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

[2017] AATA 1023

Coutts and Secretary, Department of Social Services (Social services second review) [2017] AATA 1023 (31 May 2017)

Division:GENERAL DIVISION

File Number:  2016/5975

Re:Melanie Coutts

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:31 May 2017

Date of written reasons:        5 July 2017

Place:Brisbane

The Tribunal affirms the decision under review.

....................................[sgd]...................................

Senior Member T. Tavoularis

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – diabetes, obesity, lower back pain, peripheral neuropathy, osteochondritis dissecans (both ankles), and other conditions -  Applicant found to have 15 impairment points - decision under review is affirmed

LEGISLATION

Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

CASES

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

SECONDARY MATERIALS

The Guide to Social Security Law

WRITTEN REASONS FOR DECISION

Senior Member T. Tavoularis

5 July 2017

INTRODUCTION

1. On 30 December 2015, Melanie Coutts (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing her medical conditions as “Type II Diabetic (insulin dependent since 1989), Diabetic Neuropathy, Lower Back Pain with degenerative Spondyloarthropathy, Carpal Tunnel Syndrome (severe in Right hand & moderate in left hand), osteochrondritis dissecans (both ankles), Hypertension, Hyperlipidaemia, Depression, GORD, Obstructive Sleep Apnea, & currently undergoing laser surgery (both eyes) due to diabetes complications (first laser done in 2003).”[1]

   [1] Exhibit 3, T-documents, T6, DSP Claim form, p 96.

2. To support her claim for DSP the Applicant provided the following medical evidence:

   ·A medico-legal report by Dr Douglas, consultant Occupational Physician dated 22 December 2014;[2] and

   ·Report by Dr McNabb, consultant Neurologist dated 26 October 2013.[3]

   [2] See Exhibit 3, T-documents, T7, p 103-117.

   [3] See Exhibit 3, T-documents, T7, p 118.

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim on 30 December 2015, or within 13 weeks thereafter, that being to 29 March 2016. 

   HISTORY OF THE MATTER

4. As mentioned, the Applicant lodged her claim for DSP with Centrelink in writing on 30 December 2015, including the two abovementioned medical reports. 

5. On 3 March 2016, the Applicant attended an assessment with a Job Capacity Assessor (“JCA”) who subsequently produced a report dated 8 March 2016.[4]

   [4] Exhibit 3, T-documents, T9, pp 125-133.

6. The JCA found the only conditions which were fully diagnosed, treated and stabilised and attracted an impairment rating were the Applicant’s morbid obesity and lower limb deficiencies, which were assessed as warranting 5 points under Table 1 (Functions requiring Physical Exertion and Stamina) and 10 points under Table 3 (Lower Limb Function) respectively.

7. The JCA assessed the Applicant’s following conditions as verified by medical evidence, and fully diagnosed, treated and stabilised. Further, the JCA thought the conditions did not attract an impairment rating in that 0 (zero) points were assigned to each of the following:

   ·Diabetes;  

   ·Hypertension;

   ·Circulatory System;

   ·Oesophageal Disorder; and

   ·Respiratory Disorder.

8. The JCA assessed that the Applicant’s shoulder and upper arm disorder, and her spinal disorder had been diagnosed but were not yet fully treated and stabilised. Therefore they could not be assigned any impairment points.

9. Likewise, the JCA opined that although the Applicant’s depression was verified by medical evidence, she had not seen a psychiatrist or clinical psychologist and therefore it could not be considered fully diagnosed, and no impairment rating could be assigned.

10. The total impairment rating recommended by the JCA for all reported conditions was 15 points.

11. Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as 8 - 14 hours per week with a predicted capacity of 15 - 22 hours per week within 2 years with intervention.[5]

    [5] See Exhibit 3, T-documents, T9, p 132.

12. On 2 April 2016, the Department wrote to the Applicant advising that her application for DSP had been rejected on the basis she did not have a rating of 20 or more impairment points.[6]

    [6] See Exhibit 3, T10, p 134.  

