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

Edwards and Secretary, Department of Social Services (Social services second review) [2018] AATA 1461 (31 May 2018)
Division:GENERAL DIVISION
File Number: 2017/4599
Re:Narelle Edwards
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:31 May 2018
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – disability support pension – requirement that the person’s impairment is of 20 points or more under the Impairment Tables not met –decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (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) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
31 May 2018
INTRODUCTION

On 6 September 2016, Ms Narelle Edwards (“Applicant”), applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T8, pages 90 – 119, Claim for DSP, dated 6 September 2016.
On 9 February 2017, the Department of Human Services (“Centrelink”) advised the Applicant that her application had been rejected.[2] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[3]
[2] Exhibit 1, T Documents, T9, pages 120 – 121, DSP Rejection, dated 9 February 2017.
[3] Exhibit 1, T Documents, T10, pages 122 – 128, ARO Decision, dated 2 March 2017.
On 13 March 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[4]
[4] Exhibit 1, T Documents, T2, pages 7-12, Decision of the Social Services & Child Support
Division, dated 12 July 2017.
Following this, the Applicant sought a second tier review of her matter by the General and Other Divisions of this Tribunal, by way of an Application dated 3 August 2017.[5]
[5] Exhibit 1, T Documents, T1, pages 1-6, Application for Review, dated 3 August 2017.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP and did not have an inability to work.
On 16 March 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 6 September 2016, or within 13 weeks thereafter, being up until 6 December 2016 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form she listed the following disabilities, illnesses or injuries:
“PTSD started age 12 to date from Childhood abuse from Stepmother’s Neglect (Stepmother has been Reported to Police in WA & QLD)
Anxiety disorder & panic attacks, social phobias, fear of snakes on daily basis,
nightmares of Stepmother and former partner (my Children’s father Commit Suicide 2010 hanged himself) Nightmares, ongoing fears thoughts, triggers, noises, memories of Event Trauma, Grief, sadness, depression, headaches, daily pain from Arthritis Ankylosing spond[y]litis, foot, shoulder lower back pain, Sciatic nerve pain in left hip & leg, neck pain, THYROID HYPOTHYROID Thyroxine daily.”[6]
[6] Exhibit 1, T Documents, T8, page 115, Disability Support Pension Claim, received 6
September 2016.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP certain relevant criteria set out in section 94 of the Act, must be met:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[7] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[8]
[7] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[8] 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) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)

