Edwards and Secretary, Department of Social Services (Social services second review) - [2019] AATA 552

Edwards and Secretary, Department of Social Services (Social services second review) [2019] AATA 552 (28 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2305
Re:Steven Edwards
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I F Thompson
Date:28 March 2019
Place:Adelaide

The decision under review is affirmed.
...........[Sgnd]..............................................
Member I F Thompson
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension – physical, intellectual or psychiatric impairment – whether an impairment rating of 20 points or more exists under the Impairment Tables – multiple impairments – whether impairment was fully diagnosed, treated and stabilised – medical reports considered - Job Capacity Assessment Report considered – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Member I F Thompson
28 March 2019
INTRODUCTION

The Applicant, Steven Edwards, lodged a claim for Disability Support Pension (“DSP”) on 11 November 2016. Centrelink rejected the claim in the first instance and Mr Edwards requested a review of that decision. On 23 January 2018, an Authorised Review Officer (“ARO”) of Centrelink affirmed the decision. Mr Edwards requested a review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”). The decision under review was affirmed by AAT1 on 5 April 2018. On 27 April 2018, Mr Edwards applied to the General Division of the Tribunal for a second review (“AAT2”).
The hearing took place on 22 February 2019. Mr Edwards attended the hearing and was self‑represented. His wife attended in support of him. Mr Morris represented the respondent, the Secretary, Department of Social Services.
Mr Edwards gave evidence and called one witness, namely his general medical practitioner, Dr Roesler. The Tribunal received in evidence the documents lodged in accordance with s 37 of the Administrative Appeals Tribunal Act 1975, together with various medical reports and other documents.
Mr Edwards is now 52 years old. He suffers from a number of medical conditions which include conditions relating to his upper limbs, spine, hernia, learning difficulties, and mental health.
LEGISLATION AND ISSUES
Section 94(1) of the Social Security Act 1991 (“the Act”) provides that a person is qualified for DSP if the person has one or more physical, intellectual or psychiatric impairments which attract a rating of 20 points or more under the Impairment Tables, and has a continuing inability to work. The impairment must be present at the time of the claim or within the following 13 weeks (“the assessment period”), as specified by the Social Security (Administration) Act 1999 (“the Administration Act”). The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). The assessment period in this case is 11 November 2016 to 10 February 2017.
Further, s 94 of the Act requires that a person has a continuing inability to work which will be satisfied if:
(a)They have an inability to work due to their accepted impairments for 15 hours or more a week, or undertake a training activity within the next two years; and
(b)They have actively participated in a “program of support”.
The second requirement is not necessary if a person has a severe impairment assigned 20 points or more under a single Impairment Table.
Accordingly, Mr Edwards will qualify for the DSP if the Tribunal is satisfied that he has one or more physical, intellectual or psychiatric impairments, and that the impairment is rated at least 20 points under the Impairment Tables, and that he has a continuing inability to work. In the absence of a severe impairment, one of the requirements for a continuing inability to work is the active participation in a program of support.
Mr Edwards’s claim for DSP listed his disabilities, illnesses and injuries as “arthritis in neck, middle and lower back, hernia, illiterate, depression/anxiety.”[1]
[1] Exhibit 1, T Documents, T9, page 147.
The Secretary accepted that Mr Edwards suffers from an impairment and therefore satisfied s 94(1)(a) of the Act.
In the Statement of Facts and Contentions, the Secretary submitted that:
·     the upper limb condition could be assigned 5 impairment points under Impairment Table 2;
·     the spinal condition could be assigned 5 impairment points under Impairment Table 4;
·     it was not possible to rate the impairments concerning Mr Edwards’ intellectual function, mental health condition, and inguinal hernia; and
· an overall impairment rating of 10 points does not satisfy s 94(1)(b) of the Act.
Accordingly, the Secretary contended that Mr Edwards did not have an impairment rating of at least 20 points and was not qualified for the DSP during the assessment period.
The main issue for determination is whether Mr Edwards’ impairments could be assigned 20 points or more under the Impairment Tables during the assessment period and, if so, whether he had a continuing inability to work.
EVIDENCE OF MR EDWARDS
Mr Edwards gave quietly-spoken evidence which was consistent, clear and honest. He told the Tribunal that he resides in suburban Adelaide with his wife and extended family.