13. The Applicant requested Centrelink review that decision, and on 15 April 2016 she also filed a full patient summary by Dr King dated 7 April 2016 and a medical certificate from Dr King dated 7 April 2017.

14. On 16 May 2016 an Authorised Review Officer (“ARO”) affirmed the decision under review.[7] The ARO upon review of the JCA report and additional other relevant evidence provided to the Department, made the following findings of fact:

    [7] Exhibit 3, T-documents, T12, pp 139-147.

    “Findings of Fact

    After careful consideration of the evidence, I have made these key findings:

    ·You have the following permanent conditions: diabetes, neuropathy of both feet, hypertension, hyperlipidaemia, reflux and obstructive sleep apnoea.

    ·Your conditions of morbid obesity, carpal tunnel and lower back pain with degenerative spondyloarthropathy are not accepted as being permanent as they have not been fully treated and stabilised.

    ·Your condition of depression cannot be considered permanent as it has not been fully diagnosed, treated and stabilised.

    ·Your total impairment rating is 10 points.

    ·You do not have an impairment rating of 20 points or more.

    ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.”[8]

    [8] See Exhibit 3, T-documents, T12, at p 140.

15. On 26 July 2016, the Applicant lodged an Application for Review with the Social Services and Child Support Division of this Tribunal (“the SSCSD”).[9]

    [9] Exhibit 3, T-documents, T2, p 5 and T16, p 155.

16. In support of her Application for Review the Applicant had also produced two additional medical certificates from her General Practitioner, Dr Borlado (one dated 1 July 2016 and the other undated).

17. On 14 October 2016, at first review, the SSCSD affirmed the decision under review but did not agree with the ARO as to assessment of impairment points. Instead, the SSCSD agreed with the JCA’s assessment that the Applicant’s conditions should attract a total impairment rating of 15 points. This was calculated as being: 10 points under Table 3 for her lower limb conditions, and 5 points under Table 1 for conditions involving physical exertion and stamina.[10]

    [10] Exhibit 3, T-documents, T2, pp 4 -11.

18. On 3 November 2016, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).[11]

    [11] See Exhibit 3, T-documents, T1 pp 1-3.

19. For the purpose of today’s hearing, the Applicant has provided the following additional evidence:

    ·A letter from Dr Nandi (Endocrinologist) dated 20 December 2016;[12]

    ·Medical Certificate and Report of Dr Borlado (GP) dated 21 February 2017;[13]

    ·A further medical certificate from Dr Borlado (GP) dated 21 April 2017;[14]

    ·A patient summary generated on 26 May 2017;[15] and

    ·A Report from Mr Vic Rodney (Clinical Psychologist) dated 10 January 2017.[16]

    [12] See Attachment 1 to Respondent’s Statement of Facts and Contentions (“SFIC”).

    [13] See Attachment 1 to Respondent’s SFIC.

    [14] See Exhibit 4.

    [15] See Exhibit 4.

    [16] See Exhibit 5.

20. Before I go any further, I feel compelled to say something about the lateness of the delivery of the further medical certificate / report of Dr Borlado dated 21 April 2017. I consider that this report was provided quite late in terms of the context of this hearing. I note for the record that the Respondent has not had an opportunity to properly respond to this report of Dr Borlado of the 21 April 2017. I further note for the record that this particular report of Dr Borlado does not speak to the relevant period, which I must take into account for the purposes of this decision. I will define the ‘Relevant Period’ later in these Reasons. Finally, with reference to this report from Dr Borlado dated 21 April 2017, I find there is a deficiency in his methodology in terms of how he has purported to apply the relevant Impairment Table he considers relevant for the purposes of his report. For the reasons I have just outlined, I shall therefore allocate little weight to the report of Dr Borlado dated 21 April 2017.  

    LEGISLATIVE FRAMEWORK

21. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are:

    (i)that the Applicant has a physical, intellectual or psychiatric impairment;

    (ii)that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and

    (iii)that the Applicant has a continuing inability to work.

22. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 30 December 2015). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[17]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 30 December 2015 and 29 March 2016 (“the Relevant Period”).

