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

Cox and Secretary, Department of Social Services (Social services second review) [2019] AATA 4396 (30 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1666
Re:Anna Cox
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member W Frost
Date:30 October 2019
Place:Canberra

The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the Administrative Appeals Tribunal Act 1975.
............................................................
Member W Frost
Catchwords
SOCIAL SECURITY – Disability Support Pension – multiple medical conditions – fibromyalgia – sleep apnoea – heart condition – dilated cardiomyopathy – epilepsy – upper limb condition – shoulder impingement – irritable bowel syndrome – incontinence – whether the Applicant’s conditions are fully diagnosed, treated and stabilised – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act ss 37, 43
Social Security Act 1991 s 94
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 ss 5, 6, 10
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher and Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606
REASONS FOR DECISION
Member W Frost
30 October 2019
INTRODUCTION

The Applicant, Ms Anna Cox, is 49 years old and lives in Wagga Wagga, New South Wales. Ms Cox has multiple medical conditions that give rise to her claim for the Disability Support Pension (DSP).
In January 2018, Ms Cox’s claim for DSP was rejected by the Department of Human Services (Department). Ms Cox unsuccessfully sought review by an Authorised Review Officer (ARO) and, in March 2019, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed this rejection, following which Ms Cox applied for review by the General Division of the Tribunal.
The Department, on behalf of the Respondent, did not consider that Ms Cox was qualified for DSP at the date of her claim, or within 13 weeks thereafter, because her conditions could not be assigned an impairment rating to meet the required 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables).
ISSUE
The issue before the Tribunal is whether Ms Cox was qualified for DSP at the date of her claim on 6 December 2017 or within the following 13 weeks.
BACKGROUND
On 6 December 2017, Ms Cox lodged her DSP claim with the Department (Document numbered ‘T27’, pages 143-172, of the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (AAT Act)). In her claim form, Ms Cox listed her ‘disabilities, illnesses or injuries’ as being: asthma; epilepsy; fibromyalgia; shoulder impingement syndrome; sleep apnoea; and recurrent chest pain.
On 14 December 2017, a DSP Medical Assessment Recommendation was completed for the Department. The assessor’s recommendation was that Ms Cox was ‘manifestly medically ineligible’ for DSP because her conditions were not fully diagnosed, treated and stabilised (T28, pages 173-174).
On 2 January 2018, Ms Cox’s claim for DSP was rejected by the Department on the basis of its assessment that she did not have an impairment rating of 20 points or more under the Impairment Tables (T29, pages 175-176).
On 20 June 2018, a face to face Employment Services Assessment determined that Ms Cox had a baseline work capacity of 15 to 22 hours per week and a capacity for work within two years with intervention of 23 to 29 hours per week. The job capacity assessor recommended that Ms Cox be referred to the Disability Management Service of the Commonwealth’s Disability Employment Services program (T33, pages 182-187).
On 18 August 2018, a further DSP Medical Assessment Recommendation was completed. The assessor again recommended that Ms Cox was ‘manifestly medically ineligible’ for DSP because her conditions were not fully diagnosed, treated and stabilised (T34, pages 188-189).
On 2 November 2018, another DSP Medical Assessment Recommendation was completed. The assessment remained that Ms Cox was ‘manifestly medically ineligible’ for DSP (T36, pages 191-192).
On 23 November 2018, an ARO of the Department affirmed the rejection of Ms Cox’s DSP claim (T38, pages 194-200).
On 30 November 2018, Ms Cox applied to the AAT1 for review of the Department’s rejection decision (T39, page 201).
On 5 March 2019, the AAT1 affirmed the rejection of Ms Cox’s DSP claim, finding that she did not meet the requisite qualification criteria (T2, pages 3-26).
On 27 March 2019, Ms Cox lodged an Application for Second Review of Decision with the General Division of the Tribunal (T1, pages 1-2). Ms Cox claimed in the application that the AAT1 decision was wrong because:
All of the reports and information presented about my conditions were not taken into account, in particular in relation to 3 of my conditions: 1 – Fibromyalgia. 2 – Epilepsy and 3 – I.B.S – Irritable bowel syndrome. I would like the opportunity to have this reviewed and if need be present even more reports/information if this is the reason for my claim being refused.