Prior to the DSP claim, Mr Edwards had a long history of employment. After leaving school while he was still a teenager, he worked continuously until he was injured at work in 2015. He had worked in labouring jobs, mainly in erecting brush fences and also for a local council. He worked long hours in tough conditions, and enjoyed his work. Unfortunately, the injury that he sustained at work was severe. It immediately caused excruciating pain to his back and lower limbs. He has not been able to work again in paid employment since that time.
In the months following the injury, and during the assessment period, Mr Edwards suffered pain in the left side of his neck, the left shoulder, and the mid and lower back. His doctor arranged for cortisone injections in an attempt relieve the pain Mr Edwards was suffering.
Mr Edwards also had problems with his hands as he suffered carpel tunnel in both of them. Those problems date back to an accident that occurred when he was 17 years of age.
Subsequent to the injury in 2015, and following medical advice, Mr Edwards took medication to reduce the effects of the physical pain and to try and reduce the tension and frustration that he was feeling. He received treatment and guidance on a regular basis from his general medical practitioner, Dr Roesler. He also received psychological treatment, which he did not find particularly helpful.
Mr Edwards told the Tribunal about the effects of his medical conditions during and following the assessment period. He drives a car, mainly on short trips. Sitting in the car causes pain in his lower back and groin. At home, he avoids bending and prefers squatting. He tries to avoid overhead activity because of shoulder pain. He assists his wife with the shopping and in domestic tasks including cooking, cleaning, mopping, and washing dishes. He can lift a carton of milk and he can walk for half an hour or a bit more. To the extent that he is able, he has tried to remain active and, as he put it, “‘push through the pain”. Mr Edwards cannot read and relies on others to interpret for him.
CONSIDERATION
It is important to note the comments of the Tribunal in Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs:[2]
“In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances.”
[2] [2012] AATA 922 at [34].
In addition, the way in which the Tribunal must assess evidence of treatment after the assessment period has been discussed in a number of decisions. In Re Fanning and Secretary, Department of Social Services,[3] DP Handley stated at [33]that:
“The language in clauses 6(5) and 6(6) of the 2011 Determination is forward-looking. With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether “any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years” (emphasis added). While hindsight may suggest that treatment did not result in improvement within two years that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision”.
[3] [2014] AATA 447.
Those comments are particularly relevant to the present case given the significant and unfortunate lapse of time between the lodging of the DSP claim on 11 November 2016 and the hearing before this Tribunal on 22 February 2019. This is a period of more than two years. The effect of Mr Edwards’s evidence, and some of the medical evidence, is that the impacts of his medical conditions have not significantly improved, but have worsened over the last two years. However, the task for the Tribunal is to assess those conditions and their functional impact at the time of the DSP claim and the assessment period.
Accordingly, the applicable impairment rating, if any, for each of Mr Edwards’s conditions will be considered in turn by reference to the Impairment Tables.
IMPAIRMENT TABLES
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of impairment. They are based on function rather than diagnosis and they describe functional activities, abilities, symptoms, and limitations.
Section 6 of the Impairment Tables provides the rules for applying the tables and states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and the impairment results from a condition that is more likely than not to persist for more than two years.
The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity, which is rated under the Impairment Tables, concerns the question of an individual’s capacity to work.
Section 6(5) of the Impairment Tables provides that a decision of whether a condition is fully diagnosed and fully treated requires consideration of corroborating evidence of the condition, the treatment or rehabilitation that the person has had for the condition, and whether treatment is continuing or is planned in the next two years.
Section 6(6) of the Impairment Tables states, in part, that a condition is fully stabilised when a person has undertaken reasonable treatment and any further reasonable treatment is unlikely to result in significant functional improvement to a level which would enable the person to undertake work in the next two years.
The applicable impairment rating for each of Mr Edwards’ conditions will be considered in turn by reference to the Impairment Tables.
Spinal condition
