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

Currie and Secretary, Department of Social Services (Social services second review) [2018] AATA 4617 (14 December 2018)
Division:GENERAL DIVISION
File Number:2018/0549
Re:Rosanne Currie
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans
Date:14 December 2018
Place:Perth

The Reviewable Decision is affirmed.
...............[sgd].........................................................
Senior Member Dr M Evans
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant has an impairment rating of 20 points or more under Impairment Tables – back pain – right shoulder and hand pain – heart disease – depression –
self-reporting of symptoms – whether sufficient medical evidence of functional impact – AAT Tier 1 decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 23(1), s 26, s 26(1), s, 94(1), s 94(1)(b), s 94(1)(c),
s 94(1)(c)(i), s 94(2), s 94(2)(aa), s 94(3B), s 94(5)
Social Security (Administration) Act 1999 (Cth) – Sch 2 s 4(1)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 64 AAR 466
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 3, s 6, s 5(2), s 5(2)(b), s 5(2)(c), s 6(4),
s 11, Table 1, Table 2, Table 4, Table 5
REASONS FOR DECISION
Senior Member Dr M Evans
14 December 2018
BACKGROUND TO THE APPLICATION

The Applicant lodged a claim for a disability support pension (DSP) on 22 May 2017 (T30, page 182). An attending doctor’s statement from Dr Stephen Hodby dated 4 April 2016 stated the Applicant’s conditions to be depression, back pain – cervical spondylosis and lumbar spondylosis, shoulder capsulitis, vascular heart disease and cardiomyopathy/hypertension/congestive cardiac failure (T25, page 140).
On 30 June 2017 an occupational therapist conducted an assessment of the Applicant for DSP medical eligibility with the recommendation being that the Applicant was “manifestly medically ineligible” (T32, page 185).
On 3 July 2017 the Department of Human Services (the Department) rejected the Applicant’s claim for a DSP on the basis that she was not eligible because she did not have an impairment rating of 20 points or more under the Impairment Tables (T33, page 187).
The Applicant requested a review of the decision of 3 July 2017 (T37, page 202).
A job capacity assessment (JCA) report was undertaken by the Department on

6 September 2017, with a submitted date of 15 September 2017 (T36, page 191). The Job Capacity Assessor gave the Applicant a total impairment rating of 10 points, being comprised of five points under “Table 4 – Spinal Function” and five points under “Table 1 – Functions requiring Physical Exertion and Stamina” (T36, pages 196-198). The Job Capacity Assessor assigned the Applicant a baseline work capacity of 8-14 hours per week, with a capacity for work within two years of 15-22 hours per week with intervention (T36, page 199). The JCA report also noted that the Applicant was currently involved in voluntary work of 30 hours per week, however at the hearing the Applicant stated that she had only ever undertaken voluntary work of 15 hours per week (transcript, page 14).
A letter from the Department was sent to the Applicant on 23 October 2017 stating “[a]s you have requested, I have sent the decision to be reviewed by an Authorised Review Officer.” On 26 October 2017, an authorised review officer (ARO) from the Department affirmed the decision dated 3 July 2017 (T38, page 203).
On 14 November 2017 the Applicant applied to the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT Tier 1) (T2, page 8) for a review of the ARO’s decision of 26 October 2017 (T38, pages 203-212).
On 9 January 2018 the AAT Tier 1 affirmed the 26 October 2017 decision of the ARO to reject the Applicant’s claim for a DSP (the Reviewable Decision) (T2, page 7).
On 6 February 2018 the Applicant lodged an application for a review of the Reviewable Decision (T1, page 1) in the General Division of the Administrative Appeals Tribunal (the Tribunal).
ISSUE
The overall issue for determination by this Tribunal is whether the Applicant met the criteria in s 94(1) of the Social Security Act 1991 (Cth) (the Act) in order to qualify to receive a DSP.
The specific issues to be addressed in determining whether the Applicant met the criteria to be qualified for a DSP requires an assessment of the following:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment during the qualification period;
(b)if so, whether the impairment was fully diagnosed, treated and stabilised during the qualification period and attracted a rating of 20 points or more under the impairment tables; and
(c)whether the Applicant had “a continuing inability to work” under s 94(1)(c)(i) of the Act.
MATERIAL BEFORE TRIBUNAL
The application was heard by the Tribunal on 10 September 2018. The Applicant was self-represented and was accompanied by her son as her support person. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore Lawyers who appeared in person. Oral submissions were made by both parties. The Applicant gave oral evidence to the Tribunal at the hearing.
The following documentary material was before the Tribunal and was admitted into evidence at the hearing:
(a)Applicant’s application for review dated 6 February 2018 with attached supporting documents (Exhibit A1);
(b)email from Applicant dated 23 July 2018 with attachments including ARO decision dated 26 October 2017 and the AAT Tier 1 Decision dated 9 January 2018 (Exhibit A2);
(c)
letter from Dr Stephen Hodby, the Applicant’s General Practitioner, dated