Subsequent to lodging her review application with the Tribunal, Ms Cox filed the following documents that were not in existence when the AAT1 made its decision in March 2019:
(a)Medical Report of Dr Anna McCombie, Respiratory and Sleep Physician, Riverina Respiratory & Sleep Centre, dated 30 April 2019 (Document numbered ‘ST4’, page 5, in the supplementary documents lodged with the Tribunal pursuant to section 37 of the AAT Act);
(b)Medical Report of Dr Brett Todhunter, Pain Medicine Specialist, dated 30 August 2019 with attachment titled ‘Patient Information – Scrambler Therapy’ (Exhibit A2); and
(c)Medical Report of Dr Michael McCready, Consultant Physician and Cardiologist, dated 27 September 2019 (Exhibit A1).
CONSIDERATION
What is the qualification period for assessment of eligibility for DSP?
Section 4(1) in Schedule 2 of the Social Security (Administration) Act 1999 (Administration Act) sets out how to determine the ‘start day’ for a social security payment following a claim by an applicant, as follows:
If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
Pursuant to the above, the Tribunal is required to assess Ms Cox’s DSP claim based on her conditions as at the date of her claim or within 13 weeks of that time.[1] The ‘start day’ for Ms Cox’s claim for DSP is the day she lodged her claim on 6 December 2017 and the 13 week qualification period runs from that date until 7 March 2018.
[1] Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] to [8]; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252 at 253; Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; and Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31-33.
In Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34], the Tribunal stated that:
In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, 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.
The Federal Court of Australia in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 has endorsed the principle, discussed in Harris[2] and Fanning,[3] that medical reports that come into being after the qualification period will only be relevant to the extent that they refer to the applicant’s condition during the qualification period.[4] Accordingly, the Tribunal can only consider Ms Cox’s eligibility for DSP within the qualification period, assisted by medical information regarding her conditions as they were during that period, not following the end of the qualification period on 7 March 2018.
[2] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.
[3] Fanning and Secretary, Department of Social Services [2014] AATA 447.
[4] Gallacher and Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29]).
What are the qualification criteria for DSP?
Section 94(1) of the Social Security Act 1991 (Act) provides that a person aged 16 years or over is qualified for DSP 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;…
Evidently from the above, each element of the three qualification criteria set out in section 94(1) of the Act must be satisfied for a person to qualify for DSP.
The Impairment Tables
The Determination containing the Impairment Tables is made under section 26(1) of the Act and the Impairment Tables commenced on 1 January 2012.
Under subsection 94(1)(b) of the Act, a person’s impairment must be determined to be 20 points or more under the Impairment Tables. As set out in section 5 of the Impairment Tables, they are: function based rather than diagnosis based; describe functional activities, abilities, symptoms and limitations; and are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Section 6 of the Impairment Tables sets out rules for assessing functional capacity and assigning impairment ratings. When applying the Impairment Tables, the impairment ‘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’ (subsection 6(1)). The rules must be satisfied before an impairment rating can be assigned to a DSP applicant. In this regard, subsection 6(3) of the Impairment Tables provides that an impairment rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment ‘is more likely than not, in light of available evidence, to persist for more than 2 years’.
Subsection 6(4) of the Impairment Tables provides that a person’s condition is ‘permanent’ if each of the following is met:
(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.
In determining whether a condition has been ‘fully diagnosed’ and ‘fully treated’ for the purposes of subsections 6(4)(a) and (b), subsection 6(5) of the Impairment Tables provides that the following is to be considered:
(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.
Under subsection 6(6) of the Impairment Tables, a person’s 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.
The Impairment Tables provide, at subsection 6(7), that ‘reasonable treatment’ is treatment that:
(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.
The presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if the condition has no functional impact on the person, including because there has been appropriate treatment for that condition (subsection 6(8) of the Impairment Tables).
Subsection 10(1) of the Impairment Tables states that table selection from the available Impairment Tables is to be made applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Was there a physical, intellectual or psychiatric impairment?
Since Ms Cox lodged her initial claim with the Department in December 2017, the conditions that make up her claim for DSP have been better identified as being: fibromyalgia; sleep apnoea; heart condition; epilepsy; upper limb condition; irritable bowel syndrome (IBS) and incontinence.
The Tribunal considered all of the documents in the two bundles of Tribunal documents lodged pursuant to section 37 of the AAT Act, including Ms Cox’s medical and related reports, and those reports recently lodged with the Tribunal after the AAT1 decision in March 2019. The Tribunal is satisfied on the evidence before it that Ms Cox had impairments during the qualification period such that she meets the first criteria to qualify for DSP in subsection 94(1)(a) of the Act.