The Secretary correctly accepted that Mr Edwards’ spinal condition was fully diagnosed, fully treated and fully stabilised in the assessment period. Accordingly, an impairment rating can be given for this condition.
By letter dated 28 January 2016,[4] Dr Hall, a spinal consultant at the Royal Adelaide Hospital, wrote that there were degenerative changes to the cervical spine, mainly at the C4/5 level, and multiple level changes in the thoracic spine. He noted degenerative changes of the lower three lumbar levels, with spondylolisthesis at L5/S1. He wrote that, despite the degenerative changes, the spinal canal was preserved and there was no significant nerve root impingement. Dr Hall noted that, clinically, Mr Edwards presented with pain across the lower back and without referral to the lower limbs, and that there were no neurological features. Surgical intervention was not indicated and it was unlikely that physiotherapy would help.
[4] Exhibit 1, T Documents, T13, pp 201 - 202.
In a report dated 7 November 2016,[5] Dr Thoo, an occupational physician, described Mr Edwards’ impairment in the cervical, thoracic, and lumbar spine as significant. He saw little prospect of Mr Edwards returning to heavy, manual work.
[5] Ibid, T13, pp 211 - 212.
Dr Thoo’s report pointed out that Mr Edwards was tender in the mid cervical spine, with a reasonably good range of movement. There was slight tenderness in the mid thoracic and at the upper lumbar sacral junction. Dr Thoo added:
“He had almost full rotation and lateral flexion of the thoracolumbar spine, but was only able to flex with his hands reaching his knees. Extension was almost full. Straight leg raising was 75 degrees bilaterally with positive nerve root tension signs. Neurological examination of his upper and lower limbs was intact.”[6]
[6] Ibid.
Dr Roesler is Mr Edwards’ general medical practitioner. She wrote several reports and medical certificates. In addition, she gave evidence to the Tribunal by telephone.
There was a contrast in some aspects of Dr Roesler’s reports compared with parts of her oral evidence as highlighted in cross-examination. In effect, the impact of some of Mr Edwards’ physical restrictions and limitations, which Dr Roelser summarised in her written reports, must be seen in the context of the totality of the evidence before the Tribunal including, most importantly, the evidence of Mr Edwards himself.
The concessions which Dr Roesler made in her evidence must be taken into account. For example, in her report written on 4 April 2018,[7]she wrote that Mr Edwards “cannot walk for any period”. However, in her oral evidence, she acknowledged that she should have written that he cannot walk for any period without pain. Similarly, she wrote in that report that Mr Edwards cannot “sit in a car for more than 20 minutes” but, in oral evidence, acknowledged that she should have written that he cannot do so without discomfort. She also wrote in the same report that Mr Edwards is unable perform activities of daily living, such as making a bed. In evidence, however, she acknowledged that this inability was intermittent.
[7] Exhibit 3.
In her report dated 26 November 2016,[8] which is shortly after the DSP claim was lodged, Dr Roesler noted that Mr Edwards suffered from cervicalgia, headaches and neck pain. She wrote that the chronic lumbar discogenic back pain was stable. In her opinion, the lumbar back pain was causing severe disability and had the greatest impact.
[8] Exhibit 1, T Documents, T13, pp 193 - 196.
A Job Capacity Assessment Report (“JCA Report”)[9] submitted on 10 April 2017 followed an interview with Mr Edwards conducted by an assessor.
[9] Ibid, pp 153 - 162.
The JCA Report referred to, and summarised, the medical reports written prior to, and during, the assessment period. In particular, reports from that period which were taken into account included reports by Dr Roesler, Dr Hall, and Dr Thoo, together with radiology reports by Dr Benson. All of those reports were among the documents which were in evidence before the Tribunal.
The JCA Report noted that Mr Edwards:
“ …self-reported that the walks for an hour to 45 minutes, helps his wife with household cleaning, independent with all elements of self-care, however some days has to raise his leg to tie his shoes up. He advised that he undertakes lighter household maintenance……he is able to drive both manual and automatic vehicles and move head in all directions”[10]
[10] Ibid, page 154.
The JCA Report went on to conclude that there was a mild functional impact on activities involving spinal function, with some difficulty in activities overhead, and also with bending and straightening up.
These observations in the JCA Report are broadly consistent with the comments which Mr Edwards made in evidence about the impact of the spinal condition on his daily activities and routines during the assessment period and through to the present time.
Impairment Table 4 is the relevant table in relation to spinal condition. It is used where the person has a permanent condition that leads to functional impairment in activities involving spinal function, in particular bending or turning the back, trunk or neck.
For a moderate functional impact on activities involving spinal function, the Impairment Table provides:

