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

[2019] AATA 1297

Duthoit and Secretary, Department of Social Services (Social services second review) [2019] AATA 1297 (14 June 2019)

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Division:GENERAL DIVISION

File Number:2017/5364              

Re:Jacqueline Duthoit  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:14 June 2019

Place:Brisbane

The Tribunal affirms the decision under review.

...........................[SGD].....................................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)

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)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs  [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447;  (2014) 144 ALD 133

Gallacher v Secretary, Department of Social Services[2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

14 June 2019

INTRODUCTION

1. On 4 October 2016, Ms Jacqueline Duthoit (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]

   [1] Exhibit 1, T Documents, T43, page 330, Relevant Centrelink customer contact notes for the period 26.9.2016       – 29.03.17.

2. The claim was rejected on 1 November 2016,[2] on the basis that the Applicant had not replied to the letters Centrelink had sent her seeking further information. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 29 March 2017.[3]

   [2] Exhibit 1, T Documents, T24, pages 219-220, Centrelink Notice: Rejection of DSP claim.

   [3] Exhibit 1, T Documents, T33, pages 274-279, Authorised Review Officer Decision and Notes.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on

   
   

   10 August 2017.[4]

   [4] Exhibit 1, T Documents, T2, pages 3-9, Decision of the SSCSD.

4. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 6 September 2017.[5]

   [5] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.

5. On 24 September 2018, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence in person.

6. On 2 May 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[6] so that the matter would be determined by Member Mitchell. On 8 May 2019, a Directions Hearing was held. The parties did not wish to make further submissions.

   [6] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).

7. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of her claim or within 13 weeks thereafter.

   BACKGROUND

8. On the Applicant’s DSP claim form[7] she lists the following disabilities, illnesses or injuries:[8]

   -Diverticulitis – of bowel

   -Asthma

   -Arthritis

   -Foot – bone spurs x 6

   -Ankles

   -Fractured Back

   -Cysts on Kidneys

   -Blindness – both eyes

   [7] Exhibit 1, T Documents, T18, pages 179-208, DSP claim form.

   [8] Exhibit 1, T Documents, T18, page 204, DSP claim form.

9. A decision was made to reject the Applicant’s DSP application on 1 November 2016, on the basis that the Applicant had not replied to the letters Centrelink had sent her seeking further information.[9]

   [9]  Exhibit 1, T Documents, T24, pages 219-220, Centrelink Notice: Rejection of DSP claim.

10. The Applicant sought review of the decision and provided further medical evidence. 

11. On 8 February 2017, the Applicant attended a Job Capacity Assessment (JCA) interview with an Assessor, whose professional discipline is listed as Rehabilitation Counsellor.[10]  The Assessor considered the additional medical evidence and considered the Applicant’s intellectual disability, spinal disorder, plantar fasciitis and diverticulitis conditions.  The Assessor considered that only the Applicant’s intellectual disability condition was fully diagnosed, fully treated and fully stabilised and opined that the condition should be assigned 5 points under Table 9 of the Impairment Tables. The Assessor found that the Applicant’s baseline work capacity was 8-14 hours a week and would remain at that level within 2 years with intervention.[11]

    [10] Exhibit 1, T Documents, T30, pages 264-271, Job Capacity Assessment Report.

    [11] Exhibit 1, T Documents, T30, pages 264-271, Job Capacity Assessment Report.

12. On 29 March 2017, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[12]

    ·You have the following permanent conditions: Intellectual Disability and hypermetropic astigmatism (poor vision).

    ·Your conditions of intermittent chronic low back pain radiating down right leg occasional, secondary to degenerative spinal disease, right plantar fasciitis and Sigmoid Diverticulitis/Diverticulosis are not accepted as being permanent as they have not been fully treated and stabilised.

    ·Your total impairment rating is 5 points.

    ·You do not have an impairment rating of 20 points or more.

    ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.

    [12] Exhibit 1, T Documents, T33, pages 274-279, Authorised Review Officer Decision and Notes.

13. The Applicant provided further medical evidence and on 11 May 2017, she sought review of the DSP refusal decision by the SSCSD.[13] On 10 August 2017, the SSCSD affirmed the decision under review.[14]

    [13] Exhibit 1, T Documents, T39, pages 307-308, Referral to Social Services & Child Support Division.

