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

[2020] AATA 3853

Cominos and Secretary, Department of Social Services (Social services second review) [2020] AATA 3853 (1 October 2020)

Division:GENERAL DIVISION

File Number:2019/8705          

Re:Mr Constantinos Cominos  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:B. Pola, Senior Member

Date:1 October 2020

Place:Brisbane

Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division dated 3 December 2019.

...............................[SGD].............................................

Senior Member B.Pola

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether condition is fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Qualification Period –  decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

Social Security Act 1991 (Cth)

Social Security (Administration Act) 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409

Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133

Faulkner and Comcare [2007] AATA 1541

Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404

REASONS FOR DECISION

B. Pola, Senior Member
1 October 2020

BACKGROUND

1. On 15 January 2019 the Applicant, Mr Constantinos Cominos, lodged a claim for the Disability Support Pension (‘DSP’) with the Department of Human Services (the ‘Agency’)[1].

   [1]      Exhibit 1, T16, pages 145 to 147.

2. On 6 February 2019, the Applicant was advised by the Agency that their claim for the DSP was rejected[2].

   [2]      Exhibit 1, T19, pages 161 and 162.

3. The decision to reject the Applicant’s claim for the DSP was again affirmed by an Authorised Review Officer (‘ARO’) after an internal review by the Agency on 16 September 2019[3].

   [3]      Exhibit 1, T22, pages 175 to 178.

4. The Applicant applied to the Social Services and Child Support Division (‘SSCSD’) of the Administrative Appeals Tribunal (the ‘Tribunal’) to review the Department’s decision to reject their claim for the DSP, and on 3 December 2019 the SSCSD of the Tribunal affirmed the decision to reject the Applicant’s claim for the DSP[4].

   [4]      Exhibit 1, T2, pages 7 to 12.

5. The Applicant applied to the Tribunal for a second review of this decision on 31 December 2019[5].

   [5]      Exhibit 1, T1, pages 1 and 2.

6. The Tribunal received consent from both the Applicant and the Respondent, agreeing that this matter could be adequately determined in the absence of the parties[6]. The Tribunal agreed to review this reviewable decision in accordance with s34J of the Administrative Appeals Tribunal Act 1975 (Cth) (the ‘AAT Act’) by considering the documents which had been submitted to the Tribunal. The Tribunal has considered these documents in reaching its decision, and these documents are outlined in the Exhibit Register in Annexure 1 of these reasons.

   [6]      Written consent from the Applicant was received via email to the Tribunal on 7 August 2020 at 5.54pm, and from the Respondent on 7 August 2020 at 1.48pm.

   JURISDICTION

7. This is an application to review a decision of the SSCSD of the Tribunal which affirmed a decision to reject the Applicant’s claim for the DSP.

8. The Applicant’s claim of 15 January 2019 has been reviewed in accordance with s135 of the Social Security (Administration Act) 1999 (Cth) (the ‘Administration Act’) by an ARO, and subsequently reviewed by the SSCSD of the Tribunal.

9. In accordance with s179(1) of the Administration Act, the Tribunal has jurisdiction to hear the Applicant’s DSP claim of 15 January 2019.

   ISSUES

10. The issue before the Tribunal for consideration is whether the Applicant was qualified to receive the DSP in relation to their claim lodged on 15 January 2019, and ending 13 weeks later on 16 April 2019[7].

    [7]      The Qualification Period is discussed in later paragraphs of this Decision.

11. For the purposes of this application and the evidence submitted and provided orally to the Tribunal, it is clear the Applicant had impairments during the Qualification Period in accordance with s94(1)(a) of the Social Security Act 1991 (Cth) (‘the Act’). Indeed, the Respondent accepted that the Applicant had impairments for the purposes of s94(1)(a)[8].

    [8]      Exhibit 2, page 6, paragraph 36.

12. The issue for the Tribunal to resolve in respect of the Applicant’s claim for DSP is:

    (a)whether the Applicant’s impairments attract 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 within the Qualification Period; and

    (b)if so, did the Applicant have a continuing inability to work?

