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

De Bellis and Secretary, Department of Social Services (Social services second review) [2017] AATA 365 (24 March 2017)
Division:GENERAL DIVISION
File Number: 2016/4023
Re:Nick De Bellis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:24 March 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...............................[Sgd]........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed
LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES

Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368.
REASONS FOR DECISION
Member D K Grigg
24 March 2017
INTRODUCTION

On 16 October 2015 Mr De Bellis lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “heart condition – both hands[s] have osteoarthritis – and neck, back – difficulty walking, blind in left eye” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T18, pages 94-123, Mr De Bellis’ Claim for DSP dated 16 October 2015.
To date Mr De Bellis’ claim for DSP has been rejected. Mr De Bellis seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr De Bellis’ claim was rejected by a Centrelink officer on 1 March 2016.[2] The JCA concluded that Mr De Bellis’ impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]
[2] Exhibit 1, T Documents, T27, pages 144-145, Centrelink Decision dated 1 March 2016.
[3] Exhibit 1, T Documents, T26, pages 136-143, Job Capacity Assessment report dated 26 February 2016.
Mr De Bellis 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 De Bellis’ impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T28, pages 146-152, ARO Decision dated 14 April 2016.
On 3 May 2016 Mr De Bellis lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] The SSCSD rejected Mr De Bellis’ claim and affirmed the ARO’s decision on 15 July 2016.[6]
[5] Exhibit 1, T Documents, T30, page 155, Centrelink letter to Mr De Bellis confirming application for
review dated 24 May 2016.
[6] Exhibit 1, T Documents, T3, pages 8-14, SSCSD’s Decision and Reasons for Decision dated 15 July
2016.
Mr De Bellis has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T2, pages 3-7, Application for Review of Decision dated 2 August 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr De Bellis must have a physical, intellectual or psychiatric impairment/s.
(b)Mr De Bellis’ impairment/s 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”).[8]
(c)Mr De Bellis must have a continuing inability to work.
[my emphasis]
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr De Bellis meets the Section 94 Requirements is the date of the claim (in this instance as at 19 October 2015), unless Mr De Bellis becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP Mr De Bellis must have met the Section 94 Requirements between 19 October 2015 and 18 January 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr De Bellis’ impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[10]
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
DOES MR DE BELLIS HAVE A CONTINUING INABILITY TO WORK: 94(1)(C)
Usually I would commence with a consideration of Mr De Bellis’ impairments, however, I will firstly consider whether Mr De Bellis has a continuing inability to work. The reason for this is because the Respondent submits, and Mr De Bellis accepts, that Mr De Bellis does not meet the requirements for a program of support.[11]
[11] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 October 2016, para 63; Exhibit 1, T
Documents, T32, page 158, Program of Support Summary.
Section 94(2) of the Act sets out when a person has a continuing inability to work because of an impairment. It provides:
(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.
Note: For work see subsection (5).
The requirements for a program of support, as referred to in s 94(3C) of the Act are set out in the Social Security (Active Participation for Disability Support Pension) Determination 2014 (“POS Determination”). Section 7 of the POS Determination sets out the requirements for active participation and provides, relevantly in section 7(2), that a person will have actively participated in a program of support if they have participated in it for at least 18 months during the relevant period. Any periods of time during which a person has not participated in a program of support is not taken into account (section 8, POS Determination).
The relevant period in this case is the 36 months prior to the date of the DSP Claim. That is, Mr De Bellis must have actively participated in a program of support for at least 18 months between 19 October 2012 and 19 October 2015.
Mr De Bellis has not satisfied the requirements for a program of support, therefore, unless one of Mr De Bellis’ impairments attracts a 20 point Impairment Rating under one single Impairment Table (i.e. it is a “severe impairment” as defined in s 94(3B)), Mr De Bellis will not qualify for DSP.
DID MR DE BELLIS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
What is an Impairment
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”.[12]
[12] Determination, s 3.
Mr De Bellis’ Medical Conditions
In 2005 Mr De Bellis underwent a coronary angioplasty.[13]
[13] Exhibit 1, T Documents, T5, page 58, Record of Coronary Angioplasty dated 26 September 2005.
In 2014 and 2015 x-rays of Mr De Bellis’ wrists were performed and found osteoarthritic changes in both wrists.[14]
[14]Exhibit 1, T Documents, T7, page 61, X-Ray report dated 7 April 2014; T19, page 124, x-ray report dated 19 October 2015; T25, Page 134, X-ray report dated 9 December 2015.