While the Respondent accepted that Ms Cox suffered impairments due to her various conditions so as to satisfy this one of the three elements for qualification for DSP, the Respondent contended that none of Ms Cox’s conditions met the requisite test of being ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ during the qualification period to be assigned an impairment rating under the Impairment Tables to satisfy the second criteria to qualify for DSP in subsection 94(1)(b) of the Act. Additionally, the Respondent said that Ms Cox did not have a ‘continuing inability to work’ during the qualification period, being the third criteria to qualify for DSP, as required in subsection 94(1)(c) of the Act. In this regard, the Respondent acknowledged that Ms Cox had satisfied the requirement to actively participate in a ‘program of support’ pursuant to subsection 94(2)(aa) of the Act, however she was not assessed as being prevented ‘from doing any work independently of a program of support within the next 2 years’ as required by subsection 94(2)(a) and (b) of the Act.
Fibromyalgia
In relation to Ms Cox’s fibromyalgia, which features generally include widespread musculoskeletal pain and tenderness, unrefreshing sleep and significant levels of fatigue,[5] the Tribunal is not satisfied that the condition was ‘fully diagnosed’ as at the qualification period as required by subsection 6(4)(a) of the Impairment Tables. Ms Cox’s fibromyalgia was only confirmed by Dr Todhunter, Pain Medicine Specialist, on 6 November 2018 following an appointment with Ms Cox on 17 October 2018 (both of these dates are after the end of the qualification period on 7 March 2018). Dr Todhunter diagnosed Ms Cox with ‘fibromyalgia/chronic widespread pain’ for which ‘there is no cure…and it will last indefinitely’ and confirmed that she developed widespread pain over ten years ago.
[5] Guyner, E., and Littlejohn, G., Fibromyalgia, in Australian Family Physician (incorporating Annals of General Practice), published by The Royal Australian College of General Practitioners, Volume 42, No. 10, October 2013, pages 690-694, at (accessed on 15 October 2019).
Ms Cox informed the Tribunal that her fibromyalgia was diagnosed ‘about probably eight years ago’ by her then General Practitioner, Dr Peter English, but there was ‘nothing done then’. Ms Cox confirmed there was no report from Dr English regarding this condition. In this way, there is no medical evidence before Dr Todhunter’s report on 6 November 2018, that Ms Cox’s fibromyalgia was diagnosed by an appropriately qualified medical practitioner before or during the qualification period. The Tribunal therefore cannot find that this condition was ‘fully diagnosed’ as at the qualification period.
A medical certificate from Dr Amir, Ms Cox’s General Practitioner, dated 23 August 2018 states that Ms Cox was ‘diagnosed with fibromyalgia 4 yrs ago’ (T35, page 190), however there was no record of such a diagnosis earlier than November 2018 before the Tribunal. Dr Amir notes that Ms Cox has a history of drug abuse from her early to mid-twenties, which she overcame ‘with great difficulty’. Ms Cox and her friend, Ms Karen Campbell, also told the Tribunal at hearing of Ms Cox’s historical illicit drug issues and the steps she has taken to defeat her previous addiction. This includes an unwillingness to take any pain relief medication because Ms Cox does not want to risk re-addiction after more than twenty years. However, as Ms Campbell stated, Ms Cox has ‘deteriorated’ over the past decade as a result of her fibromyalgia and unwillingness to take appropriate medication. Ms Campbell said that Ms Cox had gone from being a ‘happy-go-lucky’ person, raising her children and enjoying her grandchildren, while studying and working, to now being a person having to be cared for by her youngest child. Another witness, Ms Gwenda Miller, informed the Tribunal that she lived with Ms Cox for two years between late 2012 or early 2013 until early 2015 and that Ms Cox was in ‘a lot’ of pain ‘daily’ due to her fibromyalgia. During this period of time, Ms Cox was said to rely on her children and Ms Miller to assist with the completion of housework.

Having regard to the evidence, the Tribunal is not satisfied that Ms Cox’s fibromyalgia was ‘fully treated’ and ‘fully stabilised’ during the qualification period because she had not undertaken reasonable treatment by or during that time. For example, Dr Todhunter in November 2018 said that there is ‘no curative treatment’ for fibromyalgia, but that Ms Cox ‘may get some pain reduction with a Ketamine infusion’ and ‘some benefit from a cognitive behavioural pain management program but I doubt that would be the case’ (T37, page 193). In this regard, the Tribunal notes that Ms Cox had Ketamine infusions in May 2019, more than one year after the end of the qualification period, demonstrating that this condition was not ‘fully treated’ and ‘fully stabilised’ as at the qualification period (ST5, page 6).