(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[9] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]
[9]         Impairment Determination, s 5(1) – (2).
[10]        Impairment Determination, s 5(2).
[11]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[12]
[12] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider 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 is planned in the next two years.[13]
[13] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(d)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
(e)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.[14]
[14] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[15]
[15] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[16]
[16] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more are under a single Impairment Table.[17]
[17] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from Mental Health, Sleep Apnoea, Ovarian Cyst, Diverticulitis, Thyroid, Spinal and Arthritic conditions and it is not in dispute that she has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period. The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[18] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[18] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Mental Health Condition
The Tribunal has had regard to the material before it and the evidence provided from the Applicant herself at the hearing regarding her Mental Health conditions. These conditions have seemingly been induced by her long history of difficult personal circumstances and travails which she has outlined in her evidence to both this Tribunal and the previous reviewing authorities.
The Tribunal accepts the Respondent’s concession based on medical evidence that the Applicant is suffering from the following conditions[19]:
(a)stress-related Anxiety;[20]
(b)Depression and Psychosis;[21]
(c)General Anxiety Disorder;[22]
(d)Panic Disorder;[23]
(e)Post-Traumatic Stress Disorder;[24] and
(f)Acopia and grief reaction.[25]
[19]        Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, dated 6 February
2018.
[20]        Exhibit 1, T Documents, T15, page 164, Letter from Ms Chris G’Froerer, dated 16
November 2011; T30, page 195, Medical Certificate from Dr Sandra Lok, dated 5 February 2016.
[21]        Exhibit 1, T Documents, T18, page 168, Medical Certificate from Dr Renu John, dated 7
March 2013.
[22]        Exhibit 1, T Documents, T21, page 173, Letter from Registered Psychologist, Ms Gillian
Yee to Dr J Ku, dated 5 February 2014; T22, page 174, Medical Certificate from Dr Sandra Lok, dated 24 June 2014; T23, Medical Certificate from Dr Sandra Lok, dated 24 June 2014; T24, Medical Report from Dr Sandra Lok, dated 23 September 2014; T25, page 177, Referral Letter from Dr Carina Limgenco to Mr David Salgado, dated 9 February 2015; T28, pages 183 – 193, Medical Report from Dr Carina Limgenco, dated 11 February 2015.
[23]        Exhibit 1, T Documents, T21, page 173, Letter from Registered Psychologist, Ms Gillian
Yee to Dr J Ku, dated 5 February 2014.
[24]        Exhibit 1, T Documents, T21, page 173, Letter from Registered Psychologist, Ms Gillian
Yee to Dr J Ku, dated 5 February 2014; T28, pages 183 – 193, Medical Report from Dr Carina Limgenco, dated 11 February 2015.
[25]        Exhibit 1, T Documents, T29, page 194, Medical Certificate from Dr Gouthami
Sunkanapally, dated 4 January 2016; T40, page 217, Medical Certificate from Dr Gouthami Sunkanapally, dated 18 October 2016; T43, page 214, Medical Certificate from Dr Gouthami Sunkanpally, dated 6 December 2016.
However, the Respondent contends that the Applicant’s Mental Health conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and are unable to be assigned an Impairment Rating under Table 5 of the Impairment Tables. The issue this Tribunal has is that the Applicant’s medical evidence was largely produced before the Relevant Period and indicates that the Applicant’s mental health condition was not permanent.
In October 2016, the Applicant received a referral to a registered psychologist.[26] A letter from Ms Karina Wegner dated 5 May 2017 notes that she had been seeing the Applicant since 8 November 2016 for extremely severe depression, anxiety and severe stress.[27] Although the Tribunal can consider the letter from Ms Wegner as being referable to the Relevant Period, the Tribunal is cognisant that the Introduction to Table 5 states that the diagnosis of a Mental Health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).[28] There is no evidence before this Tribunal that indicates that the Applicant has been diagnosed with a Mental Health condition from a psychiatrist or clinical psychologist during the Relevant Period.
[26]        Exhibit 1, T Documents, T41, pages 208 - 209, Referral from Dr Gouthami Sunkanapally to
Ms Karina Wegner, dated 21 October 2016.
[27]        Exhibit 4, Letter from Ms Karina Wegner, dated 5 May 2017.
[28]        Impairment Determination, Part 3.