Dr Ghotra, Mr De Bellis’ General Practitioner, described Mr De Bellis’ medical conditions in his July 2014 report as:[15]
(a)“IHD (ischaemic heart disease) (stent – coronary artery – 2006)”. Dr Ghotra reports that, as a result, Mr De Bellis experiences “chest pains on exertion (run 15 metres/sudden excitement), episodic palpitations”;
(b)“osteoarthritis – left hand > right hand”. Dr Ghotra reports that, as a result, Mr De Bellis experiences “gradually worsening pain at the base of thumb (L>R) and also bilateral wrist area”;
(c)“90% loss of vision in left eye due to puncture wound in …1989” which he noted was well managed and caused minimal or limited impact on Mr De Bellis’ ability to function; and
(d)“tinnitus” which he noted was well managed and caused minimal or limited impact on Mr De Bellis’ ability to function.
[15] Exhibit 1, T Documents, T9, pages 66-76, Medical Report completed by Dr Ghotra dated 8 July 2014.
In April 2015 Dr Kalanie, Orthopaedic Surgeon, performed a trapeziectomy and ligament reconstruction on Mr De Bellis’ left hand.[16]
[16] Exhibit 1, T Documents, T12, page 83, Report of Dr Kalanie dated 24 April 2015.
CT scans of Mr De Bellis’ cervical spine was performed in 2015 and found “multi-level disco-vertebral and facet joint degenerative [at C3/4 level, C5/6 level and C6/7 level]…multilevel neural exit foraminal narrowing”.[17] MRIs of Mr De Bellis’ spine was performed on 5 August 2015 and found minor posterior disc bulging and uncontrovertebral osteophytes narrow the neaural foramina bilaterally at C3-4, central posterior disc protrusion at C4-5, diffuse posterior disc protrusion and disc osteophyte complexes narrowing the neural forament C5-6 and C6-7.[18]
[17] Exhibit 1, T Documents, T14, pages 86-87, CT Scan report dated 22 July 2015; T20, pages 125-126, CT scan
report dated 19 October 2015.
[18] Exhibit 1, T Documents, T15, pages 88, MRI report dated 5 August 2015; T21, pages 127-128, MRI report dated
19 October 2015.
In October 2015 Dr Ghotra provided a Verification of Medical Conditions Report and reported that the main conditions which significantly impact on Mr De Bellis’ capacity to work were:[19]
“Chronic neck pain (C5/6, C6/7 disc bulge with foramina narrowing”
“chronic hand pain (bilateral) – degenerative”
“loss of vision 90% on left side”
“history of CAD with coronary artery stent in 2001”
[19] Exhibit 1, T Documents, T16, pages 89-91, Verification of Medical Conditions by Dr Ghotra dated 8 October 2015.
See also T17, pages 92-93, Health Summary Sheet dated 15 October 2015.
In a Health Summary Sheet provided by Dr Ghotra dated 15 October 2015, Dr Ghotra reports that Mr De Bellis has the following active health conditions:[20]
Dyslipidaemia
Ischaemic Heart Disease Loss of vision – 90% (left)
Stent – coronary artery
Osteoarthritis – left first carpo-metacarpal joint
Bilateral severe CMC joint OA
MRI – C5/6 & C6/7 disc bulge with narrow, of neural foramina
Plantar fasciitis (right)
[20] Exhibit 1, T Documents, T17, pages 92-93, Health Summary Sheet dated 15 October 2015.
In December 2015 Ms Sophia Gerritsma, Optometrist, reported that Mr De Bellis has significant deterioration in visual acuity in his left eye with significant corneal scarring and a distorted pupil.[21]
[21] Exhibit 1, T Documents, T24, page 133, Report of Ms Gerritsma dated 5 December 2015.
In his DSP Application Mr De Bellis says his Claimed Medical Conditions affect his functional ability as follows:[22]
1) Dizzy spells when turning [his] head due to cervical radiculopathy also weakness
2) short of breath
3) painful (sic) in neck and upper back after driving for more than 15 minutes
4) can only sit (sic) at [his] desk for a few minutes when using [his] computer
5) pain in hands making [it] hard to write, open and close taps, open jars, etc
6) left hand wrist (sic) now seizes and locks up after surgery
7) numbness in right arm and fingers and altered reflexes
[22] Exhibit 1, T Documents, T18, at page 123, Mr De Bellis’ Claim for DSP dated 16 October 2015.
The JCA was conducted face-to-face with Mr De Bellis on 9 December 2015 by a Registered Psychologist and Registered Occupational Therapist. The JCA assessors’ report confirmed that Mr De Bellis suffered from the following medical conditions:[23]
·Ischaemic Heart Disease (which was found to be not fully diagnosed, not fully treated and not fully stabilised);
·Osteoarthritis (which was found to be fully diagnosed, fully treated and fully stabilised);
·Eye anomaly – vision loss (which was found to be not fully diagnosed)
·Tinnitus (which was found to be fully diagnosed, fully treated and fully stabilised)
·Dyslipidaemia (which was found to be fully diagnosed, but not fully treated and not fully stabilised);
·Plantar fascitis which was found to be fully diagnosed, but not fully treated and not fully stabilised)
·Chronic pain (which was found to be fully diagnosed, but not fully treated and not fully stabilised)
[23] Exhibit 1, T Documents, T26, pages 136-143, Job Capacity Assessment report dated 26 February 2016.
