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

[2016] AATA 657

Davies and Secretary, Department of Social Services (Social services second review) [2016] AATA 657 (31 August 2016)

Division	GENERAL DIVISION
File Number	2016/1487
Re	Neville Davies
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	31 August 2016
Place	Brisbane

The Tribunal refuses the application to dismiss the within proceedings pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (Cth).

The decision under review is affirmed.

............................[Sgd]............................................

Member D K Grigg

Catchwords

PRACTICE AND PROCEDURE – Application for dismissal on the basis of no reasonable prospect of success – Applicant unable to establish that his impairments attracted a rating of 20 points or more under the Impairment Tables for the purposes of disability support pension – No reasonable prospect of establishing an entitlement to disability support pension during the relevant period – Application to dismiss refused – Decision under review affirmed.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth), s 42B

Social Security Act 1991 (Cth), ss 26, 94

Social Security (Administration) Act 1999 (Cth), ss 41, 41, sch 2 pt 2 cls 3, 4

Cases

Agar v Hyde 201 CLR 552

Batistatos v Roads and Traffic Authority (NSW) (2006) 226 CLR 256

De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368

Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198

Heffery & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75

Kowalski and Repatriation Commission [2014] AATA 141

Paraponiaris and Secretary, Department of Employment [2015] AATA 895

Varawa v Howard Smith Co Ltd (1911) 13 CLR 35

Secondary Materials

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011, ss 3, 5, 6, 10, 11

REASONS FOR DECISION

Member D K Grigg

31 August 2016

INTRODUCTION

1. Mr Davies has to date lodged two applications for Disability Support Pension (“DSP”). The first application was lodged on 13 November 2014 (“1^st DSP Application”)[1] and the second on 23 September 2015 (“2^nd DSP Application”).[2]

   [1]Exhibit 1, T Documents, T8, pages 85-89, Extracts from Mr Davies’ 1^st DSP Application dated 13 November 2014.

   [2]Exhibit 1, T Documents, T19, pages 133-137, extracts of Mr Davies’s 2^nd DSP Application dated 23 September 2015.

2. Both the 1^st DSP Application and 2^nd DSP Application are concerned with the same medical conditions – osteoarthritis and prostate cancer. In the 2^nd DSP Application Mr Davies listed his medical conditions as “osteoarthritis in knees, back, shoulders, hands and feet; prostate cancer” (“Claimed Medical Conditions”).[3] To date Mr Davies’ applications for DSP claim have been rejected. Mr Davies seeks a further review of his 2^nd DSP Application by this Tribunal.

   [3]Exhibit 1, T Documents, T19, page 135, extracts of Mr Davies’s claim for DSP dated 23 September 2015.

   Claim History

3. After a Job Capacity Assessment (“JCA”) Mr Davies’ claim was rejected by a Department of Human Services (“Centrelink”) officer on 26 November 2015.[4] The JCA concluded that Mr Davies’ impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[5]

   [4]Exhibit 1, T Documents, T24, pages 154-155, Centrelink letter to Mr Davies dated 26 November 2015.

   [5]Exhibit 1, T Documents, T23, pages 147-153, Job Capacity Assessment report dated 24 November 2015.

4. Mr Davies then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Davies’ impairments did not attract 20 points or more under the Impairment Tables.[6]

   [6]Exhibit 1, T Documents, T28, pages 174-180, Authorised Review Officer’s letter and decision dated 19 January 2016.

5. On 20 January 2016, Mr Davies lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[7] The SSCSD rejected Mr Davies’ claim and affirmed the ARO’s decision on 1 March 2016.[8]

   [7]Exhibit 1, T Documents, T30, page 183, Centrelink letter to Mr Davies regarding application for review dated 12 February 2016.

   [8]Exhibit 1, T Documents, T2, pages 4-10, SSCSD’s Decision and Reasons for Decision dated 1 March 2016.

6. Mr Davies has sought a review of the SSCSD’s decision by this Tribunal.

7. The Respondent contends that Mr Davies’ application should be dismissed pursuant to s 42B of the Administrative Appeals Tribunal Act 1975 (the “AAT Act”), on the basis that it had no reasonable prospect of success or is otherwise an abuse of process.[9]

   [9]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016.

   ISSUES FOR DETERMINATION

8. The issues for determination are whether or not:

   (a)Mr Davies’ application should be dismissed pursuant to s 42B of the AAT Act; and, if not

   (b)Mr Davies qualifies for DSP.

9. The dismissal application was heard on the same day as the hearing.

   SHOULD THE APPLICATION BE DISMISSED: SECTION 42B?

10. Section 42B(1) of the AAT Act provides that the Tribunal may dismiss an application for the review of a decision, at any stage of the proceeding, if the Tribunal is satisfied that the application:

    (a)is frivolous, vexatious, misconceived or lacking in substance; or

    (b)has no reasonable prospect of success; or

    (c)is otherwise an abuse of the process of the Tribunal.