Dr Todhunter’s further report dated 30 August 2019 states that, following the Ketamine infusions in May 2019, Ms Cox’s pain ‘virtually went for 4 weeks but then returned. This can happen with Ketamine infusions…As the Ketamine infusions did not last a long period it would not be a reasonable approach to repeat it’ (Exhibit A2). Dr Todhunter again raised the possibility of Ms Cox undertaking a cognitive behavioural pain management program to reduce the impact of the pain on her life. He also says the ‘only treatment’ for pain relief would be ‘Scrambler Therapy’, which is a new form of treatment in Australia that stimulates pain fibres to reduce ‘central neuropathic pain and particularly Complex Regional Pain Syndrome’ (Exhibit A2). However, this treatment would need to be self-funded by Ms Cox because it does not yet have a Medicare Benefits Schedule number to allow a claim to be made for reimbursement by Medicare of some of its cost. The cost per treatment is $300 and fifteen treatments are recommended over three weeks at a total cost of $4,500.
Based on the above evidence, Ms Cox’s fibromyalgia was not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ as at the qualification period and the Tribunal cannot assign an impairment rating under the Impairment Tables for this condition.
Sleep apnoea
In relation to Ms Cox’s sleep apnoea, the Tribunal is satisfied that the condition was ‘fully diagnosed’ as at the qualification period as required by subsection 6(4)(a) of the Impairment Tables. However, the Tribunal is not satisfied, based on the evidence, that Ms Cox’s sleep apnoea was ‘fully treated’ and ‘fully stabilised’ as at the qualification period because she had not undertaken ‘reasonable treatment’ at that time as required by subsection 6(6) of the Impairment Tables.
On 22 September 2016, Ms Cox undertook a ‘sleep study’. The accompanying report from Dr George Hamor, Respiratory and Sleep Medicine Physician, concluded that Ms Cox had ‘mild’ sleep-disordered breathing and recommended a mouth splint ‘if snoring is an issue’ (T9, page 113).
In May 2017, Dr Gerard Fogarty, Ear, Nose and Throat, Head and Neck Surgeon, records that Ms Cox ‘has had problems with snoring for many years and feels this is probably worsening and certainly associated with daytime tiredness being a reflection of nocturnal airway disturbance…She has had a home sleep study which shows sleep apnoea’ (T17, page 125). Dr Fogarty states that Ms Cox’s ‘ambition is to have the snoring problem managed by other than CPAP [Continuous Positive Airway Pressure] and I think it reasonably likely that a Uvulopalatopharyngoplasty procedure will achieve this. However, I have made it abundantly clear that the procedure is quite unpleasant and is not guaranteed to work.’
In June 2018, after the end of the qualification period, an Employment Services Assessment noted that Ms Cox ‘reported that she recently had surgery to remove her adenoids, and is awaiting further tests’ (T33, page 184).
On 26 March 2019, over one year after the end of the qualification period, Ms Cox underwent a sleep study at the Sleep Disorders Unit at Calvary Health Care Riverina in Wagga Wagga (ST5, pages 7-10). The associated report concluded that Ms Cox had ‘moderate obstructive sleep apnoea with moderate associated oxygen desaturation’.
On 30 April 2019, Dr McCombie provided a letter to Ms Cox (ST4, page 5) noting that she:
has moderate obstructive sleep apnoea which is a chronic condition that will require management with CPAP therapy. There is no cure for obstructive sleep apnoea but only ongoing management with CPAP therapy and review by a respiratory physician.
Ms Cox told the Tribunal that she has a CPAP machine, but cannot use it: ‘I’ve tried; I’ve had it for the last couple of months’. In this regard, and based on the other evidence regarding treatment for Ms Cox’s sleep apnoea, this condition was not ‘fully treated’ as at the qualification period. As a result, the Tribunal cannot assign an impairment rating under the Impairment Tables for sleep apnoea.
Heart condition
In relation to Ms Cox’s heart condition, the Tribunal is not satisfied that it was ‘fully diagnosed’ as at the qualification period as required by subsection 6(4)(a) of the Impairment Tables. Ms Cox’s issues with her heart are long-standing, but her condition has only recently diagnosed as ‘dilated cardiomyopathy’.