    RELEVANT LEGISLATIVE PROVISIONS

13. The medical qualification criteria regarding eligibility for DSP are set out in paragraphs (a), (b) and (c) of s94(1) of the Act:

    94      Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (a)    the person has a physical, intellectual or psychiatric impairment; and

    (b)    the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)    one of the following applies:

    (i)the person has a continuing inability to work;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    …

14. To be medically qualified for a DSP, a person must therefore have a physical, intellectual or psychiatric impairment that has a rating of 20 points or more under the Impairment Tables; and a continuing inability to work which, in some circumstances, includes participation in a program of support.

15. Section 26(1) of the Act provides that “[t]he Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

16. It is the Tribunal’s role to stand in the shoes of the original decision-maker[9] and determine whether the decision was the correct or preferable one on the material before the Tribunal[10]. Given this, the Tribunal must make its decision in accordance with the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (referred to as the ‘Determination’ in these reasons), which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

    [9]      Faulkner and Comcare [2007] AATA 1541 [27].

    [10]     Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 per Bowen CJ and Deane J.

17. Section 6 of the Determination provides that “[t]he impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person”[11]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[12].

    [11]     Section 6(1) of the Determination.

    [12]     Section 6(2) of the Determination.

18. An impairment rating may only be assigned to an impairment if[13]:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than 2 years.

    [13]     Section 6(3) of the Determination.

19. Further, for a condition to be considered permanent under s6(3)(a) of the Determination, the condition must also[14]:

    ·be fully diagnosed by an appropriately qualified medical practitioner; and

    ·be fully treated; and

    ·be fully stabilised; and

    ·be more likely than not, in light of available evidence, to persist for more than 2 years.

    [14]     Section 6(4) of the Determination.

20. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered[15]:

    (a)whether there is corroborating evidence of the condition; and

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next 2 years.

    [15]     Section 6(5) of the Determination.

21. A condition is considered fully stabilised if[16]:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [16]     Section 6(6) of the Determination.

22. Reasonable treatment is a treatment that[17]:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person.

    [17]     Section 6(7) of the Determination.

23. Section 6(8) of the Determination provides that “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. While s6(9) of the Determination sets out circumstances to be considered in relation to pain.

24. Sections 7 through to 11 of the Determination provide guidance as to how Impairment Tables should be used to assess information and evidence, and how to assign impairment ratings.

25. In particular, s8(1) of the Determination provides that “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

26. While s11(1)(c) of the Determination provides that in assigning an impairment rating “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

27. As previously detailed in the earlier reasons of this decision, s94(1)(c)(i) of the Act states that in order to qualify for DSP, a person must have a “continuing inability to work”. Section 94(2) of the Act requires that:

    (2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

28. A severe impairment is defined in s94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

29. Section 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

30. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (‘the Participation Determination’) came into effect from 3 January 2015, and sets out the requirements for active participation for those people required to demonstrate they have actively participated in a program of support (‘PoS’).

    QUALIFICATION PERIOD

31. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for DSP is the date on which the claimant becomes qualified[18].

    [18]     Part 2, clause 4(1)(d) of the Administration Act.

32. For the purposes of this decision, the day which the Applicant’s claim for DSP was lodged with Centrelink was 15 January 2019[19], and concluded 13 weeks after that day. The Tribunal finds the 13 week period ended on 16 April 2019.

    [19]     Exhibit 1, T16, pages 145 to 147.

33. This means that for a claim to be successful, the person must be qualified for DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered, however only if it is referable to the Applicant’s condition during the Qualification Period[20].

    CONSIDERATION

    [20]     Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404 [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 [31].

    Section 94(1)(a) of the Act (Physical, intellectual or psychiatric impairment)

34. In the Applicant’s online claim form to Centrelink of 15 January 2019, the Applicant listed the following eight disability and medical conditions[21]:

    “… Chronic Pain. Condition start date 18/08/2010…

    … Chronic Fatigue. Condition start date 01/01/2015…

    … Spine and Neck Degeneration. Condition start date 01/01/2010…

    … Brain Fog. Condition start date 11/05/2015…

    … Fibromyalgia. Condition start date 10/05/2016…

    … Diverticolotis. Condition start date 23/05/2016…

    … Osteoarthritis. Condition start date 15/08/2017…

    …Hiatus Hernia. Condition start date 11/01/2016…”

    [21]     Exhibit 1, T16, pages 145 and 146.