11. The principles applicable to the statutory test in s 42B were set out in Paraponiaris and Secretary, Department of Employment [2015] AATA 895 at [19] to [34] (emphasis added):

    22. …It is a prerequisite to the exercise of the Tribunal’s power to dismiss an application under s 42B(1)(b) that the Tribunal must be satisfied that the application “has no reasonable prospect of success” (see Spencer at [60]). That expression, particularly its concept of “success”, is to be read in the context of the provisions governing the Tribunal’s decision on review contained in s 43(1) of the AAT Act.

    23. … [The Tribunal] “must always be attended with caution” and “is not to be exercised lightly” (Spencer at [24], [60]; see also Re Williams and Australian Electoral Commission [1995] AATA 160; (1995) 38 ALD 366 at 372), as ordinarily a party ought not be denied the opportunity to put their case and have it heard in the usual way; the expression “no reasonable prospect” prescribes a standard describing “a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to [hearing] in the ordinary way” (Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46]).

    24. … [This decision] necessarily involves a consideration of the merits in the sense that it requires a finding that the application lacks any prospect of success which can properly be said to meet the standard of being a reasonable one (see Duncan v Fayle [2004] FCA 723; (2004) 138 FCR 510 at [22] per French J). The Tribunal’s discretion to dismiss an application for review under s 42B(1) of the AAT Act is enlivened in circumstances where the Tribunal forms the view that the application, upon a practical judgment as to the expected ultimate outcome of the proceeding, suffers from the requisite deficiency described in s 42B(1)(b), which will depend upon the nature of the issues raised by the application, particularly whether the case involves resolution of issues of fact, law or both (Spencer at [25]-[26]).

    25. Where the application for review requires resolution of a real issue or issues of fact (or law and fact, or mixed law and fact), the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” for the purposes of s 42(1)(b) – it is not enough that the Tribunal has formed the view that the applicant is unlikely to succeed in respect of such issues (Spencer at [25]-26]; Dandaven v Harbeth Holdings Pty Ltd [2008] FCA 955 at [6] per Gilmour J).

    26. Where the application for review requires resolution of a real issue or issues of law, the Tribunal cannot properly be satisfied that the application “has no reasonable prospect of success” – that will be so where there may be room for doubt about a proposition of law upon which the success of the application for review depends. On questions of law, “an inquiry as to their merit should not be for the purpose of resolving them ... but in order to decide if it is sufficiently strong to warrant a [hearing]” (Dandaven at [6]).

    27. The fact that the proposition of law is apparently precluded by existing authority may not always be the end of the matter, unless the success of the proceedings is critically dependent upon a proposition of law which would contradict a binding decision of the High Court (Spencer at [25]).

    28. However, where the success of an application for review depends upon propositions of law said to arise from relevant legislative provisions which are not sufficiently tenable as a matter of proper statutory interpretation, in my opinion it is open to the Tribunal to be satisfied that the application has no reasonable prospect of success for the purposes of s 42B(1)(b).

    29. In considering whether an application “has no reasonable prospect of success”, the Tribunal ought not confine itself to the case as put by the applicant. Section 42B(1) is to be read and applied in the context of the Tribunal’s role upon review. The Tribunal “is entitled to be guided by the issues that the parties choose to put before it for its consideration” (Grant v Repatriation Commission [1999] FCA 1629; (1999) 57 ALD 1 at [17] per Merkel, Goldberg and Weinberg JJ). However, as the Tribunal upon review “is under a duty to arrive at the correct or preferable decision in the case before it, according to the material before it”, and is thus “required to determine the substantive issues raised by the material and evidence advanced before it ... it is obliged not to limit its determination to the ‘case’ articulated by an applicant if the evidence and material that it accepts, or does not reject, raises a case on a basis not articulated by the applicant” (Benjamin v Repatriation Commission [2001] FCA 1879; (2001) 70 ALD 622 at [47] per Moore, Emmett and Allsop JJ, citing Grant at [17]-[18] with approval).

    30. That being so, in my opinion it necessarily follows that in considering whether an application for review has a sufficient prospect of success for the purposes of s 42B(1)(b), the Tribunal should similarly not confine itself to the issues raised and submissions made by the applicant. If the Tribunal finds on the basis of the case put by the applicant that the application has a prospect of success precluding the exercise of its power to dismiss under s 42B(1)(b), then that will be the end of the matter. However, if, conversely, the Tribunal considers that the applicant’s case as articulated fails to show sufficient merit, it should also consider, based on the material before it, whether the application nevertheless raises a real issue of fact or law (or both) which warrants a hearing.