In May 2014, Dr McCready, Consultant Physician and Cardiologist, reported to Dr Amir, following a coronary angiogram, that Ms Cox ‘does not have significant cardiac disease but I think she should have cardiac assessment again in 12 months to assess LV [left ventricle] function and ensure that her dyssynchronous appearance is not due to early dilated cardiomyopathy’ (T4, page 108).
In November 2015, Dr McCready reported to Dr Amir, following a review and ‘cardiac echodoppler’ scan, that Ms Cox ‘has low normal LV systolic function’. Dr McCready said Ms Cox ‘should probably be checked every two to three years to ensure she is not developing dilated cardiomyopathy’ (T7, page 111).
On 17 June 2017, Ms Cox presented to Wagga Wagga Base Hospital with a ‘sharp chest pain, radiating to left shoulder’. The Emergency Registrar noted that she had advised Ms Cox to make a follow up appointment with Dr McCready ‘for consideration of stress test if her episodes of pain continue’ (T18, page 126).
On 27 March 2018, after the qualification period ended earlier that month, Dr McCready examined Ms Cox and subsequently reported that (T32, pages 180-181):
She was reviewed with regard to her dyssynchronous LV function and now mild systolic dysfunction. She has dilated cardiomyopathy.
…
As you know, she has been worked up in the past and found to have dyssynchronous left ventricular contraction and normal coronary arteries. She has presented to ED apparently on several occasions for chest pain and no specific diagnosis has been made.
She is still smoking. Her asthma is under good control.
She is keen to pursue designation as totally and permanently disabled. The basis is not entirely clear but I gather there are multiple factors including a seizure disorder, left shoulder problem and stomach problems.
On examination, blood pressure was 110/80mmHg and pulse was 60bpm and regular. General examination is unremarkable and cardiac examination is normal with no evidence of heart failure.
ECG showed normal sinus rhythm with shallow precordial T-wave inversions. Echo shows mild global left ventricular systolic dysfunction that represents a deterioration from previously.
Ms Cox has dilated cardiomyopathy with mild systolic dysfunction. I do not think she should work in a physical capacity but sedentary work from a cardiac point of view would be acceptable. Smoking cessation is strongly recommended. For her LV dysfunction we will start carvedilol 3.125 bd for 2 weeks and then 6.25 bd for approximately 1 month. I would then appreciate it if you could uptitrate to 12.5 bd and ultimately 25 bd after she gets accustomed to each escalating dose. I expect this will take a couple of months.
As noted in Dr McCready’s report, no diagnosis had been made for Ms Cox’s heart condition until his examination of Ms Cox in late March 2018, after the end of the qualification period. Additionally, Dr McCready at that time commenced Ms Cox on medication for her condition, which treatment was to continue and increase over time in consultation with her General Practitioner. In this way, Ms Cox’s heart condition was not ‘fully treated’ or ‘fully stabilised’ as at the qualification period because she had not then undertaken reasonable treatment for this condition.
A subsequent 20 June 2018 Employment Services Assessment recorded that Ms Cox had said her heart condition ‘was diagnosed three years ago’, although there is no evidence before the Tribunal to corroborate this assertion, which also contradicts Dr McCready’s report from March 2018 regarding there being no diagnosis despite Ms Cox’s presentations to Hospital Emergency Departments for heart problems over previous years. The June 2018 Employment Services Assessment also notes that Ms Cox is ‘due to review with Dr McCready in September this year’ (T33, page 184).
On 17 September 2018, a Transthoracic Echocardiogram Report finalised by Dr McCready recorded that Ms Cox had ‘improved left ventricular systolic function in comparison with the previous study’ (ST3, page 4; ST6, page 15).
On 5 October 2018, Dr McCready reported to Dr Amir that Ms Cox was reviewed by him on 17 September 2018 and that (ST2, page 3):
She has tolerated up titration of her carvedilol to 12.5mg/25mg twice daily. She continues to smoke 10 cigarettes per day.
…
An ECG showed normal sinus rhythm with precordial T-wave inversions.
An echochardiogram showed improved left ventricular function which is now in the normal range.
Ms Cox has dilated cardiomyopathy with normalised left ventricular function. She has had excellent improvement in left ventricular systolic function due to betablocker therapy and, despite her concerns, I think her blood pressure is very reasonable. I got the impression she was a bit disappointed things had improved which I found a bit puzzling. Nonetheless, I have reassured her and her care co-ordinator.
