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

Cunningham and Secretary, Department of Social Services (Social services second review) [2019] AATA 5 (7 January 2019)
Division:GENERAL DIVISION
File Number: 2018/2038
Re:Douglas Cunningham
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:7 January 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Deputy President J Sosso
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables – where Applicant has several conditions – whether conditions are fully diagnosed, treated and stabilised – whether conditions meet requirements for 20 points under the Impairment Tables – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
CASES
Shi v Migration Agents Registration Authority
(2008) 235 CLR 286

Gallacher v Secretary, Department of Social Security
[2015] FCA 1123; 68 AAR 1
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Deputy President J Sosso
7 January 2019
INTRODUCTION

Mr Douglas Cunningham (the Applicant) seeks a review of a decision of the Social Services and Child Support Division of this Tribunal (AAT 1) of 16 February 2018, which affirmed the decision of the Department of Human Services (Centrelink) to reject his claim for the Disability Support Pension (DSP).
The Applicant lodged his claim for the DSP on 22 November 2016 – Exhibit 1 T6 pp.

68 – 97, and listed his disabilities, illnesses or injuries as (p. 93): osteoarthritis, bone degeneration of the skeletal system, cracked right hip, 2 x ankle, 1 knee, 1 shoulder, rotator cuff requiring surgery, celiac disease, psoriasis, gluten intolerance and heart valve issues.
The Applicant indicated that he had not participated in any program of support in the past three years prior to his claim – Exhibit 1 T6 p. 95.
On 12 August 2017, the Applicant’s claim for the DSP was rejected by Centrelink – Exhibit 1 T25 pp. 165 – 166.
On 15 December 2017, an Authorised Review Officer (ARO) affirmed the decision – Exhibit 1 T30 pp. 182 – 186
The ARO accepted that the Applicant had one permanent condition: severe obstructive sleep apnoea. However, the ARO did not accept that the conditions of Parkinson’s disease, psoriatic arthritis, severe generalised osteoarthritis, rotator cuff syndrome and carpal tunnel syndrome were permanent as they had not been fully treated and stabilised – Exhibit 1 T30 p. 183.
The ARO gave the following reasons – Exhibit 1 T30 pp. 183 – 184:
“I have found that your condition of severe obstructive sleep apnoea is permanent and can be rated under the Impairment Tables.
In regards to your severe obstructive sleep apnoea, the medical report completed by Dr Binder dated 31 March 2017 confirms that this condition was diagnosed on 15 February 2017. The Job Capacity Assessor has recommended that this condition is fully diagnosed, treated and stabilised.
I have found an impairment rating of nil under Table 1 of the Impairment Tables is appropriate as your severe obstructive sleep apnoea does not cause you to suffer any functional impacts on activities requiring physical exertion and stamina.
I found your conditions of Parkinson’s disease, psoriatic arthritis, severe generalised osteoarthritis, rotator cuff syndrome and carpal tunnel syndrome cannot be considered permanent.
A permanent condition is one that has been fully diagnosed, treated and stabilised, is likely to continue for at least another two years, and it is unlikely that there will be any significant functional improvement within that time.
Your condition of Parkinson’s disease is not considered fully treated and stabilised at the time of your claim or the ensuing 13 weeks, as the medical evidence indicated that further investigations were to be undertaken and an adjustment to your medication was to occur. As this condition is not considered to be permanent under the Impairment Tables an impairment rating cannot be assigned.
Your conditions of psoriatic arthritis and severe generalised osteoarthritis are not considered fully treated and stabilised. At the time of your claim and within the ensuing 13 weeks you were awaiting a right hip replacement. The discharge summary from the Townsville Hospital dated 3 March 2017, indicates that you underwent surgery for a total right hip replacement on 21 February 2017. As these conditions are not considered to be permanent under the Impairment Tables impairment ratings cannot be assigned.
Your conditions rotator cuff syndrome and carpal tunnel syndrome are not considered to be fully treated and stabilised at the time of your claim or the ensuing 13 weeks, as the medical evidence indicates that you were being referred to a physiotherapy for your left shoulder rotator cuff syndrome and surgery was to be considered. As these conditions are not considered to be permanent under the Impairment tables impairment ratings cannot be assigned.
Your total impairment rating is therefore nil points.”
As previously noted, AAT 1 affirmed this decision on 16 February 2018 – Exhibit 1 T2 pp. 3 – 15.
Member Nalpantidis first dealt with the Applicant’s sleep apnoea condition and said – Exhibit 1 T2 pp. 6 – 7:
“19. The tribunal accepts Mr Cunningham suffers from severe obstructive sleep apnoea diagnosed by a sleep physician in February 2017 following a sleep study. The tribunal notes the diagnosis was made after his claim in November 2016. Mr Cunningham commenced CPAP therapy in March 2017, which had a positive impact on his function confirmed by follow-up sleep study and Mr Cunningham’s own evidence. Accordingly, the tribunal is unable to conclude that Mr Cunningham’s severe obstructive sleep apnoea was full diagnosed, treated and stabilised as at the date of his claim in November 2016…”
Member Nalpantidis also did not assign an impairment rating for the Applicant’s claimed Parkinson’s disease – Exhibit 1 T2 pp 7 – 9:
“20. On 14 March 2017, Dr Annemarie Vanheuven (neurologist) reported Mr Cunningham presents with signs and symptoms of Parkinson’s disease with a tremor first noticed in January 2017…