    [17] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

23. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.  This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    “the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In  many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”.  [my underlining]

24. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[18] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[19] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[20]

    [18] See s 26(1) of the Act.

    [19] See s 5(2) of the Determination.

    [20] See s 6(1) of the Determination.

25. Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[21] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[22]

    [21] See s 6(3) of the Determination.

    [22] See s 6(4) of the Determination.

26. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:  whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[23]

    [23] See s 6(5) of the Determination.

27. A condition is “fully stabilised” if:

    (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.[24]

    [24] See s 6(6) of the Determination.

28. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]

    [25] See s 6(7) of the Determination.

29. An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings.  If an impairment is considered as falling between two 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.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[26]

    [26] See s 11(1) of the Determination.

30. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

    31.The issues for me to consider are:

    (i)whether, during the Relevant Period, that is 30 December 2015 until 29 March 2016, the Applicant had a physical, intellectual or psychiatric condition(s) which was fully diagnosed, treated and stabilised;

    (ii)whether the Applicant’s condition(s) warranted an impairment rating of 20 points or more under the Impairment Tables; and, if so

    (iii)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and

    (iv)whether the Applicant has a continuing inability to work.

    CONSIDERATION

    Did the Applicant at the Relevant Period have an impairment that was ‘permanent’ and attracted 20 points or more under the Impairment Tables?

31. The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy s 94(1)(b) or (c) of the Act.[27]

    [27] See Exhibit 2, Respondent’s Statement of Facts and Contentions, [4.41].

32. For the purposes of this decision, I accept that the Applicant had an impairment(s) for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of impairment points by reference to each of the Applicant’s various conditions as they are stated in the material. I have identified six conditions or six groups of conditions that will form the basis of my consideration.

33. The first of those conditions is the peripheral neuropathy or osteochondritis condition, more commonly referred to as lower limb function/difficulty. An initial point to note with reference to this first condition is the Respondent accepts that it is fully diagnosed, treated and stabilised during the Relevant Period. The Respondent, in my view, correctly cites three individual medical reports which confirm this finding that a condition has been fully diagnosed, treated and stabilised. Firstly, the report of Dr Douglas dated 22 December 2014, secondly, the JCA Report dated 8 March 2016 and, thirdly, the report of Dr Borlado dated 21 February 2017.

34. The next question is what kind of impairment rating should this condition attract? In order to determine that question, it is necessary to have regard to the relevant descriptors for 10 and 20 points that appear under Table 3 of the Impairment Tables. I make reference to the descriptors appearing under the moderate functional impact category of Table 3 which involves 10 points. With reference to this particular group of descriptors - the 10 point descriptors - I find as follows:

35. The first applicable descriptor in this 10 point section of Table 3 is descriptor (1). It provides as follows:

    Descriptor (1)(a) – the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities.

36. I agree with the findings of Dr Douglas and, therefore the JCA, where the Applicant indicated that she was, at the relevant time, able to walk about 50 meters before she needed a rest, and that she needed to avoid uneven ground, hills and slopes. The Applicant holds a disability parking permit and is reliant on her wheelie walker for her mobility. As noted by the JCA, the Applicant usually drives or obtains a lift to attend venues outside her home.

37. The next applicable descriptor in this 10 point section of Table 3 is descriptor (2). It provides as follows:

    Descriptor (2) - The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

38. Consistent with the findings of Dr Douglas and the JCA, I find that the Applicant was, at the relevant time, able to drive short distances. With the support of her wheelie walker, she was able to walk around in a supermarket.

39. The next applicable descriptor in this 10 point section of Table 3 is descriptor 3(b). It provides as follows:

    Descriptor 3(b) - This impairment rating level includes a person who can:

    …

    (b) move around independently using walking aids (e.g. quad stick, crutches or walking frame).

40. My finding is that this Applicant, as was observed by the JCA, does require the use of her wheelie walker, but nevertheless, remains independent with regard to mobility for the purposes of this descriptor.