She will continue her medications at the current dose and, at this stage, I should see her in 12 months or sooner if you have concerns.
On 27 September 2019, Dr McCready reported to Dr Amir (Exhibit A1) that Ms Cox was reviewed by him on 9 September 2019 and that:
She has not had any particular cardiac symptom. She has ongoing chest pain but I am pretty sure this is not coronary, given the previous investigation and the long-term nature. She feels like her heart is going to “fall out”. She is still smoking ten cigarettes per day.
…
Overall, her LV function is pretty similar to last time…
She will continue her carvedilol 12.5mg bd and Lamictal…
She continues to seek a pension. I would not say that her heart function precludes work but she does have a permanent cardiac condition (dilated cardiomyopathy), whether or not her left ventricular function normalises. She asked me to write to you in this regard. At this stage, I should see her again in 12 months.
The evidence before the Tribunal demonstrates that Ms Cox only commenced reasonable treatment for her heart condition after the end of the qualification period. In this regard, Dr McCready reported in October 2018, following his review on 17 September 2018 that as a result of this treatment Ms Cox had experienced ‘excellent improvement’ in her heart function (ST2, page 3). Accordingly, as Ms Cox’s heart condition was not ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ as at the qualification period, the Tribunal cannot assign an impairment rating under the Impairment Tables for this condition.
Epilepsy
In relation to Ms Cox’s epilepsy, the Tribunal is satisfied that this condition is ‘permanent’ under subsection 6(3) of the Impairment Tables, in that it was ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ as at the qualification period. However, there was no evidence before the Tribunal that Ms Cox had any functional impairment as a result of this condition in order for the Tribunal to assign an impairment rating higher than zero points under Table 15 of the Impairment Tables, titled ‘Functions of Consciousness’, which is to be used where a person has a permanent condition resulting in functional impairment due to involuntary loss of consciousness or altered state of consciousness, such as epilepsy.
The earliest medical evidence regarding Ms Cox’s epilepsy is a report from Dr Martin Jude, Consultant Physician and Neurologist, dated 16 January 2009, which states that (ST1, pages 1-2):
She has been reasonably well since the last review in February 2007 but has had two episodes which I think are complex partial seizures. They occurred some months ago, she said on one occasion she was on the phone, felt a sweaty sensation and felt generally queasy, and then stopped talking on the phone, thinks that she hung up the phone later on and sat down. She didn’t lose consciousness, and after the event she felt generally unwell as she typically would after one of her previous seizures.
A further event occurred while she was sitting at the dining table witnesses by her partner who said that she suddenly stopped talking.
These are the only two events since 2007. Thank you for increasing her Lamictal currently increased from 100bd to 150bd which she is tolerating reasonably well.
…
Her neurological examination today was unremarkable. I don’t think she needs repeat imaging or EEG at this stage and I have discussed with her that the events are likely to represent complex partial seizures.
…
I have asked her to use a dosing box, and she has had a month of modifying her compliance and has had no further events I think she could continue driving at this stage. She is aware however that she will need to report any event of loss of awareness that would potentially precipitate a further review of driving.
I have left her follow up open at the moment. If there are further events I think it would be reasonable to check her Lamictal level at that time in case compliance is a problem although I don’t suspect this is likely. I think she should then increase up to 200mg bd of Lamictal but only if further events occur. Alternative anticonvulsants could be trialled if there was a failure of Lamotrigine therapy but the recent experience has been that control has been generally adequate.
A medical certificate from Dr Peter English, General Practitioner, dated 24 January 2017, recorded ‘Epilepsy (Grand Mal)’ as one of Ms Cox’s conditions affecting her capacity to work or study (T12, page 118).
Following Ms Cox’s attendance at Wagga Wagga Base Hospital in June 2017, the Hospital’s Discharge Referral to Dr Amir dated 17 June 2017 makes reference in Ms Cox’s ‘Past medical history’ to ‘epilepsy – well controlled’ (T18, page 126).
A Health Summary Sheet printed by Dr Amir on 4 September 2017, records one of Ms Cox’s current medications as Lamictal prescribed for her ‘Epilepsy – Complex Partial Seizures’ (T20, page 129).
In addition, a medical certificate from Dr Amir dated 14 February 2018 lists her epilepsy as a permanent condition with a date of onset being 2004 (T30, page 177).