21. Dr Martin McGahan (general practitioner) provided a report dated 22 March 2017 certifying Mr Cunningham has Parkinson’s disease, which typically affects his handwriting…
22. A discharge summary by Townsville Hospital Neurology Clinic dated 27 July 2017 by Dr Phillip Amoabeng in consultation with Dr Paul Chapman (consultant neurologist), states Mr Cunningham was admitted for withdrawal of Madopar. The principal diagnosis is listed as functional movement disorder and psychosocial difficulties….His condition was currently assessed as a functional movement disorder and an elective admission as planned for 5 July 2017 under neurology for Madopar withdrawal…
23. A discharge summary from Townsville Hospital dated 18 August 2017 completed by Dr Ravindra Ramdasji Urkude (consultant neurologist), referred to Mr Cunningham being brought into hospital by ambulance following four episodes of loss of consciousness with shaking, on a background of a recent admission with a functional movement disorder…
26. Mr Cunningham told the tribunal that following further tests the initial diagnosis of Parkinson’s disease was changed to a functional movement disorder…
27. The tribunal accepts Mr Cunningham was under active medical management in relation to his (initially diagnosed) Parkinson’s disease, with specialist follow-up and hospital admissions in March 2017, July 2017 and August 2017. Following his hospital admissions the principal diagnoses were functional movement disorder and psychosocial difficulties, with uncertainty about his diagnosis of Parkinson’s disease in view of his non-response to medication, inconsistent examination and the history of rapid progression.
28. In light of the tribunal findings, it is unable to conclude that Mr Cunningham’s Parkinson’s disease, subsequently changed to a functional movement disorder and psychosocial difficulties, was fully diagnosed, treated and stabilised as at the date of his claim in November 2016. An impairment rating cannot therefore be assigned for the functional impact of this condition.”
Member Nalpantidis then dealt with the Applicant’s psoriatic arthritis and severe generalised osteoarthritis – Exhibit 1 T2 p. 10:
“36. There is no dispute that Mr Cunningham has long standing psoriatic arthritis and severe generalised osteoarthritis. He has managed this condition and maintained a mowing business until November 2016. Mr Cunningham has had multiple surgeries including a right knee replacement, a left hip replacement and more recently a right hip replacement on 21 February 2017. The tribunal accepts Mr Cunningham was under active medical management at the time of his claim for disability support pension on 18 November 2016. Further intervention, including a right hip replacement (which was undertaken some three months after his claim), may lead to significant improvement in his symptoms and function within the next two years. Mr Cunningham’s condition was therefore not fully treated and stabilised for the purposes of disability support pension. An impairment rating cannot therefore be applied for Mr Cunningham’s arthritic conditions.”
Finally, Member Nalpantidis dealt with the Applicant’s rotator cuff syndrome and carpal tunnel syndrome – Exhibit 1 T2 p. 11:
“41. On the limited medical information before the tribunal, it accepts Mr Cunningham suffers from left rotator cuff syndrome and carpal tunnel syndrome, diagnosed by appropriately qualified medical practitioners. Mr Cunningham has undertaken some physiotherapy for his shoulder condition and continues with self-managed exercises. If the condition does not improve there is a possibility of surgery. Mr Cunningham has attended a rheumatologist with further reviews planned.
42. The tribunal accepts Mr Cunningham’s upper limb conditions impact on his function. At the time of his claim Mr Cunningham was under active management and further intervention was planned, which may lead to significant improvement in his symptoms and function within the next two years. The tribunal has found, as at the date of his claim for disability support pension in November 2016, Mr Cunningham’s upper limb conditions were not fully treated and stabilised. An impairment rating cannot therefore be assigned for the functional impact of Mr Cunningham’s upper limb conditions.”
Consequently, Member Nalpantidis found that the Applicant had a total impairment rating of nil points and did not satisfy s 94(1)(b) of the Social Security Act 1991 (the Act).
A Hearing was conducted in Brisbane on 5 December 2018. The Applicant was self-represented and participated by conference telephone. The Secretary, Department of Social Services (the Respondent) was represented by Mr Bishop. No witnesses were called to give evidence.
BACKGROUND
The Applicant was born in 1953 and at the date of the Hearing was aged 65 years – Exhibit 1 T6 p. 68. The Applicant was self-employed running a lawn mower repair service from 1986 until November 2016, only ceasing operations due to a decline in the economy and progressive difficulty maintaining the physical requirements of the business – Exhibit 1 T6 p. 94, T20 p. 134. At the time of lodging his claim for the DSP, the Applicant was also engaged with his wife in a business involving the delivering of leaflets – Exhibit 1 T6 p. 94, T23 p. 151. At the time of his Job Capacity Assessment (May 2017) the Applicant still had a driver’s licence and owned a motor vehicle – Exhibit 1 T20 p. 134.
The Applicant graduated with a Degree in Mechanical Engineering and a Bachelor of Diesel Engineering and until November 2018 was in receipt of the Newstart Allowance. Since November 2018 he has been eligible to receive the Age Pension.
The material before the Tribunal allows the following findings to be made:
(a)the Applicant is a married man and has three adult children, none of whom live with him – Exhibit 1 T23 p. 151;
(b)the Applicant is 180 cm tall and weighs (in July 2017) approximately 135 kg – Exhibit 1 T23 p. 150;
(c)
the Applicant’s wife lives with him, and at the date of the Hearing was aged