8 January 2018 (Exhibit A3);
(d)letter from Kirra Donnelly of Chorus dated 8 August 2018 (Exhibit A4);
(e)Respondent’s section 37 documents (T Documents) numbered T1 to T45 (Exhibit R1);
(f)Respondent’s Statement of Facts, Issues and Contentions dated 1 August 2018; (Exhibit R2); and
(g)
email from Respondent regarding Program of Support calculations dated

9 April 2018 (Exhibit R3).
The documents submitted by the Applicant as Exhibits A1 through to Exhibit A3 are also contained in the Respondent’s section 37 documents (Exhibit R1).
The Tribunal also allowed the Applicant additional time after the hearing to obtain medical evidence regarding her heart condition because she had an upcoming appointment with her cardiologist in approximately mid-October. As a result, the Tribunal had before it a letter from the Applicant’s cardiologist, Dr Brendan McQuillan dated 2 October 2018.
The Tribunal also had before it the Respondent’s Supplementary Statement of Facts, Issues and Contentions dated 9 November 2018.
The Tribunal also requested that the Respondent check the calculations regarding the number of days that the Applicant had completed a program of support because the Applicant was of the opinion that some of her volunteer work had not been included in the calculation. As a result, the Tribunal had before it a copy of the re-run calculations from the Respondent dated 12 October 2018 and documentation from the Applicant including volunteer time sheets.
The Tribunal has considered all the material before it as well as the parties’ submissions and the oral evidence of the Applicant. The Tribunal is satisfied that the parties had an adequate opportunity to be heard by the Tribunal.
LEGISLATION
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; …
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26 Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
(Original emphasis.)
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables states:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’s condition causing that impairment is permanent; and
…
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years...
Section 5(2) of the Impairment Tables states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(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.
Sections 5 and 6 of the Impairment Tables outline requirements that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), 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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
Section 11 of the Impairment Tables states:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied….
Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
(Original emphasis.)
Section 94(3B) of the Act provides that “[a] person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.”
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
Section 94(5) of the Act continues on to define “work” as follows:
work means work:
(a)that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b)that exists in Australia, even if not within the person’s locally accessible labour market.
Qualification Period
Section 4(1) of Sch 2 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act) provides for a 13 week qualification period from the date of claim:
(1)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.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of the application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 22 May 2017. Consequently, the relevant qualification period is

22 May 2017
until 21 August 2017 (the Qualification Period). At the hearing, the Applicant appeared to be under the misunderstanding that this Qualification Period may have been extended after she sought a review of the ARO’s decision (transcript, page 12). It was explained to her by the Tribunal that the Qualification Period was not extended by the review process.
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services [2015] FCA 1123 (Gallacher), Besanko J (at [26] and [28]) stated that he agreed with the following statement from the judgment of Gyles J (at [1]) in Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR at [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions or the grant of a Disability Support Pension. There is little authority in the court concerning the operation of these important provisions. It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.
In Gallacher, Besanko J (at [27] and [28]) further stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 64 AAR 466 at [31]:
In my view, in the case of DSP, it is implicit in clause 4 of Sch 2 of the Administration Act, that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the applicant’s condition during the relevant period.
Impairment rating
The following Impairment Tables are applicable to the Applicant’s claimed conditions:
(a)Depression: “Table 5 – Mental Health Function” (Table 5);
(b)Cervical spondylosis and lumbar spondylosis (Back pain): “Table 4 – Spinal Function” (Table 4);
(c)Right shoulder and hand pain (shoulder capsulitis): “Table 2 – Upper Limb Function” (Table 2); and
(d)Vascular heart disease and cardiomyopathy/hypertension/congestive cardiac failure (heart disease condition): “Table 1 – Functions requiring Physical Exertion and Stamina” (Table 1).