Further, the letter from Ms Wegner does not provide a diagnosis of the Applicant’s conditions in the Relevant Period.[29] At the hearing, the Applicant also gave evidence that she had seen Ms Weinstein, a registered psychologist, but was unsure of when the appointment had taken place. The Tribunal notes that, consistent with the evidence the Applicant gave at hearing, the Applicant had a referral to see Ms Weinstein and it would be reasonable to infer that the consultation with Ms Weinstein took place sometime in 2016.[30]
[29]        Exhibit 4, Letter from Ms Karina Wegner, dated 5 May 2017.
[30]        Exhibit 1, T Documents, T31, page 196, Referral from Dr Carina Limgenco to Ms
Weinstein, dated 8 February 2016.
Table 5 of the Impairment Determination sets out the appropriate assessment criteria for rating functional impairment where: “the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment)”.[31]
[31] Impairment Determination, Part 3, Table 5 Introduction.
The situation remains however, that the Applicant has not presented to this Tribunal any material applicable to her Mental Health conditions which relates to the Relevant Period to which this review is confined. The only evidence before this Tribunal is a letter from a clinical psychologist, Mr David Salgado from March 2015.[32] This is some 18 months prior to the Applicant’s claim and indicates quite clearly that:
·the Applicant had only two recent sessions with him;
·Mr Salgado was not in a ‘position to confirm any diagnosis’;
·the Applicant was ‘only at the beginnings of her treatment’;
·Mr Salgado could not confirm that the Applicant’s condition was ‘fully stabilised’;
·Mr Salgado recommended that the Applicant complete a sequence of regular therapy contact with him over the medium to long term; and
·the Applicant was ‘someone who is capable of engaging in paid work and who has the potential to be a valuable employee’ and that ‘[she] might respond well to ongoing psychological treatment and support’.
[32] Exhibit 1, T Documents, T26, page 181, Letter from Mr David Salgado, dated 31 March
2015.
There is no medical evidence from either a psychiatrist or a clinical psychologist during the Relevant Period to suggest that the Applicant had been diagnosed with a Mental Health condition or therefore, that such conditions had been fully treated or fully stabilised at the Relevant Period. I find that the Applicant’s mental health conditions were not fully diagnosed, fully treated or fully stabilised. Therefore, I am unable to assign the conditions an Impairment Rating under Table 5 of the Impairment Determination.
Severe Obstructive Sleep Apnoea Condition
The Applicant was referred to Healthy Sleep Solutions for her sleep apnoea condition in July 2016.[33] The Tribunal notes that the Respondent has helpfully set out and contended in its Statement of Issues, Facts and Contentions that a respiratory and sleep medicine physician, Dr George Hamor, diagnosed the Applicant with severe obstructive sleep apnoea within the Relevant Period.[34] As such I am satisfied that the condition is fully diagnosed.
[33] Exhibit 1, T Documents, T34, page 199, Referral from Dr Gouthami Sunkanpally to Healthy
Sleep Solutions, dated 1 July 2016.
[34] Exhibit 1, T Documents, T42, page 210, Sleep Report completed by Dr George Hamor,
dated 2 November 2016; Exhibit 2, Respondent’s Statement of Issues, Facts and
Contentions, dated 6 February 2018.
Dr Hamor’s report indicated that further treatment was required.[35] He recommended that the Applicant undertake a specialist supervised CPAP therapy, implement weight reduction strategies and avoid driving a motor vehicle until the condition was assessed and controlled.[36] The Applicant stated at the hearing that she is using the CPAP machine at night, but says that it can be uncomfortable and causes “bloating” on some occasions.
[35] Exhibit 5, Sleep Report by Dr George Hamor, dated 2 November 2016.
[36] Exhibit 5, Sleep Report by Dr George Hamor, dated 2 November 2016.
While the Applicant has self-reported to this Tribunal that she has commenced CPAP therapy, evidence has not been provided by an appropriately qualified medical practitioner, addressing whether this treatment has led to the stabilisation of her condition. Dr Hamor recommended that such treatment be pursued under the supervision of a sleep physician, however, no report addressing this has been offered for my consideration.
On this basis it is clear that during the Relevant Period, the Applicant’s sleep apnoea condition was not fully treated and fully stabilised and as such I am unable to assign the condition an Impairment Rating under Table 1 of the Impairment Determination.
Other Conditions
The Applicant had listed a number of other conditions that she wanted to be considered for her DSP application. For each of these conditions the Respondent conceded that they were fully diagnosed, but contended that they were not fully treated and fully stabilised.[37] I will address each of these conditions in turn.
[37] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, at [38], dated 6
February 2018.
Ovarian Cyst Condition