41. Having regard to the totality of my above findings relating to this Table 3, my finding is that the appropriate rating in respect of the Applicant’s lower limb deficiency is 10 points. I do not consider that these conditions fall within the 20 point descriptors of this Table 3 because the Applicant remains independent with the use of her wheelie walker.

1. I now turn to the second group of conditions, which are: morbid obesity, diabetes and obstructive sleep apnoea. They are functions that are captured by Table 1 (Functions requiring Physical Exertion and Stamina) of the Impairment Tables. An initial point to note is that the Respondent accepts that the Applicant’s morbid obesity, diabetes and obstructive sleep apnoea conditions where in fact fully diagnosed, treated and stabilised during the Relevant Period.

2. In support of that contention, which I accept, the Respondent has cited a group of medical reports, namely: the report of Dr Douglas dated 22 December 2014, the report of Dr Borlado dated 1 July 2016, the JCA report dated 8 March 2016, the JCA’s further comments in relation to morbid obesity appearing in that report, and Dr Borlado’s report dated 21 February 2017. Based upon those reports, I accept, as per the Respondent’s contention put to me, that these conditions were fully diagnosed, treated and stabilised during the Relevant Period.

3. The question now is what kind of impairment rating do these conditions warrant under Table 1 of the Impairment Tables? It is necessary to have regard to the descriptors for the 5 and 10 point allocations as they are stated in Table 1. I have had regard to the descriptors for the 5 point allocation or mild functional impact on activities requiring physical exertion or stamina for the purposes of my Reasons. I consider that the descriptors in the 5 point category do apply to this second group of conditions based on how the evidence unfolded before me both during the hearing and in the written material before me.

4. The first applicable descriptor in this 5 point section of Table 1 is descriptor (1)(a)(ii). It provides as follows:  

   (1)The person:

   (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

   …

   (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); …

5. At the Relevant Period, this Applicant had shortness of breath when carrying out tasks such as vacuuming at home or walking longer distances with the use of her wheelie walker. I consider that this evidence of the Applicant is consistent with what Dr Douglas had to say in her report about this Applicant’s body mass index being in excess of 50.

6. The second applicable descriptor in this 5 point section of Table 1 is descriptor (1)(b). It provides as follows:

   (1)  The person:

   …

   (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

7. The Applicant’s evidence is that, at the Relevant Period, she did experience endurance limitations and shortness of breath and this was mostly associated with her BMI reading as it was reported by Dr Douglas. The total effect of this medical opinion and evidence, in my view, is that her conditions in this category are not likely to render her unable to perform most work-related tasks, other than tasks involving heavy manual labour.

8. In all of the circumstances and based on the evidence as it transpired before the Tribunal, my finding is that, as at the Relevant Period, an allocation of 5 points should be considered sufficient to account for the impact of this Applicant’s unfortunate difficulties with her excess weight. I agree with the findings of the JCA that any higher rating would be excessive because her weight alone would not or did not impact on her ability to undertake the tasks which would have given her 10 points for this group of impairments. With reference to this second group of conditions, I find that the appropriate rating is 5 impairment points under Table 1 of the Impairment Tables.

9. The third category of condition(s) referred to by this Applicant relates to bilateral median neuropathy or upper limb functions. The relevant Impairment Table is Table 2 (Upper Limb Function). The Respondent has accepted that this particular condition was fully diagnosed during the Relevant Period, but that it was not fully treated and stabilised at that time based on the evidence as it transpired at the hearing. I agree with that contention. It is clear from the reports that this particular condition has not been fully treated and stabilised.

10. In support of this finding, I cite the report of Dr Douglas dated 22 December 2014. Dr Douglas said that the Applicant had received physiotherapy for this condition and that she was awaiting further appointments for the implementation of a Chronic Disease Management Plan with an orthopaedic surgeon. Further, the JCA, in her report on 8 March 2016, noted that the Applicant told her she had completed certain physiotherapy treatments, that she had received a steroid injection into her right wrist and that she was awaiting orthopaedic assessment at the hospital clinic. In other words, the Applicant confirmed the earlier comments of Dr Douglas as I have just summarised them. In these circumstances, my finding is that this bilateral median neuropathy condition was fully diagnosed at the Relevant Period but not fully treated and stabilised during the Relevant Period. Accordingly, it is not possible to allocate an impairment rating to that condition.