To determine the appropriate impairment points to be assigned to the Applicant’s conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
QUALIFICATION CRITERIA FOR DSP
Whether the Applicant suffered from any impairments during the Qualification Period
The Respondent accepts that the Applicant suffered from the impairments of depression, back pain, shoulder capsulitis and the heart disease condition during the Qualification Period (Exhibit R2, para [20]).
Whether the impairments were fully diagnosed, treated and stabilised during the Qualification Period and attracted a rating of 20 points or more
Depression
The Respondent accepts that the depression condition was fully diagnosed, but submitted that it was not fully treated and stabilised during the Qualification Period. Alternatively, the Respondent contends that if the Tribunal finds the Applicant’s depression to be fully treated and stabilised, then the condition has no significant functional impact (Exhibit R2, paras [52]-[53]).
The difficulty for the Tribunal with respect to the Applicant’s depression is that there is minimal evidence as to whether the condition was fully treated and stabilised during the Qualification Period. In a Medical Report for DSP completed by Dr Hodby dated

9 August 2013, “depression” was listed under the question “Does the patient have any other medical conditions that are generally well-managed and that cause a minimal or limited impact on ability to function?” (T9, page 106). However, the date of this report is several years before the Qualification Period.
In a letter dated 26 April 2016, Dr Richard Magtengaard, a Consultant Psychiatrist, referred to the “ongoing management” of the Applicant’s condition, “that we still have some way to go to completely lift the depressive layer”, and that he had recommended additional anti-depressant medication (T26, page 148). This letter suggests that over a year prior to the Qualification Period, the Applicant’s depression was not fully treated and stabilised.
The JCA report dated 15 September 2017 (T36, page 195) states that the Applicant reported that her depression was first diagnosed by her general practitioner 25 years ago. It further states that the Applicant reported that she had seen a clinical psychiatrist on approximately five occasions between April 2016 and December 2016, but “did not get a lot out of it”, and that she did not engage in any counselling during 2017. The JCA states that the Applicant had ceased to use the medication “Valdoxen” (sic) as she could not afford it, but continues to use “Cymbalta”, and that she felt she was coping with her mental health (T36, pages 195-196). This suggests that the Applicant’s depression may have been fully treated and stabilised.
Much of this information in the JCA report was confirmed by the Applicant in the following exchange under cross-examination (transcript, page 37):
MS JONES-BOLLA:   Ms Currie, if I can take you to page 148, which is just the page before that. Dr Magtengaard?
APPLICANT:   Magtengaard, yes.
MS JONES-BOLLA:   Is he your psychiatrist?
APPLICANT:   I haven’t seen him for quite some time.
MS JONES-BOLLA:   And you first saw him in April 2016?
APPLICANT:   Yes.
MS JONES-BOLLA:   And in that letter there at T26 he recommends that you trial Valdoxan and Cymbalta amongst a couple of other medications there?
APPLICANT:   Yes.
MS JONES-BOLLA:   If I can take you back to that JCA report, at page 195. You reported to the JCA at that appointment on 6 September 2017 that you ceased Valdoxan because you couldn’t afford it any longer but you continued on Cymbalta?
APPLICANT:   Yes. The Valdoxan was just incredibly expensive and that’s why I stopped seeing Dr Magtengaard as well because it was just more than I could afford.
MS JONES-BOLLA:   And you didn’t engage in any other counselling during 2017?
APPLICANT:   So, no.
MS JONES-BOLLA:   And you also reported to the JCA [Job Capacity Assessor] at page 196 that you felt you were coping with your mental health condition?
APPLICANT:   Yes.
MS JONES-BOLLA:   Yes?
APPLICANT:   Yes, I usually am.
MS JONES-BOLLA:   For example you reported that you have friends, you socialise with them. You go out for lunch?
APPLICANT:   Yes, yes.
MS JONES-BOLLA:   And you also reported that you enjoyed reading and can concentrate for 30 minutes at a time. You would agree with that?
APPLICANT:   Yes.
The information in the JCA report and in the above exchange under cross-examination suggests that the Applicant’s depression may have been fully treated and stabilised during the Qualification Period. However, in the absence of further medical evidence, it is difficult to reach a definite conclusion. Therefore, although the Applicant’s depression had been diagnosed, the Tribunal cannot find that the Applicant’s depression was fully treated and stabilised due to insufficient corroborating medical evidence.
This same evidence, discussed above in paragraphs [45] and [46], also suggests that the Applicant experiences no significant functional impact from this condition under Table 5 of the Impairment Tables. Further, even if the Tribunal was able to find that the Applicant’s depression was fully treated and stabilised, there is insufficient corroborating medical evidence, as required by Table 5, as to any functional impact experienced by the Applicant, and to enable the Tribunal to assign any impairment rating.
Back pain
The Respondent accepts that the Applicant’s back pain condition was fully diagnosed, treated and stabilised during the Qualification Period. The JCA reports dated 28 January 2014 (T12, pages 112-113) and 15 September 2017 (T36, pages 192-193) also recognise this condition to be fully diagnosed, treated and stabilised.
A letter from Dr Jay Ives from SKG Radiology to Professor Gabriel Lee, dated
3 September 2008, some nine years before the Qualification Period, noted that the Applicant had “previous multiple surgeries” (T5, page 93) and concluded with the following comment: “Moderate spinal canal stenosis and minor foraminal stenosis at L3/4. Appearances have not significantly changed since the previous examination of April 2008.”
In a letter to Dr Healy dated 15 October 2014 (T16, pages 124-125), Professor Lee stated that “[o]ver the past month or so, she [the Applicant] has experienced severe exacerbation of her lower back pain.” Professor Lee further stated that:
The MRI scan of her lumbo-sacral spine shows the previous instrumentation/fusion. She has satisfactory spinal canal and there is no evidence of canal stenosis. She has no significant evidence of nerve compression. She does have evidence of facet joint arthropathy at multiple levels of her lumbar spine.
From what I see today, there is no reason to think that she needs surgical intervention.
I have suggested that Mrs Currie would perhaps reorientate her goals and now focus on perhaps a physical program of core-strengthening etc. to see if this would help her. I suspect that her body and muscles may have been quite deconditioned from her recent troubles with her right shoulder.
I noted that Mrs Currie had previously seen Dr Max Majedi, for pain management also.
For now, I have reassured Mrs Currie that I do not see any sinister issues on her lumbar spine MRI and would have thought that things should improve with conservative management over the next few months (T16, pages 124-125).
In a medical report dated 24 November 2015 (T23, page 136), Dr Brian Galton-Fenzi, Occupational and Environmental Physician, Musculoskeletal and Pain Management, stated that:
Examination of the lumbar spine identifies a substantially reduced range of motion on her own volition. The multiple surgical operation scars in the lower lumbar region were noted. Neurologically, both lower limbs were normal and symmetrical.
In a letter dated 24 July 2017 (T35, page 190), Dr Hodby stated that the Applicant

