, page 140, Letter from clinical nurse to Mr Collins dated 5 December 2009.
In February 2012 Dr Bhatnagar reported that Mr Collins had depression and anxiety.[41]
[41] Exhibit 1, T Documents, T 13, page 52, Medical Certificate dated 8 February 2012; T 16, page 60, Medical
Certificate dated 1 June 2012
In February 2014 Dr Bhatnagar reported that Mr Collins was getting anxiety attacks and did not want to take any medication and referred him to Dr David Straton, Psychiatrist.[42]
[42] Exhibit 1, T Documents, T 29, page 148, Letter to Dr Straton dated 28 February 2014.
In October 2015 Susan Mellor, Psychologist, reported that Mr Collins had attended two sessions with her in June 2015 and presented with significant symptoms of depression. Ms Mellor reported that Mr Collins DASS score in May 2015 showed that he had extremely severe depression, extremely severe anxiety and extremely severe stress and she suggested to Mr Collins that he would benefit from an opinion and management from a psychiatrist due to the severity of his depression. It was also suggested that Mr Collins would benefit from attending a pain management clinic and consulting with a psychologist specialising in chronic pain.[43]
[43] Exhibit 1, T Documents, T 39, pages 187 – 188, Report of Ms Mellor dated 2 October 2015.
In November 2015 Dr Vana referred Mr Collins to Dr Maxwell Katz, Consultant Psychiatrist.[44]
[44] Exhibit 1, T Documents, T 39, page 189, Letter from Dr Vana to Dr Katz dated 19 November 2015.
In April 2016 Dr Katz reported that Mr Collins had been attending for assistance with his mental health needs and that an update of his diagnosis was that of congenital ADD/ADHD Spectrum Disturbances in conjunction with his orthopaedic injuries and secondary depressive disturbances. Dr Katz reported that Mr Collins:[45]
(a)was prescribed selective use of a stimulant namely Ritalin which was assisting in “moderating longstanding symptoms of cognitive processing disturbances associated particularly with diminished concentration, attention span and registration of information, especially from low stimulus sources as well as easy distractibility, difficulty staying to task and procrastination and incessantly busy, racing and poorly focused thoughts reflected also back in early developmental years in school reports as well is academic functioning”; and
(b)was “continuing to take Sodium Valproate…which was helping with muscle spasms and mood stabilisation together with PRN Diazepam also for muscle spasms and help him settle at night as he is unable to lie on his side and has to sleep on the recliner because of his orthopaedic injuries”.
[45] Exhibit 1, T Documents, T 53, page 253, Report of Dr Katz dated 5 April 2016.
In June 2016 Dr Vana referred Mr Collins for further psychological review for his depression and anxiety. Dr Vana reported that Mr Collins felt that life was not worth living and that he had previously seen a psychologist until he started seeing Dr Katz and had no change in his medication.[46]
[46] Exhibit 1, T Documents, T 58, pages 259 – 260, referral form completed by Dr Vana dated 6 June 2016.
Ear/Tinnitus
Mr Collins was diagnosed with Tinnitus in his right ear in 2007.[47]
[47] Exhibit 1, T Documents, T 39, page 204, Referral from Dr Sarifi to Dr Webber dated 18 September 2015.
In 2010 Mr Collins had an audiological assessment which indicated that Mr Collins’ tinnitus is more noticeable in a quiet environment and that Mr Collins reported it occasionally interferes with his ability to sleep and enjoy quiet activities. Mr Holloway, Audiologist, and Dr John Malouf, Supervising Otologist, reported that:[48]
(a)Pure tone audiometry showed “essentially normal hearing levels in both ears” and that his “binaural percentage hearing loss…is 0.2%”; and
(b)if his tinnitus causes increased annoyance Mr Collins may benefit from a formalised tinnitus assessment.
[48] Exhibit 1, T Documents, T 39, pages 200-201, Report of Mr Holloway and Dr Malouf dated 10 September 2010.
In September 2015 Mr Collins complained of recurrent right ear pain for the last 18 months and was referred by Dr Sharifi to Dr Shannon Webber. Dr Sharifi wondered if his right ear pain was referred pain from his right Temporomandibular joint (TMJ).[49]
Other
[49] Exhibit 1, T Documents, T39, page 204, Letter of referral for Mr Collins from Dr Sharifi to Dr Webber.
Liver
In March 2012 an ultrasound indicated that Mr Collins had a mildly hyper-reflective liver parenchyma suggestive of hepatic steatosis.[50]
[50] Exhibit 1, T Documents, T 39, page 186, Ultrasound report dated 30 March 2012.
Conclusion on Impairments
The Secretary accepts that Mr Collins suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[51]
[51] See Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 14 March 2017, para 35.