63 years – Exhibit 1 T6 p. 71;
(d)the Applicant’s wife has also had a recent history of serious illness – Exhibit 1 T9 p. 102, T23 p. 147;
(e)the Applicant has experienced stress relating to financial and legal issues compounded with emotional stress relating to both his bad health and that of his wife – Exhibit 1 T23 p. 151;
(f)the Applicant and his wife live in a suburb of Townsville – Exhibit 1 T6 p. 69; and
(g)the Applicant is an owner/occupier of a low set house – Exhibit 1 T23 p. 147;
Dr Martin McGahan has been the Applicant’s treating General Practitioner since 2005.

In a report dated 30 November 2016, Dr McGahan opined as follows – Exhibit 1 T9 p. 102:
“He [the Applicant] has multiple medical conditions…
His principal issue is severe osteoarthritis and psoriatic arthritis, affecting all major joints, hands and feet. He has had a R knee replacement, L hip replacement and R hip replacement pending. His arthritis causes a secondary Carpal Tunnel syndrome, which further reduces his strength and dexterity in his hands, such that eating with a knife and fork is difficult. He is unable to do his usual work (small engine mechanic), and has difficulty dressing. He requires opiate analgesia for pain, which adds to his fatigue, poor concentration/memory and poor endurance. Sleep is poor despite his medications.”
In an attached Summary, Dr McGahan sets out the Applicant’s history from 1958. Important medical events noted, include – Exhibit 1 T8 p. 101:
·1975 – spinal cord injury t5-t6;
·2006 – osteoarthritis;
·2008 – hypertension;
·2010 – total right knee replacement;
·2012 – psoriatic arthritis; and
·2015 – left hip replacement.
The Applicant was examined on 30 January 2017 by Dr Lynda Barnes, Advanced Trainee in Rheumatology and Dr Jason Ly, Rheumatologist – Exhibit 1 T10 pp. 103 – 104.
The Doctors made the following diagnoses – Exhibit 1 T10 p. 103:
1.Psoriatic Arthritis
2.Severe generalised osteoarthritis;
3.Previous right knee and hip replacement;
4.Previous total left hip replacement;
5.Carpal tunnel syndrome; and
6.Rotator cuff syndrome.
The Doctors opined as follows:
“It was my pleasure to review Douglas today in clinic with Dr Ly. He reports he is booked for his right total hip replacement on 21 February 2017. He has had his last Golimumab injection last week and will not have any further until his orthopaedic surgeons are happy with the wound healing.
He has been otherwise well in the last six months with no infections. He still has generalised pains and we suspect this is more his degenerative arthritis, than his inflammatory.
We will continue with his current medication and have made an application to Medicare for his ongoing supply of Golimumab…
I have referred him…to physiotherapy for his left shoulder rotator cuff problems.”
On 15 February 2017, the Applicant underwent a diagnostic sleep study. The Sleep Physician Report prepared by Dr John Binder was as follows – Exhibit 1 T11 p. 105:
“Interpretation: Severe obstructive sleep apnoea/hypopnoea associated with snoring, severe oxyhaemoglobin desaturation, and moderate sleep fragmentation.
Recommendations: CPAP therapy is recommended. Measures including weight reduction, avoidance of alcohol and sedatives and attention to issues affecting sleep hygiene should also be emphasized.”
The Applicant was subsequently examined (10 March 2017) by Dr Jerry Minei, Respiratory and Sleep Physician, who noted that the Applicant had agreed to undergo a trial of CPAP therapy – Exhibit 1 T14 p. 116. On 28 April 2017, Dr Minei prescribed a CPAP machine and mask for the Applicant – Exhibit 1 T19 p. 127.
On 21 February 2017 the Applicant underwent a total right hip replacement at the Townsville Hospital – Exhibit 1 T12 pp. 109 – 111. In the Discharge Summary Report the following comments were made – Exhibit 1 T12 p. 110:
“He was admitted for an elective right total hip replacement. The procedure was uncomplicated. He was able to be discharged once mobilizing safely independently.”
On 14 March 2017 the Applicant was assessed by Dr Annemarie Vanheuven, Neurologist at the Department of Neurology & Neurophysiology at the Townsville Hospital – Exhibit