“… suffers from long term back, neck and shoulder pain aggravated by exercise together with chronic depression.” Dr Hodby further stated that “[h]er back, neck and shoulder pain prevent work involving lifting or sitting for excessive periods.”
In the JCA report dated 15 September 2017, the Applicant reported that she used Panadeine Forte as needed and had completed pain management programs in the past and continues to participate in hydrotherapy twice per week (T36, pages 192-193). In this JCA report, the Applicant also “reported that she can remain seated comfortably for 15 minutes, and longer with some discomfort. She reports that she is able to drive for 30 minutes ‘if she has to’” and that, she could bend to knee level and straighten up again, but with difficulty (T36, page 197). The JCA report also stated that the Applicant reported being able to pick up a light item from the floor if she could support herself on something and that she could normally turn her head left and right but was hindered by her shoulder issue (T36, page 197).
At the AAT Tier 1 hearing, the Applicant gave evidence that she continued to have pain, stiffness and restricted movement in her back and that she could drive her car if necessary but only for short trips of about 15 minutes (T2, page 12). She also gave evidence that she made occasional trips to the shops but did most of her shopping online (T2, page 12). She gave evidence that she lived alone and managed her domestic chores “to a degree” but had help with housework and gardening from Community Care once a fortnight (T2, page 12).
The information reported in the JCA report and the evidence of the Applicant at the AAT Tier 1 hearing involve a self-reporting of symptoms. The Tribunal accepts the Applicant’s evidence and believes her to be truthful when describing her functional impact. However, this is insufficient evidence under the Impairment Tables. Specifically, the “Introduction to Table 4” in the Impairment Tables states that “self-report of symptoms alone is insufficient” and requires “corroborating evidence of the person’s impairment”. Unfortunately, the Tribunal does not have sufficient corroborating evidence of this functional impact with reference to the activities listed in Table 4 of the Impairment Tables. The only evidence regarding functionality is that of Dr Hodby who stated that the Applicant could not do lifting work or sit for extended periods. More specific evidence is required to allow the Tribunal to reach a conclusion about the functional impact and the appropriate number of points. For example, a report from the Applicant’s treating doctor, a medical specialist, physiotherapist or other rehabilitation practitioner, which details the functional impact on the Applicant of the impairments in accordance with the activities listed in Table 4 of the Impairment Tables.
Therefore, although the Tribunal accepts that the Applicant’s back condition has been fully diagnosed, treated and stabilised, it cannot assign any points to the Applicant’s back pain condition due to an absence of medical evidence regarding functional impact.
Right shoulder and hand pain
The Respondent accepts that the right shoulder and hand pain condition was fully diagnosed, treated and stabilised during the Qualification Period but submits that the condition only attracts an impairment rating of five points under Table 2 of the Impairment Tables, as opposed to the impairment rating of 10 points given by the AAT Tier 1 (Exhibit R2, paras [37] – [39]).
At the Tribunal hearing, the Applicant submitted that she thought that the impairment rating of 10 points given by the AAT Tier 1 was correct. She further submitted that there were some factual inaccuracies in the JCA report with respect to this condition. Specifically, the Applicant submitted that “there was a misunderstanding about my shoulder surgery” in the JCA report (transcript, page 11). The Applicant submitted that the first inaccuracy was the conclusion in the JCA that the condition was diagnosed, but not fully treated or stabilised because the Applicant was due to have a shoulder reconstruction (T36, page 194). The Applicant stated that the operation was “a possibility, not a definite” (transcript, page 12) and that her doctor had advised not to proceed with the surgery because of her previously having “septic arthritis” (transcript, page 13). This is supported by a letter from Dr Hodby dated 8 January 2018 (Exhibit A3) which stated that “[t]he treatment to the shoulder has been completed and there is no further anticipated treatment particularly as further interventions in this shoulder would be ill advised given the previous history”. The Applicant argued that although the letter was written outside of the Qualification Period, that it was nevertheless relevant to that period (transcript, page 13). The Tribunal accepts that, based on these submissions from the Applicant, the Applicant’s shoulder condition was fully diagnosed, treated and stabilised during the Qualification Period, as conceded by the Respondent. Consequently, the issue upon which the parties disagree which requires determination by the Tribunal, is the number of impairment points to be given to the right shoulder and hand pain condition under Table 2 of the Impairment Tables.
At the Tribunal hearing, the Applicant also raised concerns that there were errors in the JCA report with respect to the functional impairment caused by this condition. The Applicant referred to the following sentence from the JCA (T36, page 193):
The claimant indicastges (sic) that she remains able to fasten buttons, tie laces and handle coins. She is able to carry a light, large item with both hands if required.
In summary, the Applicant’s submissions were that the sentence should be corrected to read as follows:
The claimant indicates that she remains unable to fasten buttons, tie laces and handle coins. She is able to carry a light, large item with both hands if required but has difficulty picking up the item (corrections in bold) (transcript, pages 6-7).