    31. In considering whether it is satisfied that the application has no reasonable prospect of success for the purpose of s 42B(1)(b), the Tribunal should turn its mind to the ways in which it might disturb the decision under review in a manner favourable to the applicant upon exercising its powers under s 43 of the AAT Act, given that it is required to arrive at the correct or preferable decision.

    32. The Tribunal’s power to dismiss an application within the terms of s 42B(1)(b) of the AAT Act is governed by the wider statutory context, particularly the Tribunal’s obligation, in carrying out its functions, to pursue the objective of providing a mechanism of review that has the qualities enumerated in s 2A of the AAT Act. I note that those qualities were recently expanded in the substituted provision contained in the Tribunals Amalgamation Act 2015 (Cth).

    33. The Tribunal’s power to dismiss an application under s 42B(1)(b) reflects the fact that in such circumstances “it would be futile for the proceedings to continue, and inappropriate to use the time and resources of this tribunal, and to put the respondent to the expense that would be involved in the matter proceeding to a hearing” (see Re Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198 at [33]).

    34. I note that, conversely, applications to dismiss under s 42B should not be made except in appropriate cases, given the additional expense to the parties, waste of the Tribunal’s time and resources and impeding of the Tribunal’s pursuit of the objective in s 2A of the AAT Act which will otherwise occur (Re Filsell at [33]).

12. In order for Mr Davies to have no reasonable prospects of success there must be “a high degree of certainty”[10] that Mr Davies claim would fail if his application proceeded to a final hearing.

    [10]Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at [57], cited with approval in Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at [46].

13. To qualify for DSP, Mr Davies must meet certain legislative criteria.

14. The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).

15. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-

    (a)Mr Davies must have a physical, intellectual or psychiatric impairment;

    (b)Mr Davies’ impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[11]

    (c)Mr Davies must have a continuing inability to work.

    [11]A legislative instrument made under the Act: see s 26(1).

16. The date for determining whether Mr Davies meets the Section 94 Requirements is the date of the 2^nd DSP Application, in this instance as at 23 September 2015, the date the 2^nd DSP Application was lodged, unless Mr Davies becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[12] Therefore, in order to qualify for DSP Mr Davies must have met the Section 94 Requirements between 23 September 2015 and 23 December 2015 (“Qualification Period”).

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

17. The Respondent submitted that very little had changed with respect to Mr Davies’ medical conditions between Mr Davies 1^st DSP Application and the 2^nd DSP Application and that therefore the 2^nd DSP Application was frivolous, vexatious, misconceived or is otherwise an abuse of process.[13]

    [13]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, paras [72]-[74].

18. The 2^nd DSP Application was made one day after this Tribunal determined that Mr Davies did not qualify for DSP in relation to the 1^st DSP Application.

19. Even though the timing of the 2^nd DSP Application may indicate that Mr Davies will continue to reapply for DSP, the dates under which Mr Davies has to qualify for DSP are different. The 1^st DSP Application involved whether Mr Davies was qualified for DSP between 13 November 2014 and 12 February 2015. The 2^nd DSP Application for DSP involves a consideration of whether Mr Davies was qualified for DSP between 23 September 2015 and 23 December 2015. In that intervening period a further medical report from Dr Treichel had been obtained, in response to a Basic Rights Qld questionnaire letter to doctor.[14] This report was not available to the Tribunal hearing the 1^st DSP Application in September 2015.

    [14]Exhibit 1, T Documents, T25, pages 156-162, Basic Rights Qld - questionnaire letter to doctor dated 3 December 2015 and Exhibit 1, T Documents, T26, pages 163-164, Report of Dr Treichel dated 15 January 2016.

20. In Dr Treichel’s report of January 2016 he reported that:[15]

    [in relation to Mr Davies’ severe osteoarthritis of both knees and severe osteoarthritis of the lumbar spine] all reasonable treatments had been undertaken and [Mr Davies] has achieved all the functional improvement that is likely...even [total knee replacements] would not restore his previous work capacity.

    [15]Exhibit 1, T Documents, T26, pages 163-164, Report of Dr Treichel dated 15 January 2016.

21. The Respondent did not refer to this report in its written submissions and did not address it in any substantial way before me. This was new evidence which in my view should be the subject of a hearing and not considered on an interlocutory basis.

22. The Respondent further submitted that because Mr Davies had expressed an intention to keep appealing until he receives a DSP[16] that this meant the application should be dismissed as an abuse of process.[17]

    [16]Exhibit 1, T Documents, T28, page 179, Authorised Review Office decision notes of a telephone conversation with Mr Davies on 15 January 2016.

    [17]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, para [74].

23. What constitutes an “abuse of process” has been considered in numerous decisions and were referred to by Deputy President Forgie in Kowalski and Repatriation Commission [2014] AATA 141 at [51]-[53]:

    ·Isaacs J in Varawa v Howard Smith Co Ltd:[18]

    [18](1911) 13 CLR 35, at 91.