    [14] Exhibit 1, T Documents, T2, pages 3-9, Decision of the SSCSD.

    THE LAW

14. The relevant law in assessing a person’s qualification for DSP is found in the
    Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).

15. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:

    1.Does the applicant have a physical, intellectual or psychiatric impairment;[15]

    2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and

    3.Does the Applicant have a continuing inability to work?[17]

    [15] Section 94(1)(a) of the Act.

    [16] Section 94(1)(b) of the Act.

    [17] Section 94(1)(c) of the Act.

16. The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

17. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[20]

    [18] Section 6(1) of the Determination.

    [19] Section 6(2) of the Determination.

    [20] Section 8(1) of the Determination.

18. Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]

    [21] Section 6(3) of the Determination.

19. In order for a person’s condition to be considered permanent the condition must:[22]

    (a)have been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)have been fully treated; and

    (c)have been fully stabilised; and

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

    [22] Section 6(4) of the Determination.

20. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[23]

    [23] Section 6(5) of the Determination.

21. A condition is considered to be fully stabilised if:[24]

    (a)       either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)       the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

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

    [24] Section 6(6) of the Determination.

22. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]

    [25] Section 6(7) of the Determination.

23. The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]

    [26] Section 10 of the Determination.

    [27] Sections 10(3) and (4) of the Determination.

    [28] Sections 10(5) and (6) of the Determination.

24. An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[29]

    [29] Section 11(1) of the Determination.

25. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support; and

    (c)be unable to participate in a training activity during the next 2 years or 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.

26. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[30]

    [30] Section 94(3B) of the Act.

27. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31] 

    [31] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

28. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[32]

    [32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].

    RELEVANT PERIOD

29. The Relevant Period in this matter commences on 4 October 2016, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 3 January 2017.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    ISSUES

30. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Respondent considers the Applicant’s impairments include intellectual disability,[34] spinal condition,[35] eyesight,[36] plantar fasciitis,[37] arthritis in both hands[38] and diverticulitis.[39]

    [33] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6, paragraph 30.

    [34] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraphs 31-38.

    [35] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-9, paragraphs 39-41.

    [36] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 42-44.

    [37] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 45-48.

    [38] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraphs 49-50.

    [39] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraphs 51-54.

31. The remaining issues for the Tribunal to consider are:

    1.Whether, within the relevant period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

32. The Tribunal has before it in this matter:

    -Exhibit 1 – section 37 T Documents (pages 1-342)

    -Exhibit 2 – Secretary’s Statement of Facts, Issues & Contentions dated 5 July 2018

    -Exhibit 3 – Medical Reports received from the Applicant on 11 June 2018

    -Exhibit 4 – Medical Report of Ms Wendy Bryant dated 19 April 2018

    -Transcript of Proceedings – Hearing by telephone conducted on 24 September 2018

33. The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables.  A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[40] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[41] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[42] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[43]

    [40] Section 6(3) of the Determination.

    [41] Section 6(4) of the Determination.

    [42] Section 6(2) of the Determination.

    [43] Section 8(1) of the Determination.

    Intellectual disability

34. The Applicant’s intellectual function has been tested with Psychology Assessment reports issued on 5 April 2013 by a Centrelink Psychologist[44] and on 19 April 2018 by Dr Wendy Bryant, Psychologist.[45]  The 5 April 2013 report assessed the Applicant’s Full Scale IQ in the Borderline range being 71 and found her adaptive behaviour score as 91 with functioning at the 27^th percentile.[46]  The 19 April 2018 report assessed the Applicant’s Full Scale IQ in the Borderline range being 74 and her found her adaptive behaviour score as 87 with functioning at the 19^th percentile.[47]

    [44] Exhibit 1, T Documents, T5, pages 92-135, Centrelink Psychology Assessment Report dated 5 April 2013.

    [45] Exhibit 4, Medical Report of Ms Wendy Bryant dated 19 April 2018.

    [46] Exhibit 1, T Documents, T5, pages 92-135, Centrelink Psychology Assessment Report dated 5 April 2013.

    [47] Exhibit 4, Medical Report of Ms Wendy Bryant dated 19 April 2018.