The Tribunal accepts the Applicant’s corrected description as being reliable and honest. However, the problem that the Tribunal is presented with is that, as noted above, there is an absence of medical evidence regarding functionality. This is because Table 2 of the Impairment Tables states that the Tribunal cannot rely on the self-reported symptoms of the Applicant to determine the amount of impairment points. Corroborating medical evidence is required.
There is minimal medical evidence before the Tribunal concerning the functional impact of this condition. A letter from Dr Max Majedi, a specialist pain medicine physician, stated the background to his examination was “lifting something heavy resulting in neck and shoulder pain” dated 25 February 2013 (T6, page 95). Dr Majedi reported that the Applicant had frozen shoulder, trapezius myalgia and suprascapular neuralgia affecting the right arm and that the Applicant was “[r]ecovering from tendon damage with conservative measures”. Dr Majedi further stated that “[o]n examination, her range of movement has improved which is reassuring” and that he had referred her to a hand specialist “for more specific upper limb-related treatment”.
A letter to Dr Hodby from Dr Booth of the Perth Shoulder Clinic, dated 23 January 2014 (T11, page 110), stated that he had reviewed the Applicant’s MRI scan results after her rotator cuff repair in July 2013. He stated that the “subscapularis repair has failed by pullout of the anchors. The supraspinatus tendon remains tendinopathic, but there is no significant retearing” and that he had discussed treatment options with the Applicant. In a further letter to Dr Hodby (T13, page 121), Dr Booth reported that he had reviewed the Applicant “as a follow-up after infection of her shoulder following removal of suture anchors.” He stated that “[o]n examination her shoulder wounds are healthy and there is no sign of inflammation about the shoulder. [The Applicant] … still has had a fair degree of discomfort about the shoulder and I am hopeful this will settle down with time ” (T13, page 121).
A letter from Professor Lee, a neurosurgeon dated 15 October 2014 (T16, page 124), stated:
She had a total of three surgeries on her right shoulder. Initially, there were some screw related complications. Subsequently, she developed septic arthritis. From the sounds of things, she had also developed a number of significant medical complications as well from the infection and possibly medical therapy.
In a letter dated 3 February 2015 (T17, page 126), a hand, wrist, elbow and shoulder surgeon, Mr Alex O’Beirne also referred to the Applicant having “… not worked for the past three years due to complications post right shoulder surgery for a rotator cuff tear.” In this letter there is a reference to “left hand altered sensation in the little finger and ring finger” but nothing about the Applicant’s right hand.
Some information about functionality is contained in a letter from Dr Brian Galton-Fenzi, an Occupational and Environmental Physician dated 24 November 2015 (T23, page 135). Dr Galton-Fenzi stated as follows:
.. right shoulder is ‘sore’, which is continuously present and causes difficulty when using this arm (she is right-hand dominant), so she minimises her driving and limits her movements when she can. She states she injured this some 3 ½ years previously when working as a coordinator within an arts centre at a school. Following some cortisone injections, which proved to be short acting, she had an arthroscopic intervention which proved of no help with her ongoing symptoms. There were further operations with stapling for ‘torn tendons’ and the insertion of screws. Again this proved of no help with her symptoms. X-rays then found that at least two screws had fractured, these were removed and she developed septic arthritis of this joint. She required inpatient intravenous antibiotics for some months, at Royal Perth Hospital. (Original emphasis.)
In this letter, Dr Galton-Fenzi also observed that the Applicant “was ‘a bit tottery’, though was able to carry two heavy plastic bags filled with radiological films” (T23, page 136). He also states that the Applicant “describes osteoarthritis of her right middle finger” (T23, page 137).
A letter from Dr Hodby dated 24 July 2017 (T35, page 190) states that:
This is to certify that Ms Rosanne Currie suffers from long term back, neck and shoulder pain aggravated by exercise together with chronic depression.
Her back, neck and shoulder pain prevent work involving lifting or sitting for excessive periods.
She is currently episodically under the care of a Consultant Psychiatrist – Dr Magtengarard (sic).
She is optimally treated and fully stabilised.
She is permanently unfit to work in any capacity due to these disabilities.
The Tribunal notes that there is minimal evidence before it regarding the Applicant’s hand. Additionally, the lack of specificity regarding the functional impact of the Applicant’s right shoulder condition during the Qualification Period makes it difficult to assign an impairment rating without relying on the self-reported symptoms of the Applicant. At best, the medical evidence would only support an impairment rating of five points for the Applicant’s right shoulder and hand pain. Consequently, the Tribunal can only assign an impairment rating of five points for this condition.
Heart disease condition
Again, the Respondent accepts that the Applicant’s heart disease condition was fully diagnosed, treated and stabilised within the Qualification Period (Exhibit R2, para [44]). However, the Respondent submitted that the evidence is too limited to assign a higher rating than zero under Table 1 of the Impairment Tables (Exhibit R2, paras [45] – [46]). The Respondent further submitted that the Job Capacity Assessor appears to have relied on the Applicant’s self-reported impacts and in any event, the medical evidence does not sufficiently show the functional impact of the Applicant’s heart disease condition (Exhibit R2, para [47]).