    ... [T]he term ‘abuse of process’ connotes that the process is employed for some purpose other than the attainment of the claim in the action. If the proceedings are merely a stalking-horse to coerce the defendant in some way entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate they are regarded as an abuse of process for this purpose. ...

    ·In Heffery & Katauskas v SST Consulting Pty Ltd[19] where the majority set out four categories of conduct that had previously attracted the intervention of the courts. They were:

    (a)proceedings which involve a deception on the court, or are fictitious or constitute a mere sham;

    (b)proceedings where the process of the court is not being fairly or honestly used but is employed for some ulterior or improper purpose or in an improper way;

    (c)proceedings which are manifestly groundless or without foundation or which serve no useful purpose;

    (d)multiple or successive proceedings which cause or are likely to cause improper vexation or oppression.

    ·The majority went on to say:[20]

    The term ‘abuse of process’, as used in Australia today, is not limited by the categories mentioned above or those which constitute the tort. It has been said repeatedly in the judgments of this Court that the categories of abuse of process are not closed.... In Walton v Gardiner ... the majority adopted the observation in Hunter v Chief Constable of the West Midlands Police ... that courts have an inherent power to prevent misuse of their procedures in a way which, although not inconsistent with the literal application of procedural rules of court, would nevertheless be ‘manifestly unfair to a party to litigation ... or would otherwise bring the administration of justice into disrepute among right-thinking people’. This does not mean that abuse of process is a term at large or without meaning.... Nor does it mean that any conduct of a party or non-party in relation to judicial proceedings is an abuse of process if it can be characterised as in some sense unfair to a party. It is clear, however, that abuse of process extends to proceedings that are ‘seriously and unfairly burdensome, prejudicial or damaging’ or ‘productive of serious and unjustified trouble and harassment’ ....

    [19](2009) 239 CLR 75; 260 ALR 34 at [27] per French CJ, Gummow, Hayne and Crennan JJ.

    [20] (2009) 239 CLR 75; 260 ALR 34 at [28]; 93-94; 41-42 (citations omitted).

1. I do not consider that this application is an abuse of process as outlined by the above decisions. Mr Davies has only made two applications for DSP, which is hardly excessive. Further, the Respondent itself contended that once Mr Davies had undertaken specialist review and his conditions have stabilised that it was open to him a lodge a fresh claim.[21]

   [21]Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, para 75.

2. There is nothing to indicate the application had been instituted vexatiously. It is not a “seriously and unfairly burdensome, prejudicial or damaging” proceeding or “productive of serious and unjustified trouble and harassment”.[22]

   [22]Heffery & Katauskas v SST Consulting Pty Ltd (2009) 239 CLR 75; 260 ALR 34 at [28]; 93-94; 41-42 (citations omitted).

3. Further, given that, by consent of the parties, the application to dismiss was set down to be heard on the same day as the hearing, there has not been an inappropriate use of the time and resources of the Tribunal (other than perhaps having to separately consider the application to dismiss which the Respondent elected to continue with on the day of the hearing).

4. Deputy President D G Jarvis in Filsell and Comcare [2009] AATA 90; (2009) 109 ALD 198, at [33], set out the approach to be followed in relation to section 42B dismissal applications and concluded that:

   The power of dismissal under s 42B should be used cautiously… an applicant should not be denied the right to have the tribunal review the decision in issue on the merits, by conducting a hearing de novo and considering the evidence that the applicant can properly adduce at that hearing: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129–130

5. Given the above I refuse the application to dismiss the proceedings pursuant to s 42B of the AAT Act.

6. I will now proceed to consider the merits of the hearing itself.

   DID MR DAVIES HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(a)?

   What is an Impairment?

7. The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[23]

   [23]Determination, s 3.

   Mr Davies’ Impairments

8. The Respondent accepts that Mr Davies had several impairments for the purposes of section 94(1)(a) during the Qualification Period.[24]

   [24]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, paragraph [43].

9. It is clear from the medical evidence contained within the T Documents that during the Qualification Period Mr Davies suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:

   ·Osteoarthritis  - lumbar spine,[25] knees,[26] feet[27], hands[28]

   ·Prostate cancer[29]

   DO MR DAVIES’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(b)?

   [25]See Exhibit 1, T Documents, T20, page 140, Radiology Report of Dr Southee dated 9 July 2015.

   [26]See Exhibit 1, T Documents, T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014; T20, page 138, Radiology Report of Dr Taylor dated 22 October 2014; T20, page 140, Radiology Report of Dr Southee dated 9 July 2015.

   [27]See Exhibit 1, T Documents, T20, page 138, Radiology Report of Dr Taylor dated 22 October 2014; T20, page 140, Radiology Report of Dr Southee dated 9 July 2015.

   [28]See Exhibit 1, T Documents, T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014; T17, pages 119-120, Report by Dr Treichel dated 18 August 2015.