Points

Descriptors

10

There is a moderate functional impact on activities involving spinal function.

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

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

The Tribunal has taken into account Mr Edwards’ evidence together with all of the medical evidence and reports regarding spinal function. During the assessment period, he was able to drive a car for at least 30 minutes. He was unable to sustain overhead activities and unable to bend forward to knee height.
The Tribunal is satisfied that Mr Edwards’ condition involving spinal function meets the descriptors for a moderate functional impact, particularly in relation to (1)(a) and (c) of the descriptors. Accordingly, the appropriate rating is 10 impairment points in respect of Mr Edwards’ spinal function.
Upper limb condition
Dr Roesler wrote in her report dated 26 November 2016[11] about restrictions to Mr Edwards’ upper limb, which she concluded were severe. She mentioned problems with lifting, reaching out, lack of strength in the hands, and left finger parenthesis, which individually and together caused interference with various activities of daily living.
[11] Ibid, pp 193 - 196.

In 2014, Mr Edwards was assessed for carpel tunnel syndrome in the left hand. A report from a neurologist, Dr Jannes, noted left carpel tunnel syndrome of moderate severity, and surgical decompression was recommended.[12]
[12] Ibid, page 203.
Following a left shoulder ultrasound and injection, Dr Benson reported on 12 May 2016 that there was evidence of moderate bursitis. The rotator cuff was intact and there was no capsular distension or bony irregularity.[13]
[13] Ibid, page 205.
On 7 November 2016, Dr Thoo reported that Mr Edwards was suffering from bursitis and impingement of the left shoulder, and that two cortisone injections had provided temporary relief. Mr Edwards remained with left shoulder pain.[14]
[14] Ibid, pp 211 - 212.
The JCA Report provided an analysis of the shoulder condition and concluded that it was fully diagnosed, fully treated and fully stabilised. The JCA Report summarised the impact of the shoulder condition and the interference that it causes in activities of daily living, noting that Mr Edwards:
“…advise that he is able to lift above shoulder height.”[15]
[15] Ibid, page 155.
Impairment Table 2 provides the descriptors of impairment relating to upper limb function. For a mild functional impact, Table 2 states:

Points

Descriptors

5

There is a mild functional impact on activities using hands or arms.

(1)      The person 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.