The Secretary accepts that Mr De Bellis had Impairments which satisfied section 94(1)(a) during the Qualification Period.[24] I am satisfied on the medical evidence that that is correct.
[24] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, at para 24.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Mr De Bellis suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
(a)Ischaemic Heart Disease;
(b)Osteoarthritis;
(c)Eye anomaly – vision loss;
(d)Dyslipidaemia; and
(e)Plantar fasciitis.
Whilst acknowledging that Mr De Bellis suffers also from Tinnitus, there is no evidence to establish that this condition affects his functional capacity during the Qualification Period. Mr De Bellis reported to the JCA that is causes limited functional impact[25] and Dr Ghotra report that this condition causes minimal or limited impact on Mr De Bellis’ ability to function.[26]
DO MR DE BELLIS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[25] Exhibit 1, T Documents, T26, at page 138, Job Capacity Assessment report dated 26 February 2016
[26] Exhibit 1, T Documents, T9, pages 66-76, Medical Report completed by Dr Ghotra dated 8 July 2014.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[27] They are function based[28] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[29]
[27] Determination, ss 4(2) and 5(2)(a).
[28] Determination, s 5(2)(b) and (c).
[29] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[30]
(a)the 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.
[30] Determination, see s 6(3).
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.[31]
[31] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr De Bellis’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[32]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[32] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[33] the following is to be considered:[34]
(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.
[33] For the purposes of ss 6(4)(a) and (b) of the Determination.
[34] Determination, see s 6(5).
A condition is fully stabilised[35] if:[36]
(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:
(a)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;[37] or
(b)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[35] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[36] Determination, see s 6(6).
[37] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to 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.
However, before applying the Impairment Tables I must first consider Mr De Bellis’ medical history, in relation to the condition causing the Impairments.[38]
[38] Determination, see s 6(2).
ISCHAEMIC HEART DISEASE IMPAIRMENT
Is Mr De Bellis’ Ischaemic Heart Disease impairment permanent and likely to persist for at least 2 years?
In 2005 Mr De Bellis underwent a coronary angioplasty.[39]
[39] Exhibit 1, T Documents, T5, page 58, Record of Coronary Angioplasty dated 26 September 2009.
In 2014 Dr Ghotra reported that:
(a)Mr De Bellis’ ischaemic heart disease is expected to impact on his ability to function for more than 24 months but that the effect is uncertain;[40] and
(b)Mr De Bellis’ is currently treating this condition with medication and may have “cardiac review if able to afford a specialist visit”.
[40] Exhibit 1, T Documents, T9, page 71, Medical Report completed by Dr Ghotra dated 8 July 2014.

The JCA determined that Mr De Bellis’ Ischaemic Heart Disease was not fully diagnosed, not fully treated and not fully stabilised because, as at February 2016, he was still to undertake specialist review and further treatment was therefore likely. [41]
[41] Exhibit 1, T Documents, T26, pages 136-143, Job Capacity Assessment report dated 26 February 2016.
In April 2016 Dr Ghotra reported that the condition was permanent but having minimal impact.[42] Dr Ghotra reported that Mr De Bellis has seen a cardiologist who performed a stress test which was negative and increased Mr De Bellis’ cholesterol medication.[43]
[42] Exhibit 1, T Documents, T29, page 154, Medical Report completed by Dr Ghotra dated 28 April 2016.
[43] Exhibit 1, T Documents, T29, page 154, Medical Report completed by Dr Ghotra dated 28 April 2016.
The cardiologist review was in February 2016, which is after the Qualification Period, however the Secretary accepts that this information is relevant as it forms part of the ongoing monitoring of a chronic condition.[44]
[44] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 43.
The Secretary accepts that Mr De Bellis’ ischaemic heart disease Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[45]
[45] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 42.
I agree with the Secretary.
During the Qualification Period Mr De Bellis’ ischaemic heart disease Impairment was permanent and likely to persist for at least 2 years.
Using The Impairment Tables
I have to assess the level of impact of Mr De Bellis’ ischaemic heart disease Impairment against the descriptors[46] (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).[47]
[46]Determination, see ss 3 and 5(3).
[47] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
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.[48]
[48] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[49]
(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.
[49] Determination, see s 7.
I must not take into account the following information in applying the Tables:[50]
1symptoms reported by Mr De Bellis in relation to his condition where there is no corroborating evidence;
2unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr De Bellis’ local community.
[50] Determination, see s 8.
Which Tables are appropriate are determined by:[51]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[51] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[52]
[52]Determination, see s 10(3).
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.[53]
[53]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[54]
[54]Determination, see s 11(3).
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.[55]
[55]Determination, see s 11(5).
Evidence Identifying the Loss of Function
Dr Ghotra reported in July 2014 that, as a result of Mr De Bellis ischaemic heart disease Impairment, he experiences “chest pains on exertion (run 15 metres/sudden excitement) [and] episodic palpitations”.[56]
[56] Exhibit 1, T Documents, T9, pages 66-76, Medical Report completed by Dr Ghotra dated 8 July 2014.
In April 2016 Dr Ghotra reported that the condition was having minimal impact and that there was some fatigue due to Mr De Bellis’ weight.[57]
[57] Exhibit 1, T Documents, T29, page 154, Medical Report completed by Dr Ghotra dated 28 April 2016.
The JCA recorded what Dr Ghotra had reported in 2014.[58]
[58] Exhibit 1, T Documents, T26, page 137, JCA Report dated 26 February 2016.
In April 2016 Mr De Bellis reported to the ARO the following impacts on his ability to function:[59]
·Chest pain if runs for 10 seconds
·Can walk slowly on uneven ground
·If he does general shopping he will need to rest 4-5 times
[59] Exhibit 1, T Documents, T28, page 151, ARO Notes dated 14 April 2016.
Dr Dylan Ferley, Mr De Bellis’ current General Practitioner, recorded that Mr De Bellis reports that:[60]
“gets some exertional chest pain and shortness of breath on exertion. This happens frequently and almost every time [he] becomes significantly aroused. This has had a significant impact on his day to day life as he…need[s] to avoid stressful situations.”
[60] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment D.
The Secretary submits that little weight should be given to Dr Ferley’s report because he did not examine the patient in the Qualification Period.[61] Dr Ferley notes in his report that he is not familiar with Mr De Bellis, having only recently taken over his care.
[61] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 45.
Mr De Bellis gave evidence that he lives alone, cooks, cleans and takes care of all his daily needs.
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
In light of the evidence I consider that Table 1 of the Determination which deals with Functions requiring Physical Exertion and Stamina is the relevant Table.
Table 1 – Functions requiring Physical Exertion and Stamina Impairment Rating
The introduction to Table 1 provides that:
·     Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·     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 purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
- a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
The Secretary submitted that the appropriate Impairment Rating under Table 1 is 5 points.[62]
[62]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, paras 42 and 46.
In order to assign an Impairment Rating of 5 points under Table 1 the evidence would need to show that Mr De Bellis:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr De Bellis:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
The Secretary submits that little weight should be given to Dr Ferley’s report because he did not examine the patient in the Qualification Period.[63] Dr Ferley notes in his report that he is not familiar with Mr De Bellis, having only recently taken over his care.
[63] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 45.
I agree with the Secretary’s submission regarding the weight that can be given to Dr Ferley’s report. Further, this report was provided 10 months after the Qualification Period.
There is no corroborating medical evidence that Mr De Bellis:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities;
(b)is unable to walk far outside of his home;
(c)has difficulty, due to this impairment, in performing day to day activities.
The corroborating evidence of Dr Ghotra supports an Impairment Rating of 5 points. As Mr De Bellis’ ischaemic heart disease Impairment does not attract an Impairment Rating of 20 points, it does not qualify Mr De Bellis for the DSP.
OSTEOARTHRITIS – HANDS IMPAIRMENT
Is Mr De Bellis’ Osteoarthritis (hands) impairment permanent and likely to persist for at least 2 years?
In 2014 and 2015 x-rays of Mr De Bellis’ wrists were performed and found osteoarthritic changes in both wrists.[64]
[64]Exhibit 1, T Documents, T7, page 61, X-Ray report dated 7 April 2014; T19, page 124, x-ray report dated 19 October 2015; T25, Page 134, X-ray report dated 9 December 2015.
In 2014 Dr Ghotra reported that:[65]
(a)the osteoarthritis (hands) Impairment is expected to impact on his ability to function for more than 24 months but that the effect is uncertain; and
(b)Mr De Bellis was not having any treatment, except Panadol, for the condition and that future treatment depended on specialist advice.
[65] Exhibit 1, T Documents, T9, page 72-74, Medical Report completed by Dr Ghotra dated 8 July 2014.
In April 2015 Dr Kalanie, Orthopaedic Surgeon, performed a trapeziectomy and ligament reconstruction on Mr De Bellis’ left hand.[66] Dr Kalanie reported on 25 June 2015 that the symptoms experienced in the left hand were likely to affect Mr De Bellis’ capacity to work for 3-12 months and that he was awaiting surgery for the right hand.[67]
[66] Exhibit 1, T Documents, T12, page 83, Report of Dr Kalanie dated 24 April 2015.
[67] Exhibit 1, T Documents, T13, page 84, Medical Certificate of Dr Kalanie dated 25 June 2015.
In his DSP Application Mr De Bellis says:[68]
I do not want to get my right hand operated on because left hand is worse now than it was before surgery.
[68] Exhibit 1, T Documents, T18, at page 123, Mr De Bellis’ Claim for DSP dated 16 October 2015.
In April 2016 Dr Ghotra reported that Mr De Bellis’ osteoarthritis (hands) Impairment was permanent.[69]
[69] Exhibit 1, T Documents, T29, pages 153-154, Additional Medical Evidence for DSP Record provided by Dr Ghotra
dated 28 April 2016.
The JCA determined that Mr De Bellis’ osteoarthritis (hands) was fully diagnosed, fully treated and fully stabilised. [70]
[70] Exhibit 1, T Documents, T26, page 137, Job Capacity Assessment report dated 26 February 2016.
On 20 June 2016 Mr De Bellis was examined by Dr Tack-Shin Lee, Orthopaedic Surgeon. Dr Lee reported that Mr De Bellis may benefit from a trapeziectomy involving the right base of thumb and a proximal row carpectomy or a wrist fusion of the left wrist. Dr Lee recommended Mr De Bellis see Dr Marshall Darrin for an opinion.[71]
[71] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment B.
The Secretary accepts why Mr De Bellis does not want to take the risk associated with having surgery on his left hand (given the result to his right hand) and submits that Mr De Bellis’ osteoarthritis (hands) Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[72]
[72] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 32.
I agree with the Secretary.
During the Qualification Period Mr De Bellis’ osteoarthritis (hands) Impairment was permanent and likely to persist for at least 2 years.
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
In light of the evidence I consider that Table 2 of the Determination which deals with Upper Limb Function.
Table 2 – Upper Limb Function
The introduction to Table 2 provides that:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·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 purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
- a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
- results of diagnostic tests (e.g. X-Rays or other imagery);
- results of physical tests or assessments.
For the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submitted that the appropriate Impairment Rating under Table 2 is 5 points.[73] Mr De Bellis submits an appropriate Impairment Rating is 20 points.
[73]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, paras 32 and 41.
Evidence Identifying the Loss of Function
In July 2014 Dr Ghotra reported that Mr De Bellis’ osteoarthritis (hands) Impairment impacted Mr De Bellis’ level of endurance and his ability to lift, carry and manipulate objects. Dr Ghotra does not provide any additional information.[74]
[74] Exhibit 1, T Documents, T9, page 74, Medical Report completed by Dr Ghotra dated 8 July 2014.
In October 2015 Dr Ghotra reported that Mr De Bellis had difficulty gripping objects due to pain.[75]
[75]Exhibit 1, T Documents, T16, page 90, Verification of Medical Conditions completed by Dr Ghotra dated 8 October 2015.
Mr De Bellis says his osteoarthritis (hands) Impairment affects his functional ability as follows:[76]
…pain in hands making [it] hard to write, open and close taps, open jars, etc
…left hand wrist (sic) now seizes and locks up after surgery
[76] Exhibit 1, T Documents, T18, at page 123, Mr De Bellis’ Claim for DSP dated 16 October 2015.
The JCA reported that Mr De Bellis described “severe difficulty using both hands, carrying, handling and moving most objects and difficulty using a computer keyboard”.[77] However, as noted by the JCA, there is no corroborating medical evidence of this as required by Table 2.
[77] Exhibit 1, T Documents, T26, page 140, Job Capacity Assessment report dated 26 February 2016
Mr De Bellis told the ARO on 14 April 2016 that he:
has trouble cleaning himself in the shower and toileting, can’t sign his name using a pen due to pain, when he carries a cup of coffee it hurts both wrists, he drinks using both hands to support a cup, he is unable to turn the page of a magazine or book, he can’t untwist the nozzle on a hose, someone else does his groceries and he unpacks one thing at a time using a modified technique (e.g. uses hand with stomach or hand with forearm)
The description given by Mr De Bellis would indicate that his hands are not able to function. However, there is no corroborating medical evidence of this degree of severity as required by the Determination.
At the hearing Mr De Bellis confirmed that he can write, just with great difficulty. I also note that Dr Ghotra reported on 28 April 2016 that Mr De Bellis’ hands “are still functioning even though it is a severe condition”. This is not the description of someone with severe functional disability as Mr De Bellis described.
Unfortunately, Dr Ghotra has left Australia and is unable to be contacted for further information.[78] As a result, Mr De Bellis’ new General Practitioner, Dr Ferley, provided a report in November 2016.