   [29]See Exhibit 1, T Documents, T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014.

   How are Impairment Ratings Assessed?

10. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[30] They are function based,[31] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[32]

    [30]Determination, ss 4(2) and 5(2)(a).

    [31]Determination, s 5(2)(c).

    [32]Determination, s 5(2)(d).

11. I can only assign an Impairment Rating to an impairment if:[33]

    (a)Mr Davies’ 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.

    [33]Determination, see s 6(3).

12. The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[34]

    [34]De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368, at [12].

13. Mr Davies’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[35]

    (a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;

    (b)the condition has been fully treated;

    (c)the condition has been fully stabilized; and

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    [35]Determination, see s 6(4).

14. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[36] the following is to be considered:[37]

    (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.

    [36] For the purposes of ss 6(4)(a) and (b) of the Determination.

    [37] Determination, see s 6(5).

15. A condition is fully stabilised[38] if:[39]

    (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;[40] or

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

    [38] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

    [39] Determination, see s 6(6).

    [40]        For reasonable treatment see s 6(7) of the Determination.

16. Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

17. However, before applying the Tables I must first consider Mr Davies’ medical history, in relation to the condition causing the impairment.[41]

    [41]Determination, see s 6(2).

18. I will now consider each of Mr Davies’ Impairments.

    Prostate Cancer

    Is Mr Davies’ prostate cancer permanent and likely to persist for at least 2 years?

19. Mr Davies was diagnosed with prostate cancer in 2010.[42]

    [42]Exhibit 1, T Documents, T6, page 73, Medical Certificate of Dr Tun dated 28 October 2014.

20. In the medical report lodged with the claim Dr Tun reports that :

    (a)Mr Davies needed specialist review;[43] and

    (b)this condition would persist for more than 24 months and the effect of this condition on Mr Davies’ ability to function was uncertain.[44]

    [43]Exhibit 1, T Documents, T7, page 81, Medical Report Form of Dr Tun dated 6 November 2014.

    [44]Exhibit 1, T Documents, T7, page 82, Medical Report Form of Dr Tun dated 6 November 2014.

21. Dr Tun reported on 28 October 2014 and 6 November 2014 that Mr Davies needed ongoing and specialist review of his prostate cancer.[45]

    [45]Exhibit 1, T Documents, T6, page 73, Medical Certificate of Dr Tun dated 28 October 2014 and T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014.

22. Dr Treichel reported on 18 August 2015 that Mr Davies will soon require “extensive intervention probably as radiotherapy”.[46]

    [46]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

23. The JCA undertaken on 24 November 2015 reported that Mr Davies was self-managing with homeopathic interventions. Mr Davies had not undertaken specialist review, surgery or radiation therapy.[47] This is consistent with the evidence given by Mr Davies before the SSCSD.[48] As a result, both the SSCSD and the JCA concluded that this condition was not therefore fully treated or fully stabilised.[49]

    [47]Exhibit 1, T Documents, T23, pages 147-153, Job Capacity Assessment report dated 24 November 2015.

    [48]Exhibit 1, T Documents, T2, pages 4-10, SSCSD’s Decision and Reasons for Decision dated 1 March 2016.

    [49]Exhibit 1, T Documents, T23, pages 147-153, Job Capacity Assessment report dated 24 November 2015; Exhibit 1, T Documents, T2, pages 4-10, SSCSD’s Decision and Reasons for Decision dated 1 March 2016.

24. The Respondent submits that Mr Davies’ prostate cancer was not fully treated and fully stabilised in the Qualification Period.[50]

    [50]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, paras [50]-[51].

25. To date, Mr Davies has not undertaken the specialist review or radiation therapy recommended by his treating medical practitioners. While Mr Davies reported to the JCA that, in his opinion, his homeopathic remedies were working and his PSA levels had dropped,[51] there is no corroborating medical evidence of that improvement.

    [51]Exhibit 1, T Documents, T23, pages 147-153, Job Capacity Assessment report dated 24 November 2015.

26. It is unclear what effect the recommended medical treatment would have on functional improvement of this condition and therefore I find that during the Qualifying Period Mr Davies’ prostate cancer was fully diagnosed but not fully treated and not fully stabilised and therefore is not permanent (as defined in section 6(4) of the Determination) and no Impairment Rating can be assigned.

27. Further, it is unlikely to have attracted an Impairment Rating in any event as Dr Tun reported that this condition was “asymptomatic”.[52]

    Osteoarthritis – Spine

    [52]Exhibit 1, T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014.

    Is Mr Davies’ osteoarthritis of the spine permanent and likely to persist for at least 2 years?