The Applicant provided limited medical evidence regarding her Ovarian Cyst condition. Various referral letters from the Applicant’s General Practitioner at the Thornlie Medical Centre and a referral from Fraser Shores Medical Centre make reference to the Applicant’s left ovarian cyst condition, with date of onset being 2011 or 2012.[38] Based on these referrals, the Respondent has contended that although the condition is fully diagnosed, there is insufficient corroborating medical evidence to ascertain whether these conditions were fully treated and fully stabilised at the Relevant Period. The Applicant has not provided any medical information in relation to treatment or the impact of this condition. As such I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
[38] Exhibit 1, T Documents, T20, pages 171-172, Referral from Dr John Ku to Cannington
Physiotherapy, dated 27 August 2013; T25, page 177, Referral from Dr Carina Limgenco to Mr David Salgado, dated 9 February 2015; T34, page 199, Referral from Dr Gouthami Sunkanapally to Healthy Sleep Solutions, dated 1 July 2016; T37, page 204, Referral from Dr Sandra Lok to Thornlie Leisure World, dated 30 September 2016; T38, page 205, Referral from Dr Sandra Lok to Thornlie Physiotherapist Centre, dated 30 September 2016; T39, page 206, Referral from Dr Lok to Diet by D’zyne, dated 30 September 2016; T41 pages 208-209, Referral from Dr Gouthami Sunkanapally to Ms Karina Wegner, dated 21 October 2016.
Diverticulitis Condition
Like the Applicant’s Ovarian Cyst condition, the Applicant’s Diverticulitis condition was also listed in her past medical history from Thornlie Medical Centre and the Respondent considers that the condition is fully diagnosed.[39] The issue that arises is that there is insufficient corroborating medical evidence before me to determine whether the condition was fully treated and fully stabilised during the Relevant Period. Consequently, I am unable to assign an Impairment Rating to this condition.
[39] Exhibit 1, T Documents, T25, page 177, Referral from Dr Carina Limgenco to Mr David
Salgado, dated 9 February 2015; T31, page 196, Referral from Dr Carina Limgenco to Ms Stacey Weinstein, dated 8 February 2016; Exhibit 2, page 8, para 38, Secretary’s Statement of Issues, Facts and Contentions, dated 6 February 2018.
Hypothyroidism Condition
Mr Salgado, who had only seen the Applicant on two occasions, mentioned in a letter addressed to Centrelink that the Applicant had an underactive thyroid.[40] Even though I believe Mr Salgado was not attempting to diagnose the Applicant with this condition, the diagnosis of such a condition must be made by an appropriately qualified medical practitioner.[41] The Applicant does have history of a Hypothyroid condition which is noted on referral letters from General Practitioners.[42] Further, when the Applicant was reviewed by a consultant in Arthritis and Rheumatic diseases in March 2017, additional investigations were organised, including a pathology test of her thyroid to be sent to her General Practitioner and a further review of the Applicant in four months’ time.[43] This testing, however, falls outside of the Relevant Period and indicates that further investigation of the Applicant’s thyroid was taking place. There is insufficient medical evidence before this Tribunal to establish that the Applicant’s thyroid condition was fully treated and fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
[40]        Exhibit 1, T Documents, T26, page 181, Letter from Mr David Salgado to Centrelink, dated
31 March 2015.
[41]        Impairment Determination, Part 1, s 3.
[42]        Exhibit 1, T Documents, T34, page 199, Referral from Dr Gouthami Sunkanapally to
Healthy Sleep Solutions, dated 1 July 2016; T41, pages 208-209, Referral from Dr Gouthami Sunkanapally to Ms Karina Wegner, dated 21 October 2016.
[43]        Exhibit 1, T Documents, T44, page 218, Review and Letter to Dr Gouthami Sunkanapally
from Dr Alexander C Klestov, dated 1 March 2017.
Chronic Back Pain, Sciatica and Sacroiliitis Conditions
I will deal with these stated conditions together as these conditions relate to the spine. In a Medical Certificate dated 5 February 2016, Dr Lok indicated that the Applicant had been experiencing Sacroilitis since 5 September 2014, but that the condition was temporary and the Applicant would be reviewed by a Rheumatologist.[44] The JCA reported in June 2016 that on 22 January 2016 and 8 July 2016 there were appointment notices, however, it appears on the evidence available that the Applicant saw the Rheumatologist outside of the Relevant Period, in 2017.[45]
[44] Exhibit 1, T Documents, T30, page 195, Medical Certificate from Dr Sandra Lok, dated 5
February 2016.
[45] Exhibit 1, T Documents, T44, pages 216-218, Review and Letter to Dr Gouthami
Sunkanapally from Dr Alexander C Klestov, dated 1 March 2017.
In terms of the sciatica condition, the Applicant had only made mention of this condition to the JCA on 8 April 2015, but provided no medical evidence to support the diagnosis of this condition.[46]
[46] Exhibit 1, T Documents, T5, page 72, Job Capacity Assessment Report, dated 8 April
2015.
The Applicant received a referral for a Physiotherapist in August 2013 for
[47]        Exhibit 1, T Documents, T20, page 171, Referral from Dr J Ku to Cannington
Physiotherapy, dated 27 August 2013.
[48]        Exhibit 1, T Documents, T29, page 194, Medical Certificate from Dr Gouthami