A medical certificate from Dr Amir dated 3 April 2019, notes that Ms Cox’s epilepsy is ‘well controlled on medication. Still getting staring episodes. Feels tired with anti-epileptic medication’ (T40, page 202).
Ms Cox told the Tribunal that her epilepsy was ‘under control’ and that she had been on the same medication, Lamictal, for twelve years and there had been no epileptic episode since those recorded in Dr Jude’s 2009 report. Ms Cox said the Roads & Traffic Authority in New South Wales (now Roads and Maritime Services (RMS)) requires her to provide an annual medical certificate confirming that her epilepsy is under control and that she has not had a seizure. Ms Cox said she can still occasionally have ‘staring episodes’, but these do not escalate into an involuntary loss, or altered state, of consciousness, as required for a rating above zero points to be assigned for epilepsy under Table 15 of the Impairment Tables.
To this end, there was no medical evidence that Ms Cox experienced any episodes of involuntary altered state of consciousness or loss of consciousness in the period between her epileptic episodes in 2009 and the end of the qualification period in March 2018. Accordingly, and because of the effectiveness of Ms Cox’s medication, there is no evidence of any functional impact because of her epilepsy. The Tribunal notes that subsection 6(8) of the Impairment Tables provides that the presence of a diagnosed condition does not necessarily mean there will be an impairment to which an impairment rating can be assigned under the Impairment Tables if it has no functional impact on the person, including because of appropriate treatment for that condition.
In this regard, a person receives zero points under Table 15 of the Impairment Tables where there is ‘no functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity’. The Tribunal notes that to be assigned a rating of 5 points under Table 15, which requires a ‘mild functional impact’, there must be corroborating evidence that a person has ‘rare episodes of involuntary loss of consciousness’ or ‘episodes of altered state of consciousness’, which occur ‘no more than twice per year’ and do not usually require hospitalisation. There is no such evidence in relation to Ms Cox. As a result, the Tribunal cannot assign any impairment rating for Ms Cox’s epilepsy.
Upper limb condition
In relation to Ms Cox’s upper limb condition, more precisely being a left shoulder impingement, the Tribunal is satisfied that it was ‘fully diagnosed’ as at the qualification period as required by subsection 6(4)(a) of the Impairment Tables. However, the Tribunal is not satisfied that this condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period because, on the evidence before it, reasonable treatment for this condition was continuing throughout and after the qualification period and there was expected to be ‘considerable improvement’ in Ms Cox’s condition during this time. In this regard, the Tribunal notes that:
(a)in a report dated 17 November 2016, Dr Philip Frawley, Orthopaedic Surgeon, stated that Ms Cox had ‘a slight restriction of movement in the left shoulder’ and recommended ‘a physiotherapy programme for three months’ followed by a further review of her condition (T10, page 116);
(b)in medical certificates dated 24 November 2016 and 24 January 2017, Dr English recorded this condition as ‘temporary’ and noted Ms Cox had previously undergone steroid injections and cortisone injections, was undergoing physiotherapy and that surgery was planned (T11, page 117; T12, page 118);
(c)in a report dated 9 February 2017, Dr Frawley recorded that ‘some recent physiotherapy strapping helped slightly’, but that she was still having shoulder pain. In order to clarify Ms Cox’s condition, Dr Frawley referred her for an MRI scan (T13, page 119);
(d)in a report dated 9 March 2017, following Ms Cox’s MRI which revealed that her rotator cuff was intact; there was slight muscle wastage and a ligament looked ‘a little thickened’, Dr Frawley recommended she try anti-inflammatories (noting that her toleration of these would need to be checked given her anti-seizure medication) and recorded that she needed to work on improving her scapular posture to minimise her left shoulder impingement. Dr Frawley recommended ongoing rotator cuff strengthening and further review in May 2017 (T14, page 120);
(e)in a medical certificate dated 11 April 2017, Dr English recorded that treatment for Ms Cox’s upper limb condition was physiotherapy and ‘NSAIDs’ [Nonsteroidal anti-inflammatory drugs] and that this condition was ‘temporary’ and ‘likely to show considerable improvement’ within two years (T15, page 121); and
(f)in medical certificates dated 23 June 2017 and 14 February 2018, the latter being during the qualification period, Ms Cox’s treatment for this condition was again listed as physiotherapy and NSAIDs and that it was ‘temporary’ and likely to show ‘considerable improvement’ within two years (T19, page 128; T30, page 177).