28. Dr Treichel reported on 18 August 2015 that Mr Davies:[53]

    …suffers daily pain and has limited flexion and limited ability to mobilize. He becomes uncomfortable staying in any position for more than a few minutes…He is unable to bend easily, and is unable to lift more than very low weights.

    there is no specific treatment for this condition beyond:

    (i)     avoidance of aggravating activities  

    (ii)    use of non-steroidal anti-inflammatory medication and pain killers

    (iii)    Physiotherapy [which he says] will have only limited short term usefulness

    [53]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

29. Dr Treichel also noted that he had “no record of [Mr Davies] seeing any Physiotherapist”.[54]

    [54]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

30. In January 2016 Dr Treichel reported that:[55]

    ...all reasonable treatments had been undertaken and [Mr Davies] has achieved all the functional improvement that is likely

    [55]Exhibit 1, T Documents, T26, pages 163-164, Report of Dr Treichel dated 15 January 2016.

31. The JCA undertaken on 24 November 2015 reported that it is unlikely that the condition would improve with surgical intervention unless the condition significantly deteriorated. As a result the JCA concluded that this condition was fully diagnosed, fully treated and fully stabilised.[56]

    [56]Exhibit 1, T Documents, T23, pages 147-153, Job Capacity Assessment report dated 24 November 2015.

32. The Respondent concedes that this condition was fully diagnosed, fully treated and fully stabilised but submits that the Impairment can only be assigned an Impairment Rating of 5 points.[57]

    [57]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, paras [45].

33. I find that Mr Davies’ osteoarthritis of the spine was fully diagnosed, fully treated and fully stabilised. I now have to assign an Impairment Rating under the Impairment Tables.

    Using the Impairment Tables

34. I have to assess the level of impact of Mr Davies’ spinal impairment against the descriptors[58] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[59]

    [58]Determination, see ss 3 and 5(3).

    [59] Determination, see ss 3 and 5(3).

35. Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.

36. 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.[60]

    [60] Determination, see s 6(1).

37. I am obliged by the Determination to take the following information into account in applying the Tables:[61]

    (a)the information provided by the health professionals specified in the relevant Table; and

    (b)any additional medical or work capacity information that may be available; and

    (c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

    [61] Determination, see s 7.

38. I must not take into account the following information in applying the Tables:[62]

    (a)symptoms reported by Mr Davies in relation to his condition where there is no corroborating evidence;

    (b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Davies’ local community.

    [62] Determination, see s 8.

39. Which Tables are appropriate are determined by:[63]

    (a)identifying the loss of function; then

    (b)referring to the Table related to the function affected; then

    (c)identifying the correct impairment rating.

    [63] Determination, see s 10(1).

40. Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[64]

    [64]Determination, see s 10(3).

41. 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.[65]

    [65]Determination, see s 11(1).

42. The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[66]

    [66]Determination, see s 11(3).

43. Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[67]

    [67]Determination, see s 11(5).

    Evidence identifying the loss of function

44. In relation to the spinal condition Dr Treichel reports that Mr Davies:[68]

    (a)“has limited flexion and limited ability to mobilize”;

    (b)“is unable to bend easily, and is unable to lift more than very low weights”;

    (c)suffers “daily pain in both lower and upper back”; and

    (d)“becomes uncomfortable staying in any position for more than a few” minutes.

    [68]Exhibit 1, T Documents, T17, pages 119-120, Letter from Dr Treichel dated 18 August 2015.

45. The JCA reported on the functional impact of Mr Davies’ condition:-[69]

    [Mr Davies was] observed to be able to sit for over 30 min during assessment…before having to change position

    [Mr Davies has]…difficulty…bending to knee level and straightening up

    [Mr Davies was] observed to be able…to bend to reach items placed on chair next to him in waiting room and to be able to stand without assistance

    [Mr Davies] was observed to have good neck rotation left and right

    [69]Exhibit 1, T Documents, T23, at pages 150-151, Job Capacity Assessment report dated 24 November 2015.

46. In relation to the impact of his ability to function at the hearing before me Mr Davies gave evidence that he:

    (a)can drive a car for approximately 30 minutes before needing a rest;

    (b)uses a walking stick;

    (c)requires the use of the arms of chair to get out a chair;

    (d)can bend down and pick things up from table height but not coffee table height; and

    (e)cannot bend down to ground level.

47. The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.

    Relevant impairment table and impairment rating

48. In light of the evidence I consider that Table 4 of the Determination which deals with Spinal Function is the relevant Table.

49. The introduction to Table 4 provides that:

    ·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.

    ·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

    ·Self-report of symptoms alone is insufficient.

    ·There must be corroborating evidence of the person’s impairment.

    ·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

    oa report from the person’s treating doctor;

    oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

    oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

    In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

50. The JCA gave an Impairment Rating of 5 points for this condition.[70]

    [70]Exhibit 1, T Documents, T23, at pages 150-151, Job Capacity Assessment report dated 24 November 2015.

51. The Respondent submitted that the Impairment can only be assigned an Impairment Rating of 5 points.[71]

    [71]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, para [45].