Given the medical evidence the Tribunal finds that Mr Collins suffered from a Chronic Pain Impairment (relating to his hernia, spinal conditions and upper limb conditions), a Mental Health Impairment and a Tinnitus Impairment for the purposes of section 94(1)(a) at the Qualification Date.
In relation to the liver condition there is insufficient information available for the Tribunal’s consideration.
DO 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 paragraph 94(1)(b) of the Act.[52] They are function based[53] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[54]
[52] Determination, s 4(2) and 5(2)(a).
[53] Determination, s 5(2)(b) and (c).
[54] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Collins’ impairments if:[55]
(a)Mr Collins’ conditions causing the impairments are permanent; and
(b)the impairments that result from the conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[55] 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:[56]
(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.
[56] 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”[57] the following must be considered:[58]
(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.
[57] For the purposes of ss 6(4)(a) and (b) of the Determination.
[58] Determination, see s 6(5).
A condition is “fully stabilised”[59] if:[60]
(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;[61] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[59] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[60] Determination, see s 6(6).
[61] 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 the Tribunal must first consider Mr Collins’ medical history, in relation to the conditions causing the Impairments.[62]
CHRONIC PAIN IMPAIRMENT
[62] Determination, see s 6(2).
Is Mr Collins’ Chronic Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Collins’ Chronic Pain Impairment was permanent during the Qualification Period.[63]
[63] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 14 March 2017, para 39.
In August 2015, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Collins by a Registered Psychologist and a Rehabilitation Counsellor. The JCA concluded that Mr Collins’ Chronic Pain Impairment was fully diagnosed, fully treated and fully stabilised.[64]
[64] Exhibit 1, T Documents, T31, pages 161-162, JCA report dated 10 September 2015.
The Tribunal finds, particularly relying on the report of Dr Dotchin, that Mr Collins’ Chronic Pain Impairment relating to the hands and groin is permanent for the purposes of the Act. However, the evidence is unclear as to why Mr Collins would be experiencing pain in relation to his Spine.
In relation to the hands and groin there is no evidence which suggests that Mr Collins has not undertaken recommended or appropriate reasonable treatment. There is also no evidence that this condition is likely to significantly improve within the next 2 years.
As a result, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Collins’ Impairment has to be assessed against the descriptors[65] (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).[66]
[65] Determination, see ss 3 and 5(3).
[66] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of 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.[67]
[67] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[68]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[68] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[69]
(a)symptoms reported by Mr Collins in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Collins’ local community.
[69] Determination, see s 8.
Which Tables are appropriate are determined by:[70]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[70] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[71]
[71] Determination, see s 10(3).
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.[72]
[72] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[73]
[73] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[74]
[74] Determination, see s 11(5).
Evidence of impact on function
In April 2014 Dr Dotchin, Interventional Pain Physician, reported that:[75]
(a)Mr Collins can manage basic activities of daily living but struggles to do much else;
(b)using his hands, bending down and moving his neck aggravates his pain;
(c)Mr Collins mobilises freely;
(d)Mr Collins had no significant restriction in range of neck movement;
(e)Mr Collins described having ongoing dynamic parathesia in the hands.
[75] Exhibit 1, T Documents, T 29, pages 126 – 127, Report of Dr Dotchin dated 11 April 2014.
In September 2014 Dr Bonev reported that Mr Collins had “mild to moderate” right carpal tunnel conduction delay and that Mr Collins reported:[76]
(a)Numbness and tingling in both hands which exacerbated by leaning on both elbows or driving a car;
(b)A sense of weakness in both hands;
(c)Low-grade numbness in the forearm.
[76] Exhibit 1, T Documents, T 29, pages 131-132, Report of Dr Bonev dated 15 September 2014.
The JCA reported in September 2015 that:[77]
[77] Exhibit 1, T Documents, T31, pages 165-166, JCA report dated 10 September 2015.
(a)Mr Collins said:
(i)he can manage basic activities of daily living but lives with his mother who he relies on to perform daily house chores;
(ii)he is unable to complete light household duties due to a lack of endurance associated with managing the pain;
(iii)he is able to use public transport and is able to drive;
(iv)he is able to attend and walk around a shopping centre;
(v)using his hands aggravates pain;
(vi)he has difficulty manipulating a pen, doing up buttons and reaching forward to grab objects due to reduced sensation and movement in his hands;
(vii)he has difficulty carrying a bag of goods; and
(b)at the assessment Mr Collins was slow to move and had reduced dexterity when signing his name.
Relevant Impairment Table and Impairment Rating