The Tribunal has before it two letters from Dr McQuillan, cardiologist, both dated 8 April 2014 (T14, page 122 and T15, page 123). These letters concern the Applicant’s admission to hospital and her heart condition at that time. However, these letters pre-date the Qualification Period by approximately three years and do not contain any observations regarding the functional impact of the Applicant’s heart disease condition.
A letter from Dr McQuillan to Dr Hodby dated 27 October 2015 noted that the Applicant’s “shortness of breath has gradually been increasing. She now still experiences exertional dyspnoea on walking > 400 to 500 metres” (T28, page 150). However, this was approximately two years before the Qualification Period.
A further letter, approximately one year prior to the Qualification Period, dated

19 October 2016, to Dr Hodby from Dr McQuillan states that the Applicant has “a history of heart failure on a background of aortic regurgitation” (T27, page 149). The letter states that the Applicant “…has been noticing episodes of intermittent dizziness lately. This occurred mainly after bending forward but occasionally are postural when arising from sitting positions” and recommended medication to assist with this. The letter also noted that the Applicant had recently moved to a new house with stairs which the Applicant had to use several times each day. However, Dr McQuillan did not comment on any difficulties or functional impacts that the Applicant experiences as a result of using the stairs.
The JCA report dated 15 September 2017 (T36, page 195) contains minimal information about the functional impact of this condition, but notes some self-reported symptoms by the Applicant:
The claimant reports that she has a nebuliser at home which she states she uses weekly on average. She states that she continues to have shortness of breath on exertion. The claimant indicates that she does not experience chest pain…
As explained above, because there was very little medical evidence before the Tribunal relating to the Qualification Period, the Tribunal gave the Applicant the opportunity to obtain further medical evidence regarding her heart condition because she had an upcoming appointment with her cardiologist. As a consequence, the Tribunal has before it a letter from Dr McQuillan dated 2 October 2018 which stated the following:
I have been involved in Mrs Currie’s care since 2014. She has a history of non-ischaemic cardiomyopathy that became evident in the setting of sepsis and acute renal impairment.
From 2014 she had dilated left ventricle with low normal to mildly impaired systolic function. She had mild to moderate aortic regurgitation. The left atrium was moderately dilated. She had moderate mitral regurgitation. She was commenced on medical therapy to assist with her impaired left ventricular systolic function and reduce the risk of subsequent heart failure.
A repeat transthoracic echocardiogram performed in 2016 showed improvement in left ventricular size and systolic function. The degree of aortic regurgitation remained in the mild to moderate range, but her mitral regurgitation improved to be mild in severity.
Although it is clear that the Applicant suffered from a heart condition during the Qualification Period, with the exception of the self-reported symptoms of the Applicant, there is no evidence regarding the functional impact of this condition during the Qualification Period. Consequently, the Tribunal is unable to assess the Applicant’s condition against Table 1 of the Impairment Tables to allocate an impairment rating.
CONCLUSION
There is no doubt that the Applicant was suffering from the medical conditions discussed above during the Qualification Period. However, the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables during the Qualification Period, and therefore she did not satisfy the qualification criteria for a DSP under

s 94(1)(b) of the Act.
It is therefore unnecessary for the Tribunal to consider whether the Applicant had a continuing inability to work under s 94(1)(c) of the Act. It is commendable that the Applicant undertook volunteer work for approximately 15 hours per week.
The Tribunal understands that the Applicant will be disappointed by this decision and wishes to emphasise that the Tribunal found the Applicant to be truthful when she described her functional limitations. However, as was explained above, the Impairment Tables require the Tribunal to allocate impairment points based on functional impact and do not allow the Tribunal to allocate them solely based on the self-reported symptoms of the Applicant. This includes the self-reported symptoms described in the JCA. Instead, there must be corroborating evidence of the person’s functional impairment, for example, from the person’s treating doctor and other medical specialists which refers to the Applicant’s abilities to perform the activities in the relevant Impairment Tables. Fortunately for the Applicant, it is open to her to make a new claim for a DSP in the future whereby she can submit this supporting medical evidence.
DECISION
For the reasons set out above, the Applicant did not meet the eligibility requirements for a DSP during the Qualification Period. Consequently, the Reviewable Decision is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans

......[sgd]..................................................................
Associate
Dated: 14 December 2018

Date of hearing: 10 September 2018

Applicant: In person

Representative for the Respondent: Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 4617

14 December 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Appeal

Date of hearing:	10 September 2018
Applicant:	In person
Representative for the Respondent:	Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore Lawyers