35. Regarding the Applicant’s chronic pain related conditions and chronic fatigue condition, the Tribunal refers to s6(9) of the Determination, which stipulates the following in relation to assessing pain:

    “Assessing functional impact of pain

    (9)There is no Table dealing specifically with pain and when assessing pain the following must be considered:

    (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

    (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

    (c) whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).”

36. In the absence of medical evidence from a pain management specialist, the Tribunal has treated the Applicant’s chronic pain related conditions and chronic fatigue condition as the symptoms of other conditions and not conditions in and of themselves. The Tribunal notes the Respondent has made this contention[22].

    [22]     Exhibit 2, page 8, paragraph 40.

37. In relation to the Applicant’s listed “Diverticolotis” condition (which the Tribunal has taken to be Diverticulitis), the only evidence before the Tribunal regarding this was a gastroscopy and colonoscopy undertaken by the Applicant on 22 March 2017. The Operation Surgeon Report states that in relation to the colonoscopy, “Few small diverticulae in sigmoid colon, otherwise normal colonoscopy”[23].

    [23]     Exhibit 1, T17, page 149.

38. Further the Applicant has listed a “Hiatus Hernia” condition for consideration as part of this application, but there is an absence of supporting medical evidence regarding this condition.

39. In the absence of submitted medical evidence regarding the Applicant’s listed conditions of “Diverticolotis” and “Hiatus Hernia”, the Tribunal has been unable to consider either of these conditions.

40. The remaining listed conditions by the Applicant in their claim for the DSP on 15 January 2019 have been incorporated in the impairments identified by the Tribunal below.

41. The Tribunal is satisfied after review of the evidence before it that the Applicant suffered impairments during the Qualification Period pursuant to s94(1)(a) of the Act, a point which was accepted by the Respondent[24]. On review of the evidence before the Tribunal, the Tribunal finds the following impairments relevant to this application:

    (a)Auto-immune condition;

    (b)Severe small fibre neuropathy condition; and

    (c)Spinal condition.

    Section 94(1)(b) of the Act (Is a person’s impairment 20 points or more under the Impairment Tables)

    [24]     Exhibit 2, page 6, paragraph 36.

42. The Tribunal will consider each impairment identified in the abovementioned paragraph in accordance with s94(1)(b) of the Act, in particular whether they meet the relevant provisions contained within the Determination prior to or during the Qualification Period for this application.

    (a)Auto-immune condition

43. The Applicant has submitted the following relevant medical evidence in relation to their auto‑immune condition:

    (a)A Medical Report for the Disability Support Pension, completed by Dr Sameer Pabalkar, the Applicant’s treating General Practitioner, on 2 April 2016 after examining the Applicant on 1 April 2016. Dr Pabalkar listed, “? Fibromyalgia”, as a medical condition of the Applicant with a date of onset as of “3/8/2015”, with “Painkillers (NSAID)” listed as treatment from “20/2/15”. The report further stated that the Applicant had not been referred to a specialist for this condition, and that future planned treatment would include “Painkiller. Physiotherapy, counselling later date”. Dr Pabalkar indicated that over the next two years that the condition was expected to, “Fluctuate” and “Remain unchanged”, and that “Pain can wax and wane over periods of time”[25].

    [25]     Exhibit 1, T5, pages 82 to 93.

    (b)A Job Capacity Assessment Report dated 28 June 2016, states the following in relation to the Applicant[26]:

    [26]     Exhibit 1, T6, pages 95 and 96.