[78] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment D.
Dr Ferley recorded what Mr De Bellis told him in a report dated 17 November 2016 as follows:[79]
[79] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment D.
Wrist pain has a significant impact on pt’s functionality in terms of
i) limiting movement
ii) carrying or twisting/turning objects such as carrying coffee mugs, turning door knobs and opening taps
iii) unable to sit or work from computer for any length of time
iv) unable to write and signing his name hurts
v) turning pages of book is a problem due to pain and mobility
…grip strength has been sig affected undoing bottles and jars is very painful and unable to perform his job as a mechanic as hammers and spanners are too much of a problem.
The Secretary submits that little weight should be given to Dr Ferley’s report because he did not examine the patient in the Qualification Period.[80] I agree. This report was prepared 10 months after the Qualification Period. Further, Dr Ferley notes in his report that he is not familiar with Mr De Bellis, having only recently taken over his care.
[80] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 37.

Dr Timothy Siu, Neurosurgeon, reviewed Mr De Bellis on 1 June 2016. He reported that “there was some generalised weakness in [Mr De Bellis’] hand movement”.[81]
[81] Exhibit 1, T Documents, T31, pages 156-157, Report of Dr Siu dated 1 June 2016.
In order to assign an Impairment Rating of 5 points under Table 2 the evidence would need to show that Mr De Bellis:
(1)[Mr De Bellis] can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)      handling very small objects (e.g. coins);
(c)      doing up buttons;
(d)   reaching up or out to pick up objects
In order to assign an Impairment Rating of 20 points under Table 2 the evidence would need to show that most of the following apply to Mr De Bellis:
(a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)the person has difficulty using a computer keyboard despite appropriate adaptations;
(d) the person has severe difficulty using a pen or pencil;
(e)the person has severe difficulty turning the pages of a book without assistance.
Mr De Bellis gave evidence that he:
(a)       lives alone, cooks, cleans and takes care of all his daily needs;
(b)      uses can openers to open cans;
(c)      wears clothes without zippers or buttons;
(d)      cannot hold a large milk container;
(e)      uses a computer to watch movies;
(f)      can write but not for too long.
There is no relevant corroborating medical evidence that Mr De Bellis:
(a)has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device;
(b) has severe difficulty using a pen or pencil; or that
(c)has severe difficulty turning the pages of a book without assistance evidence of how this impairment affects his ability to function.
While Mr De Bellis said that Dr Ghotra had not accurately recorded the impact of this Impairment on his ability to function, he accepted that Dr Ghotra had not addressed the Descriptors in Table 2.
This is a difficult decision because both Dr Ghotra and Dr Kalanie describe Mr De Bellis’ Osteoarthritis (hands) Impairment as causing “severe” pain.[82] Yet, the medical reports simply do not address the Descriptors in Table 2.
[82] Exhibit 1, T Documents, T11, page 82, Dr Kalanie’s report dated 30 September 2014; T13, Medical Certificate by
Dr Kalanie dated 25 June 2015; T16, page 90, Verification of Medical Conditions report by Dr Ghotra dated 8 October 2015; T29, page 154, Medical Report completed by Dr Ghotra dated 28 April 2016.
The available corroborating evidence of Dr Ghotra supports an Impairment Rating of 5 points. As Mr De Bellis’ osteoarthritis (hands) Impairment does not attract an Impairment Rating of 20 points, it does not qualify Mr De Bellis for the DSP.
In the event that this Impairment has deteriorated and further medical evidence is available, it is open to Mr De Bellis to submit a new application for DSP.
CERVICAL SPINE IMPAIRMENT
Is Mr De Bellis’ cervical spine impairment permanent and likely to persist for at least 2 years?
CT scans of Mr De Bellis’ cervical spine was performed in July and August 2015 and found “multi-level disco-vertebral and facet joint degenerative [at C3/4 level, C5/6 level and C6/7 level]…multilevel neural exit foraminal narrowing”.[83] MRIs of Mr De Bellis’ spine was performed on 5 August 2015 and found “minor posterior disc bulging and uncovertebral osteophytes narrow the neaural foramina bilaterally at C3-4, central posterior disc protrusion at C4-5, diffuse posterior disc protrusion and disc osteophyte complexes narrowing the neural foramen at C5-6 and C6-7”.[84]
[83] Exhibit 1, T Documents, T14, pages 86-87, CT Scan report dated 22 July 2015; T20, pages 125-126, CT scan
report dated 19 October 2015.
[84] Exhibit 1, T Documents, T15, pages 88, MRI report dated 5 August 2015; T21, pages 127-128, MRI report dated
19 October 2015.
On 8 October 2015 Dr Ghotra described Mr De Bellis’ condition as “chronic neck pain” and reported that it was permanent. Mr De Bellis was being treated with analgesics and physiotherapy.[85] However, Dr Ghotra also noted that Mr De Bellis was awaiting a neurosurgical opinion.
[85]Exhibit 1, T Documents, T16, page 90, Verification of Medical Conditions report by Dr Ghotra dated 8 October 2015
Dr Ghotra referred Mr De Bellis to Mr Matthew Cameron, Accredited Exercise Physiologist, in September 2015, for exercise physiology sessions for his chronic back pain. Mr Cameron reported in November 2015 that:[86]
(a)Mr De Bellis was “not responding well to Exercise Physiology and gentle exercise”,
(b)Mr De Bellis reported that after performing the exercises he had prescribed for 2-3 weeks:
(a)the “pain was worsening and progressing” down his arms;
(b)he felt a “lack of strength and ability to innervate biceps”; and
(c)has “sharp pains from the shoulder” down to his upper arm; and
(c)“further investigations may be recommended”.
[86] Exhibit 1, T Documents, T23, page 132, Report of Mr Cameron dated 26 November 2015.
The JCA concluded that Mr De Bellis’ chronic neck pain was fully diagnosed but not fully treated and not stabilised.[87]
[87] Exhibit 1, T Documents, T26, pages 136-143, Job Capacity Assessment report dated 26 February 2016.
Dr Siu, neurosurgeon, examined Mr De Bellis on 1 June 2016 and concluded that his “right arm pain and numbness are suggestive of a radicular problem secondary to his cervical foraminal stenosis”. Dr Siu said he discussed treatment options (continuing conservative measures, spinal injections and surgical decompressions). Mr De Bellis told Dr Siu he wanted to continue conservative treatment and Dr Siu advised him to speak to Dr Ghotra regarding the use of neuropathic medications to help his symptoms.[88]
[88] Exhibit 1, T Documents, T31, pages 156-157, Report of Dr Siu dated 1 June 2016.
The Secretary submits that Mr De Bellis’ cervical spine condition was not fully diagnosed, treated and stabilised in the Qualification Period because he had not seen the specialist Dr Siu until June 2016 (5 months after the Qualification Period), had only started physiotherapy in September 2015 and did not see the exercise physiologist until October 2015.[89]
[89] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 39.
I find that Mr De Bellis’ cervical spine condition, chronic neck pain, was fully diagnosed. However, I agree with the Secretary that until he had been examined and reviewed by Dr Siu and had undertaken reasonable treatment for the condition in the Qualification Period, this condition was not fully treated and not fully stabilised. Therefore, I am unable to assign an Impairment Rating.
In the event that this Impairment is now permanent, it is open to Mr De Bellis to submit a new application for DSP.
EYE ANOMALY – VISION LOSS IMPAIRMENT
In February 2016 the JCA determined that Mr De Bellis’ eye impairment was not fully diagnosed because it had not been verified by an ophthalmologist. [90]
[90] Exhibit 1, T Documents, T26, page 138, Job Capacity Assessment report dated 26 February 2016.
Since the JCA report was completed Mr De Bellis was seen by an Ophthalmologist, Dr Liam Lim. Dr Lim reports that:[91]
·Mr De Bellis had corneal surgery;
·He was offered the option of a corneal graft operation but due to the poor prognosis Mr De Bellis declined;
·There are no operations (other than corneal transplantation) that are suitable.
[91] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment A.
The Secretary accepts that Mr De Bellis’ eye Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[92]
[92] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 47.
I agree with the Secretary.
Evidence Identifying the Loss of Function
Dr Ghotra reported in July 2014 that, Mr De Bellis eye Impairment caused minimal or limited impact on his ability to function.[93]
[93] Exhibit 1, T Documents, T9, page 75, Medical Report completed by Dr Ghotra dated 8 July 2014.
Dr Lim reported in June 2016 that Mr De Bellis struggles with glare and with wearing glasses because of the poor vision in his left eye. Dr Lim also reported that Mr De Bellis’ right eye was excellent.[94]
[94] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment A.
Dr Ferley, Mr De Bellis’ current General Practitioner, recorded that Mr De Bellis reports that Mr De Bellis uses a magnifying glass and enlarged computer screens, that judging distance is difficult and that bright lights impact on his ability to function or drive.[95]
[95] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, Attachment D.
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
In light of the evidence I consider that Table 12 of the Determination which deals with Visual Function is the relevant Table.
Table 12 – Visual Function
The introduction to Table 12 provides that:
·     Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·     Self-report of symptoms alone is insufficient.
·     There must be corroborating evidence of the person’s impairment.
·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
- a report from the person’s treating doctor;
- a report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
- results of vision assessments (e.g. from an optometrist).
· Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
Where severe or extreme loss of visual function is evident or suspected, it is to be recommended that assessment by a qualified ophthalmologist occur to determine if the person meets the criteria for permanent blindness.