1 T15 pp. 117 - 118. Dr Vanheuven made the following diagnosis – Exhibit 1 T15 p. 117:
“Douglas is a 63 year old man who presents with symptoms and signs of Parkinson’s disease. He first noticed the tremor in January this year, but he tells me he has been having mobility issues before then and has had to retire in November 2016. He was unable to hold his tools and had become slower. He also has had 6 falls in the last year and is often not sure how he fell. He responds to his wife immediately and does not have loss of consciousness. As the Madopar wears off he feels like the tremors re-emerge under his skin. At rest and at night he has an uncomfortable feeling of having to move his legs which sounds like restless leg syndrome. He has very vivid dreams that he acts out at times. He has had a recent sleep study which showed severe sleep apnoea and lots of periodic limb movements of sleep and he is awaiting CPAP. I wonder if he also has some REM sleep behavioural disorder. He does not have dysphagia or dysphonia….”
Dr Vanheuven sent her report to Dr McGahan, and in a report dated 22 March 2017, Dr McGahan certified – Exhibit 1 T17 p. 121:
“This is to certify that Douglas has Parkinson’s disease and typically this has affected his handwriting. He is unable to reproduce his signature.”
The Applicant was admitted to the Townsville Hospital on 5 July 2017 and the stated reason for the admission was withdrawal of Madopar – Exhibit 1 T23 p. 140. The principal diagnosis was functional movement disorder and psychosocial difficulties. This admission followed an examination by Dr White, Neurologist on 19 June 2017. The following notes were made – Exhibit 1 T23 p. 140:
“Seen by Dr White Neurology clinic – initially thought to have Parkinson’s Disease, however this became a diagnostic uncertainty in view of non response to L-dopa (Madopar), inconsistent examination and history of rapid progression. Currently assessed as Functional Movement Disorder. Planned for elective admission 5/7/17 under Neurology for Madopar withdrawal.”
The Applicant was again admitted to the Townsville Hospital on 16 August 2017. The Discharge Summary provides the following information – Exhibit 1 T26 p. 167:
“Admitted under neurology with 4 episodes of loss of consciousness with shaking on the background of recent admission with functional movement disorder.
The episodes were described by his wife as shaking, eyes wide open, lasted 3 minutes, then settled – didn’t quite stop but some minor shaking persisted.
Break of a few minutes then second episode.
Third episode in ambulance.
No loss of control of bowels/bladder, no tongue biting.
On exam he had normal eye movements, no facial droop. UL – Intermittent tremor in right hand, not present with distraction…”
LEGAL OVERVIEW
To qualify for a DSP a person must satisfy the criteria contained in section 94 of the Social Security Act 1991 (the Act). So far as is relevant, they are:
(a)the person has a physical, intellectual or psychiatric impairment;
(b)the person’s impairments is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.

The Impairment Tables are located in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) which is made pursuant to section 26 of the Act and came into force on 1 January 2012.
Clause 5(1) of the Determination provides that in applying the Tables, regard must be had to the principles set out in Clause 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function based rather than diagnosis based (Cl 5(2)(b) and describe functional activities, abilities, symptoms and limitations (Cl 5(2)(c)). Consequently, the Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions (Cl 5(2)(d)).
The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them – Cl 6(1).
An impairment rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years – Cl 6(3).
To be a permanent condition it must be:
(a)fully diagnosed by a medical practitioner;
(b)fully treated;
(c)fully stabilised; and
(d)more likely than not, to persist for more than two years (Cl 6(4)).
In determining whether a condition has been fully diagnosed and treated the Tribunal is required to consider whether there is corroborating medical evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years – Cl 6(5).
A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected, even if reasonable treatment was undertaken or there is a medical or compelling reason for not undertaking such treatment – Cl 6(6).
A key requirement for consideration in this matter is to be found in Schedule 2, Part