The above evidence indicates that, as at the qualification period, treatment for Ms Cox’s upper limb condition was ongoing with ‘considerable improvement’ expected within two years. Accordingly, the Tribunal is not satisfied that Ms Cox’s upper limb condition was ‘fully treated’ and ‘fully stabilised’ during the qualification period. Therefore, an impairment rating cannot be assigned to any impairment arising from this condition under the Impairment Tables. The Tribunal is also not satisfied that this condition was ‘permanent’ because the medical evidence indicated that it would likely not persist for more than two years as required under subsection 6(4)(d) of the Impairment Tables.
IBS and incontinence
In relation to Ms Cox’s IBS and incontinence, the Tribunal is not satisfied, given the lack of evidence before it, that either of these conditions was ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ in order to assign an impairment rating under the Impairment Tables.
There was no medical evidence before the Tribunal regarding Ms Cox’s incontinence.
There were two medical certificates from Dr Amir containing information regarding Ms Cox’s IBS. The first medical certificate from Dr Amir dated 23 June 2017 (T19, page 128) lists Ms Cox’s IBS as ‘permanent’, with symptoms being ‘abdominal pain, nausea and bloating’ and that it was ‘likely to persist’. There is no further information regarding this condition recorded in the medical certificate.
The second medical certificate from Dr Amir dated 12 March 2018 (T31, page 178), which was after the end of the qualification period, states that Ms Cox was diagnosed with IBS five years ago and regularly experiences abdominal pain, bloatedness and constipation, which alternates with diarrhoea. This condition can be exacerbated when she is ‘mentally stressed’. Dr Amir also stated that he did not expect any improvement in this condition in the following two years. Dr Amir does not indicate whether any treatment has been undertaken in relation to the IBS.
The Tribunal notes that on 6 November 2017, Ms Cox saw Dr Michael Payne, Specialist Surgeon, regarding ‘lower chest and abdominal pain’. In the report from Dr Payne to Dr Amir, he notes that Ms Cox has ‘no gastrointestinal symptoms’ and that ‘she does not have any gastrointestinal symptoms requiring a gastroscopy or colonoscopy’ (T24, page 139).
In this regard, there was no evidence before the Tribunal that Ms Cox has consulted a medical specialist, such as a gastroenterologist, regarding her IBS to confirm the IBS diagnosis that Dr Amir said had been made around 2013, of which there was also no evidence before the Tribunal. Additionally, there was no evidence of any treatment in relation to either of these conditions. Ms Cox told the Tribunal that she could not take medication for her IBS because it may react with her epilepsy medication and result in a seizure that would require notification to the RMS and cancellation of her driver’s licence for twelve months.
There was also no corroborating medical evidence of the extent to which the IBS and incontinence have any functional impairment on Ms Cox. Accordingly, the Tribunal is not satisfied that either or both of these conditions were ‘fully diagnosed’, ‘fully treated’ and ‘fully stabilised’ as at the qualification period. Therefore, the Tribunal cannot assign an impairment rating under the Impairment Tables for these conditions.
CONCLUSION
Ms Cox made her claim for DSP in December 2017. Although Ms Cox’s present circumstances are such that a different outcome may be reached if she lodged a new DSP claim with the Department, for the purpose of the current review before the Tribunal, it must apply the terms of the Act to her DSP application from December 2017 and throughout the qualification period ending on 7 March 2018. As a result, the Tribunal finds that during the qualification period Ms Cox could not be assigned an impairment rating under the Impairment Tables for any of her conditions. Ms Cox’s claim for DSP before the Tribunal therefore fails to satisfy subsection 94(1)(b) of the Act requiring a rating of 20 points or more under the Impairment Tables.
Because the Tribunal finds that Ms Cox did not have a total impairment rating of 20 points under the Impairment Tables, given the conjunctive nature of subsection 94(1) of the Act, it is not required to consider whether Ms Cox had a continuing inability to work pursuant to subsection 94(1)(c) of the Act in order to determine whether she meets this subsequent element of the DSP qualification criteria.
DECISION
The Tribunal affirms the decision under review pursuant to section 43(1)(a) of the AAT Act.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member W Frost.

........................................................................
Associate
Dated: 30 October 2019

Date of hearing: 16 October 2019

Applicant:

Solicitors for Respondent:

Ms Anna Cox

Ms Sarah Dinkha, Department of Human Services

[2019] AATA 4396

30 October 2019

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