Taking into account the medical evidence together with Mr Edwards’ evidence, the Tribunal is satisfied that his upper limb condition was fully diagnosed, fully treated, and fully stabilised during the assessment period. The Tribunal considers that Mr Edwards’ upper limb function attracts a rating of 5 points under Impairment Table 2 for a mild functional impact, in particular in meeting the descriptors in (1)(a), (c) and (d).
Mental health
Impairment Table 5 refers to mental health function. It is used where the person has a permanent condition that leads to functional impairment arising out of a mental health condition.
Ms Douglas is a psychologist and hypnotherapist and she wrote two reports dated 17 August 2016 and 31 January 2019.[16] The reports confirm that Mr Edwards attended three sessions with Ms Douglas in mid-2016, with the first session occurring on 28 June 2016 and the last on 15 August 2016.
[16] Exhibit 3.
It appears from Ms Douglas’ reports that Mr Edwards was not experiencing anxiety at the time of the final session; however he reported symptoms of depression that were probably in the moderate range. Ms Douglas suggested that medication might be appropriate and her recommendations for future management were self-maintenance and monitoring by his general medical practitioner, with possible referral to a psychiatrist if further deterioration occurred.
Ms Douglas also pointed out that, unfortunately, Mr Edwards’ problems with literacy posed a difficulty for the type of paper-based therapy that she would deliver. For that reason, the psychology sessions were terminated earlier than would have been the case for clients who do not have those difficulties with literacy.
Mr Edwards was referred by Dr Roesler to a psychiatrist, Dr Jayakrishnan Sukumaran Nair, whose report was written on 20 September 2018.[17] This is almost two years after the assessment period. In relation to a mental state examination, the report noted that Mr Edwards:
“…presented as generally calm and engaging. There was sense of disappointment. There was no evidence of any thought disorder. There were themes related to worry about the difficulties he’s facing with his life. The sense of disappointment and anxiety was obvious in his affect but he was generally reactive and was able to smile from time to time during conversation. His insight and judgement were reasonable. Rapport was established.”
[17] Ibid.
The observations which Dr Jayakrishnan Sukumaran Nair made about Mr Edwards’ demeanour, sense of disappointment, insight, and concerns, are consistent with his demeanour while giving evidence to the Tribunal. In all likelihood, Mr Edwards’ disappointment and frustration have increased over the years since the injury at work. His ability to carry out his family commitments, together with his need and desire to work gainfully, have been adversely affected in a way that he never anticipated and never wanted. Combined with the difficulties that he has with literacy and numeracy, and the lack of vocational options for him, it is unfortunate, though not surprising, that he experiences a reduced sense of self-confidence and self-esteem.
Dr Jayakrishnan Sukumaran Nair made recommendations in his report in relation to insomnia, medication for chronic pain, psychological assistance and an IQ assessment. Those recommendations are being pursued actively through the support and co-ordination of Mr Edwards’ general medical practitioner, Dr Roesler.
Dr Roesler was emphatic in her reports about the nature and impact of Mr Edwards’ mental health status. In her report dated 26 November 2016,[18] she wrote that he suffered from chronic dysthymia and social anxiety following his loss of career and loss of functionality.
[18] Exhibit 1, T Documents, T13, pp 193 - 196.
Dr Roesler’s report dated 4 April 2018[19] describes Mr Edwards’ psychological condition, in terms of chronic dysthymia and social anxiety, as severe.
[19] Exhibit 2.
Impairment Table 5 specifies that the diagnosis of the mental health function must be made by an appropriately qualified medical practitioner (including a psychiatrist) with evidence from a clinical psychologist if the diagnosis is not by a psychiatrist.
The Tribunal is satisfied that Mr Edwards suffered from a diagnosed mental health condition in the assessment period. However, it is clear that treatment by the psychologist and hypnotherapist, Ms Douglas, consisted of three sessions in mid-2016, without subsequent psychology treatment. In evidence, Dr Roesler stated that she has some training in mental health, with a focus on cognitive behaviour therapy, which Mr Edwards has used in some of her consultations in her general practice to deal with his adjustment to pain.
On consideration of all of the evidence regarding mental health function, the Tribunal is satisfied that the mental health condition was fully diagnosed however, it was not fully treated and not fully stabilised during the assessment period. Accordingly, it does not attract an allocation of points under the Impairment Table.
Learning disability
Two important factors emerge from the evidence. One of them relates to illiteracy and numeracy and the other relates to Mr Edwards’ IQ level.
The evidence demonstrates clearly that Mr Edwards has lifelong difficulties with literacy and numeracy. Ms Douglas’ psychology report[20] mentions that other family members had reading difficulties, and some may have been diagnosed with dyslexia. Mr Edwards had reported that his numeracy was better than his literacy. Indeed, the impression from all of the evidence is that Mr Edwards is severely illiterate. He has suffered throughout his life, in numerous ways, at school, in the workforce, and in daily activities, because of illiteracy. Coping with it has required him to seek support in numerous ways to get through the activities of daily life and community participation that many, or most, take for granted.
[20] Exhibit 3.
Impairment Table 7 is used where a person has a permanent condition which results in functional impairment through neurological or cognitive function. The diagnosis must be made by an appropriately qualified medical practitioner. Impairment table 7 provides examples of conditions which would come within scope, such as acquired brain injury, strokes, conditions that result in dementia, brain tumours, and neurodegenerative disorders.
In her report dated 4 April 2018,[21] Dr Roesler outlined the result of a test, or tool, that addresses foundation skills in learning, reading, writing, oral communication, and numeracy. She noted that Mr Edwards had very limited reading and vocabulary skills, and a limited ability to write, and was in an overall range that was not considered to be an adult range.
[21] Exhibit 2.
Ms Douglas wrote in her reports about the problems that Mr Edwards has encountered in using paper-based exercises to carry out psychological testing. While that is unfortunate, it may well be that further and differential testing mechanisms could be used.
Indeed, Dr Jayakrishnan Sukumaran Nair tried what he described as “basic cognitive assessment RUDAS (Rowland Universal Dementia Assessment Scale)”. Mr Edwards did “reasonably well on the testing except for delayed recall”.[22]
[22] Exhibit 3.
In all, however, without further assessments of cognitive function or the results of diagnostic tests, the evidence before the Tribunal does not support a finding that Mr Edwards has a permanent condition related to neurological or cognitive function that has been fully diagnosed, fully treated and stabilised. No impairment points could be rated under Impairment Table 7.
Impairment Table 9 refers to intellectual function. It is used where a person has a permanent condition resulting in low intellectual function (IQ score of 70 to 85) resulting in functional impairment, which originated before the age of 18. The assessment must be made by a suitably qualified psychologist and criteria are set out for the types of assessments that are necessary. They include an assessment of intellectual function and an assessment to adaptive behaviour done by psychological testing using specified scales and techniques.
The type of psychological testing which Mr Edwards would have to undergo, as required by Impairment Table 9, has not occurred. Accordingly, the evidence does not support a finding that a condition resulting in low intellectual function has been fully diagnosed, treated and stabilised during the assessment period. This is not for lack of trying. Clearly Dr Roesler has been endeavouring to arrange for Mr Edwards to have an IQ assessment. The cost of assessment is one prohibitive factor. The problem with Mr Edwards’ literacy is yet another factor. Finding someone, or some agency, who is able to carry out the necessary assessments seems to have been a further frustrating obstacle.
It should also be noted that Impairment Table 9 states that diagnosis of a learning disorder, such as dyslexia, does not equate to a diagnosis of intellectual disability.
Other conditions
Dr Roesler’s reports and certificates refer to Mr Edwards’ inguinal hernia. An ultrasound was carried out which confirmed the condition.[23] However, the evidence was not sufficient to have any bearing upon the impairment ratings.
[23] Exhibit 1, T Documents, T13, page 207.
SUMMARY
The Tribunal finds that s 94(1)(a) of the Act regarding physical impairment is satisfied.
As outlined, the Tribunal finds that Mr Edwards’ spinal condition was fully diagnosed, fully treated and fully stabilised during the assessment period. The appropriate rating for that condition is 10 impairment points.
Mr Edwards’ upper limb condition was fully diagnosed, treated and stabilised during the assessment period. The appropriate rating for that condition is 5 impairment points.
An impairment rating cannot be given in relation to mental health function, neurological or cognitive function, and intellectual function.
With a total of 15 impairment points. Mr Edwards does not have a severe impairment or combination of impairments attracting a rating of at least 20 points under the Impairment Tables during the assessment period. Therefore, he does not satisfy s 94(1)(b) of the Act.
In those circumstances, it is not necessary to consider whether or not, during the assessment period, Mr Edwards had a continuing inability to work within the meaning of s 94(1)(c) of the Act.
As Mr Edwards was not qualified for DSP at the time he lodged the claim or within 13 weeks of that date, the Tribunal is obliged to affirm the decision under review.
DECISION
The Tribunal affirms the decision under review.

85. I certify that the preceding 84 (eighty-four) paragraphs are a true copy of the reasons for the decision herein of Member I F Thompson

.......[Sgnd]..............................
Associate
Dated: 28 March 2019

Date of hearing: 22 February 2019

Applicant: In person

Advocate for the Respondent: Oliver Morris, Department of Human Services

Date of hearing:	22 February 2019
Applicant:	In person
Advocate for the Respondent:	Oliver Morris, Department of Human Services