2 Clause 4 of the Social Security (Administration) Act 1999. This provision provides that a DSP claim must be assessed on the Applicant’s medical conditions within 13 weeks from the date the claim is made.
This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 (at [34]) as follows:
“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 of 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 preferred 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.”
CONSIDERATION
Introduction
As explained above, the task of the Tribunal is to assess the Applicant’s claim for the DSP on his medical condition at the date he made his claim or within 13 weeks thereafter (the qualification period).
In this matter, the Applicant lodged a claim for the DSP on 22 November 2016 and, as such, the qualification period is from that date until 22 February 2017.
As the Tribunal’s mandate is to consider the matter afresh, there is no limitation on the Tribunal being presented with, and considering, material not produced to the original decision-maker or material that was produced subsequent to the decision under review – Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [99] per Hayne and Heydon JJ. In particular, the Tribunal is at liberty to admit into evidence, and consider, medical reports prepared after the expiration of the qualification period, subject to those reports relating to the state of the Applicant’s health during the qualification period – Gallacher v Secretary, Department of Social Security [2015] FCA 1123.
Does the Applicant suffer a physical, intellectual or psychiatric impairment?
In order to qualify for the DSP the Applicant must have a physical, intellectual or psychiatric impairment – s 94(1)(a).
It was neither contested at AAT 1 or in these proceedings that the Applicant suffers from severe obstructive sleep apnoea, psoriatic arthritis, severe generalised osteoarthritis, rotator cuff syndrome, carpal tunnel syndrome and functional movement disorder (FMD) which was initially diagnosed as Parkinson’s disease.
Does the Applicant’s impairments attract 20 points or more
The second requirement for an applicant to qualify for the DSP is that the applicant’s impairment attracts an impairment rating of 20 or more points under the Impairment Tables – s 94(1)(b).
Severe obstructive sleep apnoea
The Applicant did not list sleep apnoea in his DSP claim form (Exhibit 1 T6 p. 93) but the Respondent (Secretary’s Statement of Facts & Contentions (SSFC) para 34) accepts that he suffers from this condition.
Unfortunately, as the Respondent contends (SSFC para 35), this condition was not diagnosed until 15 February 2017 and was neither fully treated nor stabilised by the expiration of the qualification period.
Without repeating the medical evidence previously set out, it was only by 31 March 2017 that the Applicant had undertaken preparatory CPAP treatment, and, as was noted by Dr Binder, his quality of sleep on the study night was above average and he awoke feeling refreshed – Exhibit 1 T18 p. 122.
The Applicant underwent his Job Capacity Assessment (JCA) on 10 May 2017. In the report of the JCA it was observed that the Applicant had received his CPAP machine one week previously and there was an improvement in his condition – Exhibit 1 T20 p. 130. It was at that time, that the JCA concluded that the Applicant’s sleep apnoea condition was fully treated and stabilised. However, that was approximately ten weeks after the expiration of the qualification period.
It is clear then, that by 22 February 2017 the Applicant’s sleep apnoea condition had not been fully treated and stabilised, and it was only after he began using a CPAP machine on a regular basis that his condition was fully treated and stabilised.
In these circumstances the Tribunal is unable to assign any impairment points.
Parkinson’s disease/functional movement disorder
The Respondent accepts (SSFC para 39) that the Applicant suffers from FMD, which was originally diagnosed as Parkinson’s disease, and that this condition is now both permanent and now fully diagnosed. The Respondent, however, contends that during the qualification period this condition was not fully diagnosed, treated or stabilised.
The Applicant was examined by Dr Vanheuven on 14 March 2017, and in her report of 29 March 2017 she opined that he presented with symptoms and signs of idiopathic Parkinson’s Disease – Exhibit 1 T15 pp. 117 – 118. Despite being of the opinion that the Application may be suffering from Parkinson’s Disease, Dr Vanheuven observed some atypical features, including incontinence and memory problems.
The diagnosis of Parkinson’s Disease was repeated by Dr McGahan in his letter of 22 March 2017 – Exhibit 1 T17 p. 121.
It would appear that this was an incorrect diagnosis, as it became a “diagnostic uncertainty” by 19 June 2017 mainly due to the Applicant’s non-response to Madopar and the rapid progression of the symptoms – Exhibit 1 T23 p. 140. It was at that time that

Dr White (Neurologist) opined that the Applicant was suffering from FMD.
By 7 July 2017, the Applicant had been referred to, and admitted, to the Townsville Hospital Rehabilitation Team under Dr Chapman where he underwent intensive MDT rehabilitation – Exhibit 1 T23 p. 141.
At AAT 1 the Applicant gave evidence about the then state of his condition – Exhibit 1 T2 p. 8:
“26. Mr Cunningham told the tribunal that following further tests the initial diagnosis of Parkinson’s disease was changed to a functional movement disorder. He told the tribunal his memory is gone as a result of certain parts of his brain shutting down. He has attended three neurologists and they have not been able to give him a definitive diagnosis and there is no treatment. He no longer attends a neurologist. Dr Chapman has told him treatment options are limited and the condition is likely to persist indefinitely….Mr Cunningham told the tribunal he has ceased the (Madopar) medication previously prescribed for him for Parkinson’s disease. According to his psychologist there is no medication available for functional movement disorder. He attends a psychologist for this condition and there are plans to refer him to a psychiatrist in the coming months.”
It is clear that by the end of the qualification period there was uncertainty about the correct diagnosis of the Applicant’s condition. Indeed, if the correct diagnosis is FMD (and there appears a degree of uncertainty), then this diagnosis was not made until June 2017.
It is also clear from the Applicant’s evidence before AAT 1 in February 2018, that his condition was at that time neither fully treated nor fully stabilised.
As the Applicant’s FMD was not fully diagnosed, treated and stabilised by 22 February 2017, no impairment rating can be assigned for this condition.
Psoriatic arthritis and severe generalised osteoarthritis
The Respondent accepts (SSFC para 46) that the Applicant suffers from psoriatic arthritis and severe generalised osteoarthritis (the arthritic conditions) affecting all of his major joints, hands and feet. Further, the Respondent also accepts that the arthritic conditions are permanent and have been fully diagnosed.
The Respondent, however, does not accept that the arthritic conditions were fully treated and stabilised by the conclusion of the qualification period.
In support of this submission, the Respondent draws the Tribunal’s attention to the fact that the Applicant had a total right hip replacement on 21 February 2017 – Exhibit 1 T13 pp. 112 – 113. The JCA also concluded in the report of 10 May 2017 that the arthritic conditions were not fully treated and stabilised by the conclusion of the qualification period because further hip surgery was pending – Exhibit 1 T20 p. 130.
The Tribunal’s attention was also drawn to the following passage in the decision of AAT