11. The next stated condition is the lower back pain with degenerative spondyloarthropathy condition. It is generally referred to as spinal function, and the applicable Impairment Table is Table 4 (Spinal Function). Once again, the Respondent has accepted that this condition was fully diagnosed during the Relevant Period, but that it was not fully treated and stabilised on the basis of the evidence before the Tribunal. I agree with that contention.

12. Once again, Dr Douglas said in her report dated 22 December 2014 that although this spinal function condition could be diagnosed and was in fact diagnosed, the Applicant had initially undergone some physiotherapy and that she had been given a few exercises to do. Further, the Applicant reported to the JCA that she had attended physiotherapy for this condition and that she had been prescribed exercises but that she now awaited orthopaedic assessment at a hospital clinic.

13. Further to that, my colleague at the SSCSD (or AAT1 review) noted that the Applicant said that she had had “…some physiotherapy for her back which did help to a point”. My colleague noted the Applicant’s further evidence that “She has been referred to the hospital for an orthopaedic assessment”. It is therefore clear to me that although this lower back pain or spinal function condition has been fully diagnosed as at the Relevant Period, it was not fully treated and stabilised during the Relevant Period. Therefore, no impairment points can be allocated to it for the purposes of determining this application.

14. The next condition is the fifth condition which relates to this Applicant’s asserted difficulties with depression. The relevant Impairment Table is Table 5 (Mental Health Function). An initial difficulty with this particular condition is that the Applicant has, in my view, difficulty in convincing the Tribunal that the condition has been fully diagnosed, treated and stabilised during the Relevant Period. The initial difficulty is that such a diagnosis for the purposes of this hearing must be made by an appropriately qualified medical practitioner. This can include a psychiatrist with evidence from a clinical psychologist if the diagnosis has not been made by a psychiatrist.

15. At the hearing, a certain document, marked Exhibit 5, comprising a very short report (barely 5 lines) from the clinical psychologist, Mr Vic Rodney, was presented to me. To my mind, this report of Mr Rodney does not constitute an independent finding or diagnosis of any mental condition said to be suffered by this Applicant. Upon a plain reading of this report from Mr Rodney, it is apparent that he is simply restating what he has either been told by the General Practitioner or otherwise simply summarising what he may have read on another practitioner’s file. Mr Rodney otherwise refers the reader to “Other medical conditions experienced by Ms Coutts... outlined in her general practitioners [sic] report of 6 January, 2017.”

16. Further to that, Mr Rodney says in this very short report of 10 January 2017, that the Applicant will “shortly commence therapy for the above conditions.” In all the circumstances, even if Mr Rodney’s very short report could be regarded as some type of definitive diagnosis of any type of mental health condition (which I do not accept), the fact that he says the Applicant “will shortly commence therapy for those conditions” leads me to conclude that this condition could not in any way be regarded as fully treated and stabilised. Given my preceding comments, I find that with regard to this mental health condition, the Applicant’s depression was not fully diagnosed, treated or stabilised and, as a result, an impairment rating cannot be assigned to it.

17. The final group of conditions, or the sixth group, relates to the ‘Other conditions’ which includes: hypertension, hyperlipidaemia and Gastro-Oesophageal Reflux Disease (GORD).

18. Once again, I note the Respondent’s acceptance that this group of conditions is fully diagnosed, treated and stabilised during the Relevant Period. However, the Respondent further contends that these conditions should not attract any impairment points because they fundamentally do not affect the functional capacity of this Applicant as they are well managed or otherwise cause limited or minimal impact on her ability to function. I agree with that contention and I think it is adequately supported in the medical evidence, particularly in the following reports:

    (a)the report of Dr Douglas 22 December 2014, in which Dr Douglas notes that these conditions have been diagnosed but they are causing nil symptoms and nil impact on her employment capacity;

    (b)the JCA, in its report 8 March 2016, said that with regard to hypertension, that this condition is largely well managed and the JCA thought that there were no symptoms from this hypertension condition that impacted on the Applicant’s capacity to perform employment duties;

    (c)further, the JCA noted the finding of Dr Douglas of the hyperlipidaemia being well managed and, once again, there was nothing arising from this condition or group of conditions impacting on the Applicant’s capacity to do employment duties.