The Secretary submitted that the appropriate Impairment Rating under Table 12 is 5 points.[96] Mr De Bellis submitted that a rating between 5 and 10 points was appropriate.
[96]See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 53.
In order to assign an Impairment Rating of 5 points under Table 12 the evidence would need to show that Mr De Bellis:
… can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:
(a)… has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);
(b)… has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;
(c)when looking straight ahead, … has some difficulty seeing objects to the side or in the centre of their field of vision;
(d)… experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);
(e)…the person has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.
In order to assign an Impairment Rating of 10 points under Table 12 the evidence would need to show that Mr De Bellis:
(1) The person
(a)has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and
(c)has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and
(d) has at least one of the following:
(i)some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;
(ii)moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(iii)only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and
(2) The person:
(a)is able to function independently in familiar environments (that is, without regular assistance from other people); and
(b)is able to travel independently using public transport when using any assistive devices that they have and usually use.
The corroborating evidence of Dr Ghotra supports an Impairment Rating of 5 points. As Mr De Bellis’ visual eye Impairment does not attract an Impairment Rating of 20 points, it does not qualify Mr De Bellis for the DSP.
DYSLIPIDAEMIA IMPAIRMENT
Is Mr De Bellis’ Dyslipidaemia impairment permanent and likely to persist for at least 2 years?
In Health Summary Sheets provided by Dr Ghotra in 2014 and 2015,[97] Dr Ghotra reports that Mr De Bellis’ Dyslipidaemia is an active health condition. Dr Ghotra does not refer to this condition in his medical report dated 8 July 2014 as a condition relevant to a DSP claim.
[97]Exhibit 1, T Documents, T6, pages 59-60. Health Summary Sheet dated 26 March 2014; T17, pages 92-93, Health Summary Sheet dated 15 October 2015.
There is no other medical information provided concerning this condition.
The JCA concluded that confirmed that Mr De Bellis’ Dyslipidaemia condition was fully diagnosed, but not fully treated and not fully stabilised and reported that Mr De Bellis said he was seeking to have his medication to treat this condition reviewed.[98]
[98] Exhibit 1, T Documents, T26, pages 136-143, Job Capacity Assessment report dated 26 February 2016.
The Secretary submits that this condition is causing minimal impact and has not been fully treated and stabilised.[99] I agree with the Secretary. Therefore, no Impairment Rating can be assigned to Mr De Bellis’ Dyslipidaemia Impairment. This Impairment does not qualify Mr De Bellis for the DSP.
PLANTAR FASCIITIS CONDITION
[99] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 54.
Is Mr De Bellis’ Planter fasciitis impairment permanent and likely to persist for at least 2 years?
Mr De Bellis also suffers from Plantar fasciitis, and although he reported to the JCA that he has episodic right foot pain that impacts on his mobility/walking, he is not undertaking any treatment for this condition.[100]
[100] Exhibit 1, T Documents, T26, at page 139, Job Capacity Assessment report dated 26 February 2016
In the Health Summary Sheet provided by Dr Ghotra in 2015,[101] Dr Ghotra reports that Mr De Bellis’ plantar fasciitis is an active health condition. Dr Ghotra does not refer to this condition in his medical report dated 8 July 2014 as a condition relevant to a DSP claim.
[101] Exhibit 1, T Documents, T17, pages 92-93, Health Summary Sheet dated 15 October 2015.
There is no other medical information provided concerning this condition.
The JCA concluded that Mr De Bellis’ Plantar fasciitis condition was fully diagnosed, but not fully treated and not fully stabilised.[102]
[102] Exhibit 1, T Documents, T26, page 139, Job Capacity Assessment report dated 26 February 2016.
The Secretary submits that this condition is causing minimal impact and has not been fully treated and stabilised.[103] I agree. Therefore, no Impairment Rating can be assigned to Mr De Bellis’ Plantar fasciitis Impairment. This Impairment does not qualify Mr De Bellis for the DSP.
[103] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 12 January 2017, para 54.
CONCLUSION
None of Mr De Bellis’ Impairments have attracted an Impairment Rating of 20 points, therefore his claim fails. Mr De Bellis did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.
Mr De Bellis is, of course, able to submit a new application for DSP in the event that his conditions have deteriorated to such an extent that they have become permanent, attract a 20 point Impairment and he has completed a program of support.

I certify that the preceding 139 (one hundred and thirty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
.........................[Sgd]...............................................
Associate
Dated 24 March 2017

Date of hearing 28 February 2017

Applicant By phone

Solicitors for the Respondent Department of Human Services

[2017] AATA 365

24 March 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing	28 February 2017
Applicant	By phone
Solicitors for the Respondent	Department of Human Services