35. The Applicant’s intellectual disability has been accepted as a fully diagnosed, fully treated and fully stabilised condition in a number of JCA Reports.[48]

    [48] Exhibit 1, T Documents, T6, pages 136-141, Employment Services Assessment Report; T30, pages 264-271, Job Capacity Assessment Report; T38, pages 298-306, Job Capacity Assessment Report.

36. The ARO formed the view that the Applicant’s intellectual disability was fully diagnosed, fully treated and fully stabilised and could be assigned 5 impairment points under Table 9 of the Impairment Tables.[49]

    [49] Exhibit 1, T Documents, T33, pages 274-279, Authorised Review Officer Decision and Notes.

37. The Respondent contends that the Applicant’s intellectual disability is not fully diagnosed, fully treated or fully stabilised. The Respondent submitted that no impairment points could be assigned to the Applicant’s intellectual disability condition under Table 9 on the basis that there is no evidence the Applicant has been diagnosed with a condition resulting in low intellectual function, which originated before the applicant turned 18 years old.[50]

    [50] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraphs 31-38.

38. At Hearing the Applicant told the Tribunal:

    ·All of her life she had struggled with reading and writing because ‘apparently’ she has dyslexia;[51]

    ·She has a rough time remembering people’s names and cannot read a book like everybody else can she has to really concentrate on it;[52] and

    ·She did 800 hours at TAFE doing a literacy course in February 2017 and that is where they discovered she had a problem with the reading and writing and that.[53]

    [51] Transcript, page 7.

    [52] Transcript, page 21.

    [53] Transcript, pages 21-23.

1. Table 9 of the Impairment Tables relates to Intellectual function.  The introduction to Table 9 and the descriptors that relate to no functional impact, mild functional impact and moderate functional impact is as follows:

   Table 9 – Intellectual Function

Introduction to Table 9

·     Table 9 is to be used where the person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the person turned 18 years of age.

·     An assessment of the condition must be made by an appropriately qualified psychologist.

·     An assessment of intellectual function is to be undertaken in the form of a Wechsler Adult Intelligence Scale IV (WAIS IV) or equivalent contemporary assessment.  This assessment should be conducted after the person turns 16 years of age.  A Wechsler Intelligence Scale for Children (WISC) assessment completed between the ages of 12 and 16 years is also acceptable for people aged 18 years or under at the time of assessment.

·     An assessment of adaptive behaviour is to be undertaken in the form of either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R), the Vineland Adaptive Behaviour Scales (Vineland-II) or any other standardised assessment of adaptive behaviour that:

o   provides robust standardised scores across the three domains of adaptive behaviour (conceptual, social and practical adaptive skills);

o   has current norms developed on a representative sample of the general population;

o   demonstrates test validity and reliability; and

o   provides a percentile ranking.

·     Consideration of the adaptation of recognised assessments of intellectual function for use with Aboriginal and Torres Strait Islander peoples is required.

·     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:

o   a report from the person’s treating doctor;

o   supporting letters, reports or assessments relating to the person’s development, intellectual function, adaptive behaviour or participation in programs;

o   interviews with the person and those providing care, support or treatment to the person.

·     Diagnosis of a learning disorder such as dyslexia does not equate to a diagnosis of intellectual disability.

·     A person with Autism Spectrum Disorder, Fragile X Syndrome or Foetal Alcohol Spectrum Disorder who also has a low IQ should be assessed under this Table.

Points

Descriptors

0

There is no impact on intellectual function.

(1)      At least one of the following applies:

(a)      the person is assessed as having a score of adaptive behaviour of 90 or above, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)      the person is assessed as being within the percentile rank of 24 or above on a standardised assessment of adaptive behaviour.

5

There is mild impact on intellectual function.

(1)      At least one of the following applies:

(a)      the person is assessed as having a score of adaptive behaviour of between 80 to 89, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)      the person is assessed as being within the percentile rank of 9 to 23 on a standardised assessment of adaptive behaviour.

10

There is moderate impact on intellectual function.

(1)      At least one of the following applies:

(a)      the person is assessed as having a score of adaptive behaviour of between 71 to 79, on either the Adaptive Behaviour Assessment System (ABAS-II), the Scales for Independent Behaviour – Revised (SIB-R) or the Vineland Adaptive Behaviour Scales (Vineland-II); or

(b)      the person is assessed as being within the percentile rank of 3 to 8 on a standardised assessment of adaptive behaviour.

1. Based on the medical evidence set out above, I find that the Applicant’s intellectual disability was fully diagnosed, fully treated, fully stabilised during the Relevant Period. 

2. Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, I am satisfied that the Applicant’s impairment can at most be assigned 5 points under Table 9 of the Impairment Tables due to her scores of adaptive behaviour. During the Relevant Period, there is no corroborative evidence to suggest that the Applicant’s intellectual disability has caused functional impacts which should be assessed under additional Impairment Tables.

3. Based on the evidence before the Tribunal I find that the Applicant’s intellectual disability condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 5 points under Table 9 of the Impairment Tables.

   Spinal condition

4. The Respondent contends that the Applicant’s spinal condition was fully diagnosed, but not fully treated and fully stabilised at the Relevant period and as such the resulting impairment cannot attract an impairment rating under Table 4 of the Impairment Tables.  The Respondent relied on the following medical evidence in support of this contention:[54]

   ·Medical report by Dr Towett dated 27 March 2013 noting the condition is generally well managed and caused minimal or limited impact.[55]

   ·Medical report by Dr Stanley dated 10 November 2014 which confirmed a diagnosis of osteoarthritis and disc bulges and that the impact caused by the condition included unable to bend over, unable to do any heavy lifting and pain if the Applicant walked too far. Dr Stanley also reported the Applicant was continuing treatment of analgesics, physiotherapy, pain management and exercises.[56]

   ·CT report dated 4 October 2016 which noted the Applicant had a minor grade one anterolisthesis of L3 and L4 due to severe bilateral facet arthrosis and bilateral pars defects and that there were no significant disc bulges or canal stenosis or nerve root impingement.[57]

   ·Letter from physiotherapist, Joy Kim dated 7 November 2016 noting the Applicant had completed her allocated 3 physiotherapy sessions for 2016 and that the Applicant would benefit from continuing rehabilitation in 2017. Further that the Applicant had reported improvement in her lower back pain over the course of physiotherapy and that on examination, she had close to full lumbar range of movement.[58]

   ·Medical certificate by Dr Towett dated 28 November 2016 which referred to the condition as intermittent chronic low back pain.  Further, that treatment included medications and weight loss and exercises. Dr Towett noted the Applicant had physiotherapy.[59]

   ·Letter from rheumatologist, Dr McCormack dated 7 February 2017 stating the same finding from the CT report dated 4 October 2016 and also stating that physiotherapy for the back had been somewhat helpful and the Applicant had been compliant with all suggestions made.[60]

   ·Medical certificate by Dr Towett dated 21 June 2017 noting the Applicant had been referred to a spinal surgeon for review.[61]

   ·Medical certificate by Dr Towett dated 20 September 2017 noting the Applicant had been seen by the surgeon and advised conservative management.[62]

   [54] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraph 39.

   [55] Exhibit 1, T Documents, T4, page 89, Medical Report form by Dr Julie Towett.

   [56] Exhibit 1, T Documents, T8, pages 153-155, Medical Report form by Dr Jo Anne Stanley.

   [57] Exhibit 1, T Documents, T19, page 209, Exact Radiology Report: CT Scan Lumbar Spine.

   [58] Exhibit 1, T Documents, T35, page 283, Physiotherapy Report by Ms Joy Kim.

   [59] Exhibit 1, T Documents, T26, pages 229-232, Exact Radiology Report: Bone Densitometry.

   [60] Exhibit 1, T Documents, T29, pages 262-263, Medical Report by Dr Louise McCormack.

   [61] Exhibit 1, T Documents, T40, page 309, Medical Certificate by Dr Julia Towett.

   [62] Exhibit 1, T Documents, T41, page 310, Medical Certificate by Dr Julia Towett.

5. At Hearing the Applicant told the Tribunal:

   ·She has two fractures in her back in the L3 and L4 and the T12;

   ·She can walk but has to do it slowly on level ground;

   ·She has the use of a car and drives to the shop;

   ·She is meant to walk for 30 minutes a day but has to break this into two lots;

   ·She assists with some of the housework; [63]

   ·She hurt her back at work in 2007;[64]

   ·She goes to physiotherapy having five free sessions a year and she also does exercises every morning and every afternoon, she was given the exercises from the Mater Physio;[65] and

   ·She manages the pain with medication.[66]

   [63] Transcript, pages 8-11.

   [64] Transcript, page 25.

   [65] Transcript page 26.

   [66] Transcript page 28.

6. Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s spinal condition was fully diagnosed, however it was not fully treated or fully stabilised during the Relevant Period as she was still engaging in treatment and investigation of the condition at the Relevant Period.

7. As I have found that the Applicant’s spinal condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

   Eyesight condition

8. In a report dated 14 October 2016, Ms Kristan Wick, Optometrist provided that the Applicant had poor unaided vision but good vision with spectacles.[67]

   [67] Exhibit 1, T Documents, T23, pages 216-218, Eye Examination Report by Kristan Wick, Optometrist.

9. In a report dated 7 November 2016, Dr P O’Connor, Ophthalmologist stated that the Applicant had hypermetropic astigmatism since birth and right amblyopia with normal fields of vision and best correct visual acuity of 6/12 in her right eye and 6/5 in her left eye.[68]

   [68] Exhibit 1, T Documents, T25, pages 221-228, Request for Ophthalmologist/Optometrist Report by Dr P O’Connor.

10. In a report dated 11 June 2018, Ms Rebecca Hope, Optometrist provided that the Applicant had extremely poor unaided vision but fortunately her vision corrects very well with spectacles and she achieves acuities of 6/6 in her right eye and 6/6 in her left eye.[69]

    [69] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, Attachment A.

11. The Respondent contends that the Applicant’s eyesight condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period but that the condition does not cause a functional impact as the Applicant’s uses spectacles that correct her vision very well and as such an impairment cannot be assigned under Table 12 of the Impairment Tables.[70]

    [70] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 42-44.

12. At Hearing the Applicant told the Tribunal:

    ·She had an eye operation on her right eye when she was 7 because she was born blind in the right eye; and

    ·She wears thick spectacles and that they assist.[71]

    [71] Transcript, pages 11-12.

13. Based on the medical evidence before the Tribunal and the evidence provided by the Applicant at the Hearing, I am satisfied that the Applicant’s eyesight condition was fully diagnosed, fully treated and fully stabilised and caused minimal functional impact during the Relevant Period. Accordingly, I find that the Applicant’s eyesight condition can be assigned 0 points under the Impairment Tables.

    Plantar fasciitis condition

14. The diagnosis of the Applicant’s right plantar fasciitis condition (bone spur) was provided by Dr Julie Towett, General Practitioner in a Centrelink Medical Report dated 27 March 2013[72] and confirmed by Dr Jo Anne Stanley, General Practitioner on 10 November 2014.[73]

    [72] Exhibit 1, T Documents, T4, pages 83-91, Medical Report Form by Dr Julie Towett.

    [73] Exhibit 1, T Documents, T8, pages 147-157, Medical Report form by Dr Jo Anne Stanley.

15. The Applicant’s right plantar fasciitis condition was considered in a number of Employment Services Reports and JCA Reports between 2013 and 2017.

16. There is no further medical evidence before the Tribunal in relation to the Applicant’s right plantar fasciitis condition in relation to treatment, stabilisation or functional impact it may have on the Applicant.

17. The Respondent contends that the Applicant’s right plantar fasciitis condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period as there is no corroborating evidence regarding the condition.[74]

    [74] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 45-48.

18. At Hearing the Applicant told the Tribunal:

    ·She has to watch what she eats for example tomatoes really irritate the condition;

    ·She has a silicone heel in her shoes, which was specially made for her, to help with her bone spurs;

    ·She has the silicone heels in every pair of shoes she owns;

    ·When her back hurts, the pain shoots down her leg and makes her bone spur painful; and

    ·That she confirms there were no medical reports on this condition.[75]

    [75] Transcript, pages 13-14.

19. Due to the limited evidence before the Tribunal in relation to the Applicant’s plantar fasciitis condition I find that this condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.

20. As I have found that the Applicant’s plantar fasciitis condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Arthritis in both hands

21. There is no reference in the evidence before the Tribunal relating to the Applicant’s upper limb condition (being issues with her hands and wrists) during the Relevant Period.  The first reference is found in a report dated 7 February 2017 provided by Dr McCormack which provided that the Applicant had nodal osteoarthritis on her hands and that the Applicant was going to get an ultrasound of her wrist and she would see her again for review.[76]

    [76] Exhibit 1, T Documents, T29, pages 262-263, Medical Report by Dr Louise McCormack.

22. The Respondent contends that the Applicant’s arthritis in both hands was not fully diagnosed, fully treated or fully stabilised in the Relevant Period.[77]

    [77] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraphs 49-50.

23. At Hearing the Applicant told the Tribunal:

    ·She has three fingers on her left hand that have arthritis in every single joint and it is really painful;

    ·She uses Zorapid HP cream four times day and then has to put her glove on over the top and it is like her hand is on fire;

    ·Her left hand is worse than her right hand; and

    ·She had seen Dr McCormack or nearly two years and has also seen Dr Gray at the PA to get a second opinion, and confirmed there were currently no reports from Dr Gray before the Tribunal.[78]

    [78] Transcript pages 15-18.

24. Due to the limited evidence before the Tribunal in relation to the Applicant’s arthritis in both hands I find that this condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.

25. As I have found that the Applicant’s arthritis in both hands was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Diverticulitis condition

26. The Applicant had a colonoscopy on 6 October 2016 as a follow-up of diverticulitis.  The Colonoscopy report provided by the Endoscopy Unit of the Logan Hospital confirmed diagnosis of the Applicant’s diverticulitis condition and recommended:[79]

    (a)Discharge patient to home.

    (b)High fibre diet indefinitely.

    (c)Await pathology results.

    (d)Return to general practitioner in 2 weeks.

    (e)Dr Carolyn McIvor OPD clinic in 8 weeks for consultation and management of diverticulitis.

    [79] Exhibit 1, T Documents, T21, pages 211-213, Colonoscopy Report by Logan Hospital.

27. The Respondent contended that the Applicant’s diverticulitis condition was fully diagnosed but not fully treated and fully stabilised during the Relevant Period. The Respondent noted that there is no corroborating evidence regarding the outcome of a consultation including details of the management plan that was to occur with Dr Carolyn McIvor.[80] 

    [80] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraphs 51-54.

28. At Hearing the Applicant told the Tribunal that:

    ·She has to be careful with what she eats so that her diverticulitis does not flare up;

    ·It is very painful;

    ·The condition was diagnosed when her GP sent her to the Logan Hospital and she was admitted for two days; and

    ·She uses Metamucil to help calm down the condition.[81]

    [81] Transcript, pages 18-20.

29. On cross-examination, the Applicant told the Tribunal:

    ·She saw a dietitian in November and has been on a diet ever since, so she knows what she can and cannot eat and knows immediately or within an hour or so if she eats something that she should not have;

    ·That she had not been to see Dr McIvor after her colonoscopy and she had not followed up with the hospital she had just been seeing her doctor;

    ·If she stays away from food she should not have then she might get a little flare-up once a week; and

    ·She manages flare-ups with Metamucil.[82]

    [82] Transcript pages 32-34.

30. Based on the medical evidence before the Tribunal, and the evidence provided at Hearing by the Applicant, I find that the Applicant’s diverticulitis condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period as there was ongoing treatment and stabilisation of the condition to occur at the Relevant Period.

31. As I have found that the Applicant’s diverticulitis condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Continuing inability to work

32. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

33. I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

34. I find that the Applicant’s intellectual disability was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 9 of the Impairment Tables.

35. I find that the Applicant’s spinal and diverticulitis conditions were fully diagnosed, however were not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

36. I find that the Applicant’s eyesight condition was fully diagnosed, fully treated and fully stabilised and caused minimal functional impact during the Relevant Period. Accordingly, I find that the Applicant’s eyesight condition is assigned 0 points under the Impairment Tables.

1. I find that the Applicant’s plantar fasciitis and arthritis in both hands conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.

2. I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.

3. Accordingly, the decision under review is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.......................[SGD]......................................

Associate

Dated: 14 June 2019

Date of hearing:	24 September 2018
Applicant:	In person
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services