19. With regard to the Gastro-Oesophageal Reflux Disease (GORD), the JCA found that (1) in accordance with what had been told to her by the Applicant, this condition, at the Relevant Period, was largely well managed and (2) as per the finding of Dr Douglas there were no symptoms or issues from the GORD condition that impacted on the Applicant’s capacity to do employment duties.

20. These conditions appear well managed and they present no impediment to the functional capacity of the Applicant. Accordingly, they attract 0 (zero) impairment points under Impairment Table 1 (Functions requiring Physical Exertion and Stamina) and Table 10 (Digestive and Reproductive Function).

    Summary of Impairment Points

21. For ease of reference I will provide a summary of relevant impairment points and / or other findings as it relates to these six groups of conditions.

Condition	Table	Points Assigned
Peripheral neuropathy and Osteochondritis	Table 3 – Lower Limb Function	10 Points
Morbid Obesity, diabetes and obstructive sleep apnoea	Table 1 – Functions requiring Physical Exertion and Stamina	5 points
Bilateral median neuropathy upper limb function	Table 2 – Upper Limb Function	Fully diagnosed but not fully treated and stabilised – nil points
Lower back pain with degenerative spondyoarthropathy	Table 4 – Spinal Function	Fully diagnosed but not fully treated and stabilised -  nil points
Depression or mental health condition	Table 5 – Mental Health Function	Not fully diagnosed, treated or stabilised -  nil points
Hypertension, hyperlipidaemia and GORD	Table 1 - Functions requiring Physical Exertion and Stamina and Table 10 – Digestive and Reproductive Function	Fully diagnosed, treated and stabilised but no functional impact under either Table - 0 points
Total Points =		15 points

1. Therefore, my finding as to allocable impairment points for the totality of the Applicant’s conditions is 15 points.

2. By way of summary, the totality of both the expert and anecdotal evidence of this Applicant both from the written material and from the Applicant’s own oral evidence is in my view not of sufficient weight for the Tribunal to allocate impairment points for any of her conditions at this stage beyond the summary I have provided. As such she does not reach a total of 20 or more impairment points under the Tables, and she does not satisfy the second of the requirements for DSP. She therefore does not qualify for DSP via this application.

   Continuing Inability to Work?

3. Given that this Applicant does not reach 20 points or more at the Relevant Period under this application, it is unnecessary to consider the question of whether she has completed a program of support and otherwise whether she has a continuing inability to work.

   An additional observation

4. I would like to make additional observations. I respectfully repeat two things:

   (a)firstly, my observation that this Applicant seems a sincere lady with a notable list of ailments;

   (b)secondly, the court’s comments in Bobera,[28] that if a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.

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

5. For the purposes of this application, this Applicant has failed to reach 20 points or more due to an insufficiency of medical evidence contemporaneous with or otherwise probative of her conditions during the Relevant Period. Her primary contended condition(s) may well have worsened since the Relevant Period and other ailments may well have manifested since the Relevant Period. Her current symptomatology, if properly analysed, reported upon and progressed through a fresh application for DSP, could conceivably result in a more favourable impairment rating. This may or may not result in a residual issue of a continuing ability to work. It ultimately comes down to the Applicant’s capacity to endure the requirements of a fresh application.  

   CONCLUSION

6. I find that the Applicant does not qualify for DSP because her impairments only attracted 15 impairment points during the Relevant Period.

7. For the reasons outlined above and given orally at the conclusion of the hearing in this matter, I affirm the decision under review.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

....................................[sgd]....................................

Associate

Dated: 5 July 2017

Date of hearing:	31 May 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr R McQuinlan
Solicitors for the Respondent:	Department of Human Services