    “…Initially the customer was diagnosed with Ross River Fever and was experiencing joint pain (more than 20 years ago). The customer was prescribed a variety of Non-Steriodal Anti-Inflammatory (NSAIDs) over the years for the joint pain he was experiencing. This is confirmed by the Medical Report by Dr Pabalkar (1/4/16), these caused the customer severe stomach irritations and he found them hard to tolerate, even with Somac the customer reported ongoing stomach upset when taking NSAIDs. He was then prescribed a Norgesic patch which is a slow release Narcotic analgesia. This is corroborated by the Medical Report completed by Dr Pabalkar (1/4/16). The customer states that the main symptoms he has been experiencing is joint pain – mainly in the knees but the customer states he has global pain affecting most joints. The customer states that all blood tests over the years have been positive for Ross River Fever and he would experience ‘flare ups’ every 6 months. The customer states that during flare ups, the pain is so bad he can barely walk.

    The customer states he has a “fuddled” mind and severe difficulty concentrating when on the Norgesic patch which he was prescribed for pain relief. The patches do help with pain relief but cause the customer significant cognitive impairment according to the customer’s reported symptoms.

    Customer reports impaired sleep due to pain in knees affecting customer at night time. The customer reports a past history of knee pain and X Rays showing some arthritis in both knees and the spine.

    …

    The condition of Fibromyalgia is listed as “? Fibromyalgia” and the diagnosis is listed as presumptive on the Medical Report by Dr Palkabar (1/4/16) with no further support from a specialist’s opinion. Therefore, due to an incomplete / presumptive diagnosis, and no engagement with a specialist for treatment and management, this condition cannot be considered Permanent, and is not Fully Diagnosed, Treated or Stabilised.”

    (c)A referral from Dr Pabalkar on 18 July 2016 to Dr Alex Klestov, Consultant Rheumatologist [27].

    [27]     Exhibit 1, T8, pages 101 and 102.

    (d)A letter from Dr Klestov with a faxed date of 1 September 2016, stating the following in relation to the Applicant, “On examination pleasant, clinically euthyroid, weight 110kg. Right shoulder range of movement limited to approximately 80% normal with pain at the extremes of range of movement. No evidence of synovitis or signs of Psoriasis. There was no recent pathology available to me. I thought the above presentation was suggestive of evolving Generalised Osteoarthritis with some inflammatory features. Irritable bowel syndrome and Psoriatic arthropathy also warrant consideration”[28].

    [28]     Exhibit 1, T17, page 150.

    (e)A letter from Dr Paul Sandstrom, Neurologist, of 3 October 2018, which states:

    “By way of introduction, [the Applicant] suffers with a post viral disorder including severe fatigue and lassitude, “brain fog”, poor physical performance, temperature dysregulation, reduced concentration abilities, and significant nocturnal pruritius in addition to impaired visual acuity. Additionally, he suffers with symptoms pertaining to a severe small fibre neuropathy. In my opinion, the severity of his constitutional and neurologic symptoms is such that he is unable to pursue any form of employment either on a full time or part time basis…”[29].

    [29]     Exhibit 1, T10, page 104.

    [Tribunal insertions for clarity]

    (f)An Employment Services Assessment Report dated 26 October 2018, which largely repeats the remarks contained in the Job Capacity Assessment Report dated 28 June 2016, that in relation to the Applicant’s “Fibromyalgia” condition, “The GP has discussed seeing a specialist with customer however the customer has declined this as he doesn’t believe there is anything further to gain from seeing a Rheumatologist, in addition the customer states that cost is a prohibitive factor to seeking Specialist advice”[30]. The report confirmed the same finding in relation to the “Fibromyalgia” medical condition, that, “… due to an incomplete / presumptive diagnosis, and no engagement with a specialist for treatment and management, this condition cannot be considered Permanent, and is not Fully Diagnosed, Treated or Stabilised”.

    [30]     Exhibit 1, T12, pages 107 and 108.

    (g)A further letter from Dr Sandstrom of 18 November 2018, which states[31]:

    [31]     Exhibit 1, T17, page 153.

    “By way of introduction, [the Applicant] suffers with substantial problems which, probably represent an underlying autoimmune disease. In particular, he suffers with severe fatigue and lassitude, severe pain involving many portions of his body which worsen during the nocturnal hours, a sensation of brain “fogging”, poor physical capacity and endurance, temperature dysregulation, reduced concentration abilities, dysphagia for solids, and further, he suffers with severe polyarthralgia particularly involving the small joints of both hands and the knee joint region.

    In terms of investigations, MR imaging reveals evidence of severe spondylosis of the cervical and lumbar regions and further, pertinent serology is strongly suggestive of evolving systemic lupus erythematosus (SLE). At a neurologic level, he suffers with a severe small fibre neuropathy which imparts the severe pain disorder.

    In my opinion, the severity of his constitutional and neurologic symptoms is of such magnitude that he is unable to pursue any form of employment either on a full time or part time basis and in my opinion, the process is unlikely to alter significantly in the future. At this stage, it is improbable that any form of therapy will be able to assist [the Applicant’s] symptoms and a slow deterioration in many of his problems is quite feasible. Certainly, the condition is a permanent one. In terms of functional capacity, according to the functional scales, in my opinion:

    1. Table 1, No. 20, both (a) and (b) descriptions apply

    2. Table 2, No.10, (a), (b), (c), (d), and (f) apply
    3. Table 3, No.10, 1(a) is applicable
    4. Table 4, No.10, 1(a) and (b) are applicable
    5. Table 7, No.20, ((a), (b), (c), (d), (e), and (f) are applicable
    6. Table 8, No. 5, 1(a) and (b) are applicable
    7. Table 10, No.20, 1(a), (b) and (c) are applicable.”

    [Tribunal insertions for clarity]

    (h)A Treating Doctor’s Report, undertaken by Dr Haidi Messiah on 3 January 2019, stating that the Applicant has been diagnosed with “chronic pain”, and that the history of this condition was, “Autoimmune disease (SLE). Severe small fibre neuropathy. Cervical/lumbar spondylosis”. Dr Messiah further stated that treatment undertaken in past included, “neurology. Physiotherapy. Medication ex (lyrica)”, and that future planned treatment would include, “neurology follow up (life long).  chronic management”[32].

    [32]     Exhibit 1, T13, pages 112 to 140.

1. The Tribunal notes that an additional medical report was submitted by the Applicant from Dr Messiah which is dated 29 November 2019[33]. This report post-dates the Qualification Period and for reasons already outlined by the Tribunal, it cannot be afforded weight, as it is not referrable to the Applicant’s condition during the Qualification Period.

   [33]     Exhibit 1, T24, pages 181 to 184.

2. On the available evidence outlined by the Tribunal in the preceding paragraphs of these reasons, the Tribunal is of the view that the Applicant’s auto-immune condition has not been fully diagnosed. There are multiple references throughout the medical evidence from treating medical practitioners where the diagnosis given to the Applicant is qualified, and cannot be said to be fully diagnosed in accordance with the requirements of the Determination. The Tribunal refers the following in particular:

   (i)In April 2016, Dr Pabalkar, the Applicant’s treating General Practitioner referred to the auto-immune condition as “? Fibromyalgia”.

   (ii)In September 2016, Dr Klestov thought the Applicant’s condition was, “suggestive of evolving Generalised Osteoarthritis with some inflammatory features. Irritable bowel syndrome and Psoriatic arthropathy also warrant consideration”.

   (iii)In November 2018, Dr Sandstrom thought the Applicant’s condition, “… probably represent an underlying autoimmune disease”.

3. In the absence of a definitive diagnosis of the Applicant’s auto-immune condition in accordance with the requirements of the Determination prior to or during the Qualification Period for this application; the Tribunal is unable to assign an Impairment Rating for the Applicant’s auto-immune condition.

   (b)  Severe small fibre neuropathy condition

4. The Applicant has submitted the following relevant medical evidence in relation to their severe small fibre neuropathy condition:

   (a)The Tribunal refers to the letter from Dr Sandstrom of 3 October 2018, outlined in earlier reasons, which states the following in relation to the Applicant’s severe small fibre neuropathy condition:

   “… Additionally, he suffers with symptoms pertaining to a severe small fibre neuropathy. In my opinion, the severity of his constitutional and neurologic symptoms is such that he is unable to pursue any form of employment either on a full time or part time basis…”[34].

   (b)Again, the Tribunal refers to the further letter from Dr Sandstrom of 18 November 2018, previously outlined in earlier reasons which states in relation to the Applicant, “… At a neurological level, he suffers with a severe small fibre neuropathy which imparts the severe pain disorder” [35].

   [34]     Exhibit 1, T10, page 104.

   [35]     Exhibit 1, T17, page 153.

5. The Tribunal is satisfied based on Dr Sandstrom’s letters referred to in the above paragraphs that the Applicant’s severe small fibre neuropathy condition has been fully diagnosed. The Tribunal notes that Dr Sandstrom’s diagnosis of this condition was informed by investigations undertaken through medical imaging, which he refers to in his letter of 18 November 2018.

6. Aside from these two references to Applicant’s severe small fibre neuropathy condition from Dr Sandstrom, there is no further corroborating medical evidence submitted from the Applicant, from an appropriately qualified medical practitioner, prior to or during the Qualification Period for this application which indicates the following in relation to this condition:

   (a)a prognosis;

   (b)whether the condition had been treated and is stabilised;

   (c)confirmation of whether the condition is permanent;

   (d)past or current recommended treatments; or

   (e)whether the condition was more likely than not to exist for more than two years.

7. Given the lack of additional medical evidence substantiating the above, the Tribunal is of the view that the Applicant’s severe small fibre neuropathy condition, cannot for the requirements of the Determination be considered fully treated and fully stabilised. Therefore, the Tribunal is unable to assign an Impairment Rating for the Applicant’s severe small fibre neuropathy condition.

   (c) Spinal condition

8. The Applicant has submitted the following relevant medical evidence in relation to their spinal condition and osteoarthritis:

   (a)Referred to in earlier reasons but repeated by the Tribunal for reference, a letter from Dr Klestov with a faxed date of 1 September 2016, stating the following in relation to the Applicant, “… Right shoulder range of movement limited to approximately 80% normal with pain at the extremes of range of movement. No evidence of synovitis or signs of Psoriasis. There was no recent pathology available to me. I thought the above presentation was suggestive of evolving Generalised Osteoarthritis with some inflammatory features. Irritable bowel syndrome and Psoriatic arthropathy also warrant consideration”[36].

   (b)A medical imaging report undertaken by Dr S Joshi, Radiologist on 27 July 2016, stating the following in relation to the Applicant’s right shoulder, “Subscapularis and supraspinatus tendinopathy with a 6 x 3 mm partial articular surface tear anteriorly at the footprint of supraspinatus tendon. Subacromial bursitis with bursal bunching on abduction and painful arc. Acromioclavicular osteoarthritis”. In relation to the Applicant’s right wrist and elbow, the report stated, “Mild osteoarthritis seen in the first carpometacarpal joint. No further focal bone or joint abnormality seen”[37].

   (c)A medical imaging report undertaken by A. Butler, Radiologist on 5 March 2018, stating, “Degenerative changes as described”, in relation to a CT scan undertaken on the Applicant’s lumbar spine (and outlining various degenerative changes to the Applicant’s lumbar spine)[38].

   (d)A medical imaging report undertaken by Dr J Labuscagne, Radiologist, on              1 August 2018, stating in relation to the Applicant’s spine, “Cervical, dorsal and lumbar degenerative change is seen. Exit foraminal narrowing at the C5/6 and C6/7 levels and lateral recess narrowing at the L3/4, L4/5 and L5/S1 levels must be correlated clinically”[39].

   (e)A medical certificate from Dr Messiah of 17 October 2018, diagnosing the Applicant with, “spinal vertebral degeneration”, and that the condition was “Permanent (likely to persist for 2 years or more)”, and that past treatment was, “been on painkiller, physio”, with current treatment stated as, “seen neurologist and lyrica, doluxitine”, with planned treatment stated as, “continue neurology management”[40].

   (f)Further medical certificates from Dr Messiah dated 5 March 2018, 8 May 2018, 7 August 2018, 19 November 2018 and 30 January 2019 were submitted with similar findings in relation to the Applicant’s spinal condition[41]. Medical certificates were submitted for 24 June 2019, 24 September 2019 and 19 December 2019, but as these post-date the Qualification Period, for reasons already outlined by the Tribunal, they cannot be afforded weight as it is not referrable to the Applicant’s condition during the Qualification Period[42].

   [36]     Exhibit 1, T17, page 150.

   [37]     Exhibit 1, T17, page 154.

   [38]     Exhibit 1, T17, page 155.

   [39]     Exhibit 1, T17, page 157.

   [40]     Exhibit 1, T11, page 105.

   [41]     Exhibit 1, T25, pages 188 to 192.

   [42]     Exhibit 1, T25, pages 193 to 195.

9. The Tribunal is satisfied based on the medical evidence submitted from Dr Messiah (which is supported through submitted medical imaging reports outlined in these reasons) that the Applicant’s spinal condition was fully diagnosed prior to the Qualification Period for this application. The Tribunal notes the Respondent accepts that the Applicant’s spinal condition was fully diagnosed[43].

   [43]     Exhibit 2, page 9, paragraph 49.

10. In relation to whether the Applicant’s spinal condition is fully treated and fully stabilised during the Qualification Period, there is an absence of medical evidence to confirm whether the Applicant’s spinal condition had been optimally treated prior to or during the Qualification Period for this application. This is particularly so as there is evidence which post-dates the Qualification Period for this application stating that the Applicant was receiving treatment for his conditions (such as “physio”) [44]. Therefore, the Tribunal is not satisfied based on the available medical evidence that the Applicant’s spinal condition was fully treated and fully stabilised prior to or during the Qualification Period in accordance with the Determination.

    [44]     Exhibit 1, T25, pages 193 to 195.

11. Given the Applicant had undertaken physiotherapy treatment, and been under “neurology management” as outlined by Dr Messiah in medical certificates, reports from these treating professionals could have assisted the Tribunal in understanding whether the Applicant’s condition had been optimally treated and stabilised prior to or during the Qualification Period for this application.

12. For reference, the Tribunal refers to the introduction to Table 4 – Spinal Function within the Determination, which stipulates the following in relation to medical evidence[45]:

    [45]     The Determination, page 20.

    “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:

    oa report from the person’s treating doctor;

    oa 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);

    oa 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.”

    [Tribunal underlining for emphasis]

13. Given the lack of additional medical evidence outlined in the reasons above, the Tribunal is of the view that the Applicant’s spinal condition cannot for the requirements of the Determination be considered fully treated and fully stabilised. Therefore, the Tribunal is unable to assign an Impairment Rating for the Applicant’s spinal condition.

    Summary

14. The Tribunal has found that none of the Applicant’s impairments were able to be assigned an Impairment Rating in accordance with the requirements of the Determination.

15. It follows that none of the Applicant’s impairments attract more than 20 points under the Impairment Tables during the Qualification Period, and therefore they do not satisfy s94(1)(b) of the Act.

16. Accordingly, there is no need to consider whether the Applicant met the requirements of s94(1)(c) of the Act.

    (a)

    DECISION

17. Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Security and Child Support Division dated 3 December 2019.

    I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ……………[SGD]………………

    Associate

    Dated: 1 October 2020

    Hearing:  Heard of the papers

    Decision Reserved:               1 September 2020

    Applicant:  Mr Constantinos Cominos

    Solicitor for Respondent:       Mr Chris Murphy
      (Department)

    “ANNEXURE 1 – EXHIBIT REGISTER”

Exhibit

Number

Description

  1

Section 37 T Documents, pages 1 to 233, received 3 February 2020

   2

Respondent’s Statement of Facts Issues and Contentions, pages 1 to 13, received 8 June 2020, with attachments:

·     Attachment A: Letter of Mya Haines dated 17 January 2020 (also provided by the Applicant on 26 February 2020)

·       Attachment B: Submission of the Applicant dated 25 February 2020 (also provided by the Applicant on 26 February 2020)

   3

Applicant’s submission by email, received 9 June 2020