1 – Exhibit 1 T2 p. 10:
“34. Mr Cunningham gave evidence that he had a right knee replacement in 2010, a left hip replacement in 2015 and a right hip replacement in February 2017. He anticipates having a left knee replacement in the next few months. The joint replacements have assisted his mobility but he still has limitations. For example, he cannot get up off the floor unaided, he cannot use a ladder and cannot get into a low-seated chair. He uses cushions on chairs for support and uses a lift chair. Mr Cunningham told the tribunal he may also need surgery to his ankles (joint replacements) within the next few years. In the meantime he has been advised to manage the best he can.”
It is usually the case that when a condition is diagnosed, the treating medical practitioner(s) is (or are) able to recommend a course of treatment that will deal with the condition and stabilise it, at least as much as is possible by extant medical science.
However, some people are afflicted by a degenerative disease which requires a plethora of medical interventions, none of which will cure the disease, but which may slow its progression, ease the pain suffered by the person or provide short to medium term relief. Arthritis (in each of its forms) is such a disease. In these situations, the condition is never actually stabilised; the treatment is palliative not curative. Importantly, viewed from the perspective of social security law, any further medical interventions will not result in any substantial improvement in functional capacity.
It is tolerably clear in this matter that the Applicant’s arthritic condition was correctly diagnosed, and it is also tolerably clear that he has been given appropriate medications and had appropriate surgical interventions. There is no suggestion from the material before the Tribunal that any of the medications prescribed or surgeries undergone has or will cure the Applicant’s underlying condition and provide anything other than short to medium term relief.
The evidence suggests that the Applicant will be afflicted with arthritis until his death. Viewed from this perspective how does a tribunal of fact correctly apply the tests of fully treated and fully stabilised mandated by Cl 6(5) and 6(6) of the Determination? If it is contended that these tests can only be satisfied when all appropriate medical interventions have been exhausted, then only death will satisfy that test. If that were the case, then people who are incapacitated by painful and long-term degenerative conditions would be deprived of receiving the DSP, despite the fact that due to no fault of their own, they are prevented from engaging in gainful employment.
A fair reading of the Determination, however, leads to a different conclusion. Clause 6 of the Determination approaches the tests of fully diagnosed, treated and stabilised from a practical perspective. Clause 6(5) draws attention to whether the applicant is receiving ongoing treatment or treatment is planned in the next two years. Clause 6(6) requires the decision-maker to determine, firstly, if an applicant has undertaken reasonable treatment for the condition and any further treatment is unlikely to result in significant functional improvement enabling the applicant to undertake work in the next two years. “Reasonable treatment” as defined by Cl 6(7) is one, inter alia, that can reliably be expected to result in a substantial improvement in functional capacity.
In this matter the Applicant is continuing to receive treatment but that treatment will not result in significant functional improvement in the sense contemplated by Cl 6(6) and 6(7).
A common-sense approach is required in such situations. The tribunal of fact should, after assessing the medical evidence presented, determine whether by the conclusion of the qualification period an applicant has:
(a)been correctly diagnosed;
(b)received appropriate medical treatment by the relevant medical experts ; and
(c)by such treatment been medically stabilised viewed from the prism of the ongoing nature of the degenerative disease and further medical interventions will not be likely to result in substantial improvement in functional capacity.
Moreover, as Dr McGahan noted in a Questionnaire dealt with below, the surgical interventions performed on the Applicant have not resulted in functional improvements such that he would be able to undertake work in the next two years.
Consequently, the Tribunal is reasonably satisfied that by the end of the qualification period, the Applicant’s arthritis conditions had been fully diagnosed, treated and stabilised.
It is not disputed that in determining whether impairment points can be assigned, the relevant Impairment Tables are Table 3 (lower limb function) and Table 4 (spinal function).
Annexure 2 to the SSFC is a Questionnaire completed by Dr McGahan and dated 11 September 2018.
Dr McGahan opined that it was “unlikely” that the Applicant would be able to undertake 15 hours of work per week in any job on a sustainable basis within the next two years. He also thought it unlikely that any treatment for the Applicant’s lower limb function would result in a significant improvement in his level of impairment that would allow him to undertake 15 hours work per week within two years.
Dr McGahan was also asked a series of questions about the Applicant’s hip replacement surgery in February 2017. He opined that the surgery was unlikely to result in a significant improvement in the Applicant’s functioning, such that he could return to work, but was of the view that it would significantly relieve the pain he was experiencing.
In response to a Question about whether the Applicant has any equipment, devices or modifications to this home to help him stand up from a sitting position, Dr McGahan listed the following: lift chair, elevated chair, rails and raised toilet seat, shower chair and rails in shower.
Dr McGahan stated that the Applicant can get up from a sitting position without the assistance of another person, as long as the chair is high enough, but he experiences pain in his back, knees and ankles. Moreover, Dr McGahan opined that the Applicant could perform that movement more than once a day, provided he rested for one to two minutes after standing. This state of affairs was said to have existed during the qualification period.
Further, Dr McGahan said that the Applicant could walk from the carpark into a shopping centre without assistance from another person, but was limited by the pain he experienced, and the need to rest. Nonetheless, the Applicant has difficulty walking on uneven surfaces and needs assistance walking around a shopping centre as he