52. In order to assign an Impairment Rating of 20 points the evidence would need to show that Mr Davies is unable to:

    (a)perform any overhead activities; or

    (b)turn his head, or bend his neck, without moving his trunk; or

    (c)bend forward to pick up a light object from a desk or table; or

    (d)remain seated for at least 10 minutes.

53. In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Davies:

    (a)is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (i)he is unable to sustain overhead activities (e.g. accessing items over head height); or

    (ii)he has difficulty moving his head to look in all directions (e.g. turning his head to look over their shoulder); or

    (iii)he is unable to bend forward to pick up a light object placed at knee height; or

    (iv)he needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

1. In order to assign an Impairment Rating of 5 points the evidence would need to show that Mr Davies has some difficulty in:

   (a)activities over head height (e.g. activities requiring the person to look upwards); or

   (b)bending to knee level and straightening up again without difficulty; or

   (c)turning their trunk or moving their head (e.g. to look to the sides or upwards).

2. There was no evidence presented that Mr Davies is unable to:

   (a)perform any overhead activities;

   (b)bend forward to pick up a light object from a desk or table;

   (c)remain seated for at least 10 minutes,  or

   (d)get out of a chair without assistance.

3. I find, therefore, that Mr Davies’ spinal impairment was having a “mild” functional impact on activities in the Qualification Period. Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 5 points.

   Osteoarthritis – Knees

   Is Mr Davies’ osteoarthritis of the knees permanent and likely to persist for at least two years?

4. Mr Davies’ osteoarthritis of the knees is reported as commencing in 2014.[72]

   [72]Exhibit 1, T Documents, T7, at page 77, Medical Report of Dr Tun dated 6 November 2014.

5. A radionuclide bone scan performed on 9 July 2015 showed “arthritic changes...present in the...medial compartments of both knees.”[73]

   [73]Exhibit 1, T Documents, T20, page 140, Bone Scan Report of Dr Southee dated 9 July 2015.

6. A radiology report indicates that there is “marked joint space narrowing particularly in the medial compartment with extensive subarticular sclerosis and prominent osteophyte formation particularly in the patellofemoral compartment.”[74]

   [74]Exhibit 1, T Documents, T20, page 138, Radiology Report of Dr Taylor dated 22 October 2014.

7. Dr Tun reported on 28 October 2014 and 6 November 2014 that Mr Davies may need physiotherapy and ongoing review for possible surgery.[75]

   [75]Exhibit 1, T Documents, T6, page 73, Medical Certificate of Dr Tun dated 28 October 2014 and T7, pages 74-89, Medical report form completed by Dr Tun dated 6 November 2014.

8. In the medical report lodged with the claim Dr Tun reports that :

   (a)the condition was being treated with Panadol osteo and that Mr Davies needed specialist review;[76] and

   (b)this condition would persist for more than 24 months and the effect of this condition on Mr Davies’ ability to function was uncertain.[77]

   [76]Exhibit 1, T Documents, T7, page 77-78, Medical Report Form of Dr Tun dated 6 November 2014.

   [77]Exhibit 1, T Documents, T7, page 79, Medical Report Form of Dr Tun dated 6 November 2014.

9. Dr Treichel reported on 18 August 2015 that there is no specific treatment for this condition beyond:[78]

   (i)     avoidance of aggravating activities

   (ii)    use of non-steroidal anti-inflammatory medication and pain killers

   (iii)    Physiotherapy [which he says] will have only limited short term usefulness

   [78]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

10. Dr Treichel also noted that he had “no record of [Mr Davies] seeing any Physiotherapist”.[79]

    [79]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

11. In January 2016 Dr Treichel reported that:[80]

    ...all reasonable treatments have been undertaken and [Mr Davies] has achieved all the functional improvement that is likely

    Total knee replacem,ents [sic] on both sides would give him more significant pain alleviation

    [80]Exhibit 1, T Documents, T26, pages 163-164, Report of Dr Treichel dated 15 January 2016.

12. The JCA undertaken on 24 November 2015 noted that Mr Davies reported:[81]

    (a)he was on a waiting list to see an orthopaedic specialist;

    (b)was not using the anti-inflammatory drug he had been prescribed;

    (c)he went to physiotherapy 9 months ago but they told him there was nothing they could do.

    [81]Exhibit 1, T Documents, T23, at pages 148-149, Job Capacity Assessment report dated 24 November 2015.

13. The JCA concluded that Mr Davies’ osteoarthritis of the knees was not fully treated or stabilised.[82]

    [82]Exhibit 1, T Documents, T23, at pages 148-149, Job Capacity Assessment report dated 24 November 2015.

14. The Respondent submits that Mr Davies’ osteoarthritis of the knees was not fully treated and not fully stabilised in the Qualification Period.[83]

    [83]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, para [49].