The lack of corroborating medical evidence during the Qualification Period concerning the impact of Mr Collins’ conditions makes the Tribunal’s task more difficult. The Secretary submitted that Table 1 which deals with Physical Exertion and Stamina, would be the most appropriate Table to assign an Impairment Rating given that all that can be done is to take a wholistic view of Mr Collins’ situation.
Mr Collins says he has difficulty bending down and straightening up (which would relate to Table 4 which deals with spinal function). There is no corroborating evidence of this.
While acknowledging Mr Collins’ self-report to the JCA and this Tribunal of how the pain impacts on his ability to function, the Determination does not permit an Impairment Rating to be assigned on self-report alone. There must be corroborating evidence.
Similarly, in relation to Mr Collins’ ongoing pain resulting from his hernia operation, there is no corroborating evidence of how this impacts on his ability to function. Therefore, although Mr Collins self-reports that it effects his ability to urinate at times, no Impairment Rating can be assigned in relation to that impact.
The evidence that is available is that Mr Collins struggles with pain. Table 1 refers to chronic pain as a condition that is often associated with fatigue. Therefore, the Tribunal agrees with the Secretary that Table 1 which deals with functions requiring physical exertion and stamina is appropriate.
Table 2, which deals with upper limb function, is also appropriate.
The Introduction to Table 1 of the Determination provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-Report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
To obtain a 10-point rating under Table 1 the corroborating evidence would need to show that Mr Collins:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b)is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
To obtain a 20-point rating under Table 1 the corroborating evidence would be to show that Mr Collins:
(1) …:
(a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii) use public transport without assistance; or
(iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The Introduction to Table 2 of the Determination provides:
·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.
oFor the purposes of this Table upper limbs extend from the shoulder to the fingers.
To obtain a 5-point rating under Table 2 the corroborating evidence would need to show that Mr Collins:
(1)…… 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.
The Tribunal considers that given the medical and other evidence available an appropriate Impairment Rating for Mr Collins’ Chronic Pain Impairment is 10 points under Table 1 and 5 points under Table 2.
MENTAL HEALTH IMPAIRMENT
Is Mr Collins’ mental health impairment permanent and likely to persist for at least 2 years?
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
Without such evidence no Impairment Rating can be assigned.
The earliest medical evidence before the Tribunal is that of Ms Mellor in October 2015. However, she is not a clinical psychologist. Subsequent diagnoses made by Dr Katz were made more than 6 months after the Qualification Period.
Even if it was accepted that Mr Collins suffered from depression and anxiety during the Qualification Period which was fully diagnosed, the evidence indicates that he had not had all reasonable treatment by that time. Ms Mellor reported that Mr Collins would benefit from an opinion and management from a psychiatrist due to the severity of his depression. He would also benefit from attending a pain management clinic and consulting with a psychologist specialising in chronic pain.[78]
[78] Exhibit 1, T Documents, T 39, pages 187 – 188, Report of Ms Mellor dated 2 October 2015.
Those activities had not taken place during the Qualification Period.
In the circumstances the Tribunal is unable to find that Mr Collins’ Mental Health Impairment was permanent during the Qualification Period therefore no Impairment Rating can be assigned.
TINNITIS IMPAIRMENT
Is Mr Collins’ Tinnitis Impairment permanent and likely to persist for at least 2 years?
The evidence supports a finding that this condition is permanent and that therefore an Impairment Rating can be assigned.
In terms of the impact on Mr Collins’ ability to function, the only evidence is Mr Collins’ self-report in 2010 to an Audiologist and Supervising Otologist. The audiologist and otologist reported that the audiogram results “showed essentially normal hearing levels in both ears”. There is no other corroborating evidence and therefore the Tribunal is unable to assign an Impairment Rating.
WERE MR COLLINS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
Mr Collins does not qualify for DSP because his Impairments have not attracted a minimum Impairment Rating of 20 points as required pursuant to section 94(1)(b) of the Act.
DID MR COLLINS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has concluded that Mr Collins’ permanent Impairments did not attract an Impairment Rating of 20 points during the Qualification Period 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. He did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

..........................[SGD]..............................................
Associate
Dated: 11 April 2018

Date of hearing:
Date Reserved:

14 December 2017

27 March 2018

Applicant: By Telephone

Advocate for the Respondent: Mr Chris Bishop, Special Counsel

Solicitors for the Respondent: Mills Oakley Lawyers

[2018] AATA 855

11 April 2018

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Administrative Law

Statutory Interpretation

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Appeal

Judicial Review

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Statutory Construction

Date of hearing: Date Reserved:	14 December 2017 27 March 2018
Applicant:	By Telephone
Advocate for the Respondent:	Mr Chris Bishop, Special Counsel
Solicitors for the Respondent:	Mills Oakley Lawyers