Sunkanapally, dated 4 January 2016.
[49]        Exhibit 1, T Documents, T38, page 205, Referral from Dr Sandra Lok to Thornlie
Physiotherapist Centre, dated 30 September 2016.
[50]        Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, at [41], dated 6
February 2018.
“Tight R infraspinatus/teresmm (sic), levator scapulae”.[47] Subsequent to this, the Applicant received a Medical Certificate that listed temporary back pain.[48] The Applicant was provided with a referral to Thornlie Physiotherapist Centre in September 2016 for chronic back pain.[49] The Respondent accepts that these conditions have been fully diagnosed, however, contends that they have not been fully treated and fully stabilised.[50] Based on the evidence before me, it is difficult to ascertain if the conditions were fully diagnosed in the Relevant Period, however, that is to a large extent irrelevant. As the Applicant has provided insufficient information regarding the treatment for these conditions during the Relevant Period and I am not satisfied that these conditions were fully treated and fully stabilised during the Relevant Period. Consequently, I am unable to assign an Impairment Rating to these conditions.
Ankylosing Spondylitis, Osteoarthritis and Foot Pain Conditions
I will deal with these conditions together as the Applicant was reviewed by Dr Klestov, a consultant in Arthritis and Rheumatic diseases in 2017 for lumbar spine, thoracic spinal, cervical spinal, right shoulder, right suprascapular region and right heel pains.[51] Prior to this, the Applicant had received a Medical Certificate that listed temporary foot pain and a Medical Certificate that listed “OA, lower back pain” that was considered stabilised.[52] On examination of the Applicant, Dr Klestov noted that her: right heel was tender “on deep palpation” and her spine had 90 per cent range of movement with normal chest expansion.[53] Dr Klestov had suggested that the Applicant’s presentation could be indicative of ‘Polyarthropathy/tendonitis’ but wanted to review the Applicant in four and six months as test results had been ordered.[54] Further to this the Applicant submitted a further referral to a Rheumatologist dated 7 August 2017.[55]
[51]        Exhibit 1, T Documents, T44, page 216, Review and Letter to Dr Gouthami Sunkanapally
from Dr Alexander C Klestov, dated 1 March 2017.
[52]        Exhibit 1, T Documents, T29, page 194, Medical Certificate from Dr Gouthami
Sunkanapally, dated 4 January 2016; T40, page 207, Medical Certificate from Dr Gouthami Sunkanapally, dated 18 October 2016.
[53]        Exhibit 1, T Documents, T44, page 218, Review and Letter to Dr Gouthami Sunkanapally
from Dr Alexander C Klestov, dated 1 March 2017.
[54]        Exhibit 1, T Documents, T44, pages 216-218, Review and Letter to Dr Gouthami
Sunkanapally from Dr Alexander CKlestov, dated 1 March 2017; T46, page 220, Review and Letter to Dr Gouthami Sunkanapally from Dr Alexander C Klestov, dated 28 April 2018.
[55]        Exhibit 1, T Documents, T50, page 230, Referral from Dr Thamara Balasuriya
Mudiyanselage to Hedland Health Campus Outpatients/Rheumatologist, dated 7 August 2017.
The Applicant also received a referral to Thornlie Leisure World for her Ankylosing Spondylitis and chronic back pain.[56] No further documentation relating to this referral was provided in support of the application.
[56] Exhibit 1, T Documents, T37, page 204, Referral from Dr Sandra Lok to Thornlie Leisure
World, dated 30 September 2016.
The Applicant relied on the evidence previously provided to the first tier review for her spinal and arthritic conditions but was unable to provide any further evidence about these conditions to assist this Tribunal. However, the Applicant did confirm that she is attending informal hydrotherapy sessions and is practising physiotherapy exercises set by her daughter who is a registered nurse.
Given the paucity of medical evidence before this Tribunal regarding the treatment of the Applicant’s spinal and arthritic conditions, it is not possible to consider these conditions as fully treated and fully stabilised. Consequently, I am unable to assign an Impairment Rating to the thyroid, spinal or arthritic conditions.
CONCLUSION
On the basis of the evidence before me, I am not satisfied that the Applicant’s impairments were fully treated and fully stabilised during the Relevant Period.
Therefore, I am unable to assign the Applicant any Impairment Rating Points under the Impairment Tables and as a consequence, the Applicant does not satisfy the requirement under section 94(1)(b) of the Act. Given this conclusion, it was not necessary for me to consider whether the Applicant had a continuing inability to work.
DECISION
For the reasons I have set out above, the decision under review is affirmed.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

............................[Sgd]............................................
Associate
Dated: 31 May 2018

Date of hearing: 16 March 2018

Applicant: In person

Advocate for the Respondent: Julia Driver

Solicitors for the Respondent: Department of Human Services

[2018] AATA 1461

31 May 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Standing

Statutory Construction

Date of hearing:	16 March 2018
Applicant:	In person
Advocate for the Respondent:	Julia Driver
Solicitors for the Respondent:	Department of Human Services