15. The medical evidence supports the Respondent’s submission and the JCA’s conclusion.

16. I find that during the Qualifying Period Mr Davies’ osteoarthritis of the knees was fully diagnosed but not fully treated or fully stabilised and therefore cannot be regarded as permanent and no Impairment Rating can be assigned.

    Osteoarthritis – Hands

    Is Mr Davies’ osteoarthritis of the hands permanent and likely to persist for at least 2 years?

17. A radionuclide bone scan performed on 9 July 2015 showed “[a]rthritic changes...present in the...base of the thumbs, the wrists, [and] the right hand.”[84]

    [84]Exhibit 1, T Documents, T20, page 140, Bone Scan Report of Dr Southee dated 9 July 2015.

18. Dr Treichel reported on 18 August 2015 that there is no specific treatment for this condition beyond:[85]

    (i)     avoidance of aggravating activities

    (ii)    use of non-steroidal anti-inflammatory medication and pain killers

    (iii)    Physiotherapy [which he says] will have only limited short term usefulness

    [85]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

19. Dr Treichel also noted that he had “no record of [Mr Davies] seeing any Physiotherapist”.[86]

    [86]Exhibit 1, T Documents, T17, pages 119-120, Report of Dr Treichel dated 18 August 2015.

20. The JCA undertaken on 24 November 2015 noted that Mr Davies reported:[87]

    (a)he was on a waiting list to see an orthopaedic specialist;

    (b)was using an anti-inflammatory cream, but not the anti-inflammatory drugs he had been prescribed; and

    (c)he went to physiotherapy 9 months ago but they told him there was nothing they could do.

    [87]Exhibit 1, T Documents, T23, at page 132, Job Capacity Assessment report dated 24 November 2015.

21. The JCA concluded that Mr Davies’ osteoarthritis of the hands was not fully treated or stabilised.[88]

    [88]Exhibit 1, T Documents, T23, at page 132, Job Capacity Assessment report dated 24 November 2015.

22. The Respondent submits that Mr Davies’ osteoarthritis of the hands was not fully treated and not fully stabilised in the Qualification Period.[89]

    [89]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 June 2016, para [47].

23. The medical evidence supports the Respondent’s submission and the JCA’s conclusion.

24. I find that during the Qualifying Period Mr Davies’ osteoarthritis of the hands was fully diagnosed but not fully treated or fully stabilised and therefore is not permanent and no Impairment Rating can be assigned.

    Osteoarthritis – Feet

    Is Mr Davies’ osteoarthritis of the feet permanent and likely to persist for at least 2 years?

25. Mr Davies osteoarthritis of the feet was first reported in 2014.[90]

    [90]Exhibit 1, T Documents, T7, page 83, Medical Report Form of Dr Tun dated 6 November 2014.

26. A radionuclide bone scan performed on 9 July 2015 showed “arthritic changes...present in the...left ankle.”[91]

    [91]Exhibit 1, T Documents, T20, page 140, Bone Scan Report of Dr Southee dated 9 July 2015.

27. A radiology report indicates that there is “moderate degenerative change at the metatarsolphalangeal joint of the hallux and at the tarsometatarsal joints” of the left foot.[92]

    [92]Exhibit 1, T Documents, T20, page 138, Radiology Report of Dr Taylor dated 22 October 2014.

28. In the medical report lodged with the claim Dr Tun reports that Mr Davies has left foot moderate osteoarthritis that is generally well managed and causes minimal or limited impact.[93]

    [93]Exhibit 1, T Documents, T7, page 83, Medical Report Form of Dr Tun dated 6 November 2014.

    Mental Health Condition

29. In February 2015 Dr Tun reported that Mr Davies had been suffering from acute anxiety and symptoms of depression for three weeks.[94]

    [94]        Exhibit 1, T Documents, T11, page 100, Letter from Dr Tun dated 16 February 2015.

30. No other medical evidence of these conditions or how they are being treated has been provided. In particular there is no evidence that these conditions have been diagnosed by a psychiatrist or clinical psychologist.

31. Mr Davies says he cannot afford to see a psychologist.

32. Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.

33. Accordingly I find that these conditions have not been not fully diagnosed and therefore no impairment rating can be assigned.

    ARE MR DAVIES’ IMPAIRMENTS OF 20 POINTS OR MORE UNDRE THE IMPAIRMENT TABLES: s 94(1)(b)?

34. I have found that the Impairment Rating for Mr Davies’ spinal impairment was 5 points.

35. To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).

    DID MR DAVIES HAVE A CONTINUING INABILITY TO WORK?

36. I have concluded that Mr Davies’ impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Mr Davies had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.

    CONCLUSION

37. The decision under review is affirmed.

I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[Sgd]............................................

Associate

Dated 31 August 2016

Date of hearing	28 July 2016
Applicant	In person
Solicitors for the Respondent	Department of Human Services