“gets lost”. Again, Dr McGahan stated that these limitations existed during the qualification period.
Dr McGahan observed that the Applicant could not use public transport without assistance from another person, because it was too painful and difficult getting into a seat. This problem existed, according to Dr McGahan, during the qualification period.
In addition to the above limitations, Dr McGahan also opined that the Applicant was restricted with respect to household duties and was only capable of sitting and peeling vegetables and watering the garden whilst seated. These limitations existed, according to Dr Mc Gahan, during the qualification period.
Finally, Dr McGahan observed that the Applicant can sit, but needs posture changes due to the pain he experiences. He was of the view that the Applicant is prevented from performing clerical/sedentary work due to his tremor and cognitive issues. In this instance, however, Dr McGahan opined that both the tremor and cognitive problems were only just beginning during the qualification period.
The evidence given by the Applicant to the AAT 1 and the information provided at the Hearing does not support the degree of functional impairment during the qualification period opined by Dr McGahan.
First, it is not contested that the Applicant’s tremors and cognitive problems have, unfortunately, rapidly worsened during the course of 2018. As Dr McGahan pointed out, those problems were at a relatively early stage during the qualification period and did not, at that time, have a major disabling effect.
Second, during the qualification period and at least up to the time of the AAT 1 Hearing, the Applicant was operating, with his wife, a small leaflet delivery business. The Applicant informed AAT 1 that he assisted his wife to roll out the leaflets and put a rubber band around each one so that his wife could deliver them around the neighbourhood. As Member Nalpantidis observed, this indicated a reasonable hand function – Exhibit 1 T2 p. 9.

Third, during the Hearing the Applicant testified that he had been using a walking stick since approximately 2014, but had only began using a wheelchair in 2018. This meets the requirements of Descriptor (2) (b) for the assignment of five points under Impairment Table 3. However, it does not meet the requirements of Descriptor (3) for the assignment of ten points under Table 3, namely moving around independently using a wheelchair or moving around independently using walking aids, such as a quad stick, crutches or walking frame. The walking aids given as examples, are required for persons having a greater degree of disability than those who can mobilise with a walking stick.
Fourth, the Applicant stated during the Hearing that he could:
(a)walk up the stairs (3 steps) at his home without assistance (see Exhibit 1 T23 p. 146);
(b)walk during the qualification period, to the local fish and chip shop, which was a distance of about three blocks and took 25 minutes;
(c)catch a bus by himself (see also Exhibit 1 T20 p. 131);
(d)stand up without assistance; and
(e)walk around a shopping centre with the aid of a walking stick for a couple of hundred yards.
Fifth, the Applicant informed the Tribunal that his condition had deteriorated relatively rapidly, and that up to 2016 he was able to walk up to 5 - 6 km each day.
Finally, reference can be made to the Townville Hospital Discharge Summary (Exhibit

1 T23 pp. 140 – 157. The Applicant’s function on discharge from rehabilitation on 27 July 2017 was reported by Mr Elliott Keenan, Physiotherapist, as follows – Exhibit 1 T23 p. 146:
“Sit to stand: Independent with use of UL’s
Standing alignment and balance: Independent, nil signs of balance disturbance
Transfers: Independent nil aid
Mobility: Independent nil aid
Stairs: 16 steps without using rail independently.”
Mr Keenan concluded as follows – Exhibit 1 T23 p. 147:
“Patient has achieved primary goal of being independent with mobility +/- aid and independent with all ADL’s prior to discharge home.”
In these circumstances, the Tribunal is only able to assign the Applicant five impairment points under Table 3. The evidence disclosed that the Applicant did have difficulties walking around a shopping mall or supermarket without a rest and had difficulty climbing stairs and further needed to mobilise with the aid of a walking stick. However, during the qualification period, the Applicant was able to walk outside his home, was able to climb stairs and was able to stand for more than five minutes. During the qualification period the Applicant only needed the aid of a walking stick and did not use a wheelchair or use other walking aids. This is no longer the situation, and as became clear during the Hearing, the Applicant’s condition has rapidly deteriorated during the course of 2018. If the Tribunal were assigning points at this point of time and not as at 22 February 2017, then an assignment of at least ten points would have been probable.
The other Impairment Table that may apply is Table 4 -Spinal Function. This Table, nonetheless, only applies if the claimant has “arthritis or osteoporosis involving the spine”. There is no medical evidence before the Tribunal that would allow the assignment of points under this Table. Although various medical reports state that the Applicant’s osteoarthritis and psoriatic arthritis affect all of his major joints, hands and feet (Exhibit

1 T9 p. 102, T10 p. 103), there is no medical evidence specifically diagnosing the arthritic conditions impacting on the spine. However, even if there was such a diagnosis, the evidence before the Tribunal would not permit the assigning of more than five points under Table 4.
During the qualification period there is no evidence, for example, that the Applicant was:
(a)unable to sit in, or drive a car for at least 30 minutes (see also Exhibit 1 T20 p. 133);
(b)unable to sustain overhead activities;
(c)having difficulty moving his head to look in all directions;
(d)unable to bend forward to pick up a light object; or
(e)needed assistance to get out of a chair.
When the Applicant underwent his JCA on 10 May 2017, he stated that he tried to help with some home chores including, vacuuming occasionally and hanging out the washing occasionally – Exhibit 1 T20 p. 129.
The Applicant was also treated by Ms Sarah Sharman, Occupational Therapist. She made the following comments about his upper limb program – Exhibit 1 T23 p. 149:
“Doug’s program focused on functional fine motor activities including various strength pegs at different heights, nuts and bolts, writing and opening a range of types of locks with keys. He also completed some therapy exercises focusing on bilateral coordination.”
The report of Ms Sharman discloses no particular problems with overhead activities or bending forward. Moreover, this report was prepared after the conclusion of the qualification period and after the Applicant’s functional capacities had further declined.
In short, there is scant material before the Tribunal about the Applicant’s spinal function. There is evidence that the Applicant suffered a spinal cord injury in 1975 (Exhibit 1 T8 p. 101), but there is no evidence about the effect (if any) that his arthritic conditions are having on his spine. Assuming that there is a negative impact on spinal function, the degree of impairment at the expiration of the qualification period was mild, and only five points could be assigned.
Rotator cuff syndrome and carpal tunnel syndrome
The Respondent accepts that the Applicant suffers from rotator cuff syndrome and carpal tunnel syndrome (the upper limb conditions) and that these are permanent and have been fully diagnosed – SSFC para 56. However, the Respondent submits that there is insufficient corroborating evidence to conclude that the upper limb conditions were fully treated and stabilised during the qualification period.
The Tribunal agrees that the Applicant has been properly diagnosed as suffering from the upper limb conditions, and that this diagnosis was made before the conclusion of the qualification period – Exhibit 1 T10 p. 103. The diagnosis was made by Dr Ly (assisted by Dr Barnes) who examined the Applicant on 30 January 2017 and recommended the following treatment – Exhibit 1 T10 p. 103:
“I have referred him to physiotherapy for his left shoulder rotator cuff problems.”
By the time the Applicant underwent his JCA (10 May 2017) the following progress had been made – Exhibit 1 T20 p. 131:
“Mr Cunningham stated that he has undertaken 6 weeks of physiotherapy and that he does exercised [sic] three times per day in order to increase strength. At present he is unable to pick up a bag of groceries. He stated if further progress isn’t made he will have to undergo surgery.”
The Applicant gave the following evidence at AAT 1 – Exhibit 1 T2 p. 11:
“40. Mr Cunningham told the tribunal further surgery is planned for his carpel tunnel syndrome (bilateral) and shoulders, but this will occur in stages and he will have to stop his Golimumab injections (which are currently monthly) as this medication impacts on his ability to heal.”
It is therefore clear that by the conclusion of the qualification period, the Applicant’s upper limb conditions were still being treated and had not stabilised. Indeed, by the conclusion of the qualification period the Applicant had, at most, only just commenced physiotherapy treatment. In these circumstances the Tribunal is not in a position to assign any impairment points under Table 2.
Overall impairment rating
The Tribunal is only able to assign five impairment points to the Applicant under Table 3.
Continuing inability to work
As the Applicant can only be assigned 5 points under Table 3, it is unnecessary to consider whether he has a continuing inability to work under s 94(1)(c) of the Act.
If, however, the Applicant had been assigned 20 points in total under more than one Table, the Tribunal would have accepted the contentions of the Respondent (SSFC paras 62 -84) that on the available evidence the Applicant has not satisfied the requirements of

s 94(2) of the Act.
CONCLUSION
The decision under review is affirmed.

I certify that the preceding 107 (one hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

.........................[Sgd]...............................................
Associate
Dated: 7 January 2019

Date of hearing: 5 December 2018

Applicant: In person

Advocate for the Respondent: Mr Chris Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2019] AATA 5

7 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	5 December 2018
Applicant:	In person
Advocate for the Respondent:	Mr Chris Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers