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

Finch and Secretary, Department of Social Services (Social services second review) [2021] AATA 2808 (12 August 2021)
Division:GENERAL DIVISION
File Number:2020/6275
Re:Andrew Finch
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:12 August 2021
Place:Brisbane

The decision under review is affirmed.
.....................[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
12 August 2021
INTRODUCTION

On 25 November 2019, Mr Andrew Finch (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: [2]
[1] Exhibit 1, T Documents, T10, pages 101-112, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T10, pages 103-104, Claim for Disability Support Pension.
·Back and neck injury
·C4 causing numbness on left hand and arm
·Radiating pain and lack of movement right ankle
·Peripheral neuropathy
·Restless legs and spasms
·Type 2 diabetes
·Post-cholecystectomy syndrome
·Hypertension
·PTSD, anxiety and depression
·Sleep apnoea
The Applicant’s claim was rejected on 14 December 2019,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T15, pages 124-125, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and on 19 May 2020 an Authorised Review Officer (ARO) affirmed the decision.[4] The ARO found that:[5]
·the Applicant’s conditions of spinal injury C5/C6, diabetes type 2, high blood pressure and testosterone deficiency were not permanent as they had not been fully treated and fully stabilised;
·the Applicants radicular back pain, sleep apnoea and post-traumatic stress disorder were not permanent as they had not been fully diagnosed, fully treated and fully stabilised; and
·that the Applicant did not have an impairment rating of 20 points or more.
[4] Exhibit 1, T Documents, T39, pages 168-174, Authorised Review Officer Decision and Notes.
[5] Exhibit 1, T Documents, T39, page 170, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[6] On 16 September 2020, the SSCSD affirmed the decision[7] finding that the Applicant’s conditions could not be assigned impairment ratings as: [8]
·his spinal condition and diabetes were not fully treated and fully stabilised;
·there was no evidence that his sleep apnoea was causing any impairment;
·his PTSD had not been diagnosed by a psychiatrist or a clinical psychologist; and
·there was insufficient evidence that his other conditions were causing any current impairment.
[6]     Exhibit 1, T Documents, T42, pages 182-183, Request for statement.
[7]     Exhibit 1, T Documents, T2, pages 2-8, Decision of the SSCSD.
[8]     Exhibit 1, T Documents, T2, pages 2-8, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 12 October 2020.[9]
[9] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 3 March 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation. The Hearing was adjourned and the Applicant was provided with an opportunity to provide further evidence and submissions, he was also at that time seeking legal assistance. The Respondent was provided with an opportunity to provide written closing submissions.
On 21 June 2021, the Honourable Justice D G Thomas reconstituted the Tribunal[10] so that the matter would be determined by Member Mitchell.
[10]Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
On 12 July 2021, a Telephone Directions Hearing was held as a result of both the Applicant and Respondent providing submissions to the Tribunal and to determine whether the Hearing needed to be reconvened. The Applicant advised the Tribunal that he wanted the Tribunal to proceed to make a decision based on all the material that was before it, despite the fact that he was still liaising with Legal Aid Queensland. The Respondent agreed that the Tribunal should proceed to make a decision based on all of the material that was before it, including the transcript of the Hearing conducted on 3 March 2021.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[11]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[12] and
3.does the Applicant have a continuing inability to work?[13]
[11]    Section 94(1)(a) of the Act.
[12]    Section 94(1)(b) of the Act.
[13]    Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[14]
[14] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[15] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[15] Sections 6(3) and (4) of the Determination.
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:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next two years.[16]
[16] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[17]
(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.
[17]    Section 6(6) of the Determination.
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.[18]
[18] Section 6(7) of the Determination.
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 person’s condition can only be taken into account where there is corroborating evidence.[20]
[19] Section 6(2) of the Determination.
[20] Section 8(1) of the Determination.
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 (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; 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 POS within the next 2 years.
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.[21]
[21] Section 94(3B) of the Act.
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 become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[22]
[22] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
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 is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[23]
[23] 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
The Relevant Period in this matter commences on 25 November 2019, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 24 February 2020. 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
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.[24] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of a spinal disorder,[25] diabetes,[26] post-traumatic stress disorder (PTSD),[27] peripheral neuropathy, low testosterone, high blood pressure, right knee pain, foot and toe arthritis, TIA/brain function and sleep apnoea conditions.[28]
[24]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 35.
[25]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-9, paragraphs 38-48.
[26]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 49-50.
[27]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 51-53.
[28]    Respondent’s Closing Submissions, page 4, paragraph 26.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
EVIDENCE
The Tribunal has before it in this matter:
·Exhibit 1 – section 37 T Documents (pages 1-234)
·Exhibit 2 – Secretary’s Statement of Issues, Facts and Contentions dated 1 February 2021 (including attachments)
·Exhibit 3 - Letter from the Department of Transport and Main Roads dated 21 December 2020
·Exhibit 4 – Referral by Dr Michael Bryant dated 12 November 2020
·Exhibit 5 – Documents showing various wait times for surgeries
·Transcript of Proceedings – Hearing held on 3 March 2021
·Evidence submitted by the Applicant on 3, 12 and 24 March 2021
·Secretary’s Closing Submissions dated 16 April 2021
·Applicant’s Submissions dated 9 July 2021
Medical evidence
There are a number of medical reports before the Tribunal in relation to the Applicant’s conditions. It is clear to the Tribunal that the Applicant’s conditions result in him experiencing chronic pain and functional impairment.
The Applicant was involved in a motor vehicle accidence in 2012.[29]
[29] Exhibit 1, T Documents, T4, pages 88-93, Medical information of Toowoomba Hospital Emergency Department.
On 22 August 2019, the Applicant was referred to Dr Michael Bryant, neurosurgeon. The referral provided:[30]
Ch back pains – for abt 1 year. Getting worse. Pains lower neck rad to mid thoracic and pains R side of lumbar rad ant to hip joint. Also rad to R leg/ankle/foot. Hip pains and prone to ankle dislocations. Problems moving toe a few days ago. MRI neck and CT back attached. Diabetic – not well controlled. Please consult for opinion/further Mx.
[30] Exhibit 1, T Documents, T5, pages 94-96, Referral to Dr Bryant.
The MRI of the Applicant’s cervical spine in August 2019, attached to the referral showed exaggerated lordosis.[31]
[31] Exhibit 1, T Documents, T5, page 94, Referral to Dr Bryant.
In a report dated 12 September 2019, Dr Matthew Balcerek on behalf of Dr Chellamuthu Chandrasekar, endocrinologist provided that after reviewing the Applicant the treatment plan included a change to his medication, referral to the Statewide Bariatric Surgery Institute and the diabetic educator and further review in 3 months.[32]
[32] Extract of Report of Dr Matthew Balcerek on behalf of Dr Chellamuthu Chandrasekar provided by the Applicant on 12 March 2021.
On 14 November 2019, the Applicant was advised that his referral to the Rheumatology Clinic at the Sunshine Coast Hospital and Health Service (Sunshine Coast Hospital) had been received and that he would be offered an appointment when one became available.[33]
[33] Exhibit 1, T Documents, T6, page 97, Letter form Sunshine Coast Hospital Rheumatology Clinic: Referral Accepted.
On 19 November 2019, the Applicant was advised that his referral to the NMH Persistent Pain Management Service Pain 101 Clinic had been received and that further information was being sought from his general practitioner, Dr Dana Alexandrescu.[34]
[34] Exhibit 1, T Documents, T7, page 98, Letter form Sunshine coast Hospital Persistent Pain Management Clinic: Further information required.
In a Centrelink Medical Certificate dated 21 November 2019, Dr Alexandrescu, general practitioner provided that:[35]
·The Applicant’s radicular back pain was temporary, worse with sitting and walking, caused restless legs and shakes - tremors, interfered with his daily life/ability to perform his regular job. He had been referred to rheumatology for further diagnosis as bloods and imaging were not diagnostic. Past and current treatment was listed as multiple analgesias – currently on norspan patches with planned treatment listed as: “referred to rheumatology and pain medicine clinic”. Prognosis was uncertain.
·The Applicant’s type 2 diabetes was a temporary exacerbation of a permanent condition with symptoms including peripheral neuropathy, prone to severe infections, has had to start using glasses – informed by optometrist due to diabetes, referred to diabetes clinic as was not well controlled, awaiting bariatric surgery, difficulty controlling when pain is worse. Past and current treatment was listed as “on oral agents and following up with diabetes clinic, podiatry and optometrist referral will be done, has had ref dietician and diabetic educator with sunshine coast uni hospital”. Planned treatment included “follow up with diabetic clinic and GP practice planning diabetes care plan for allied health referral.” Prognosis was more than 24 months.
·The Applicant’s low testosterone which affects his mood and PSTD history also impacts on his capacity to work or study.
·Factors that may impact on the Applicant’s participation to prepare for return to work or study were back pain and difficulty controlling diabetes.
[35] Exhibit 1, T Documents, T9, page 100, Medical certificate of Dr Alexandrescu.
In a report dated 2 December 2019, Dr Michael Bryant from the Sunshine Coast Brain and Spine Clinic provided the following assessment and treatment plan:[36]
I suspect [the Applicant] actually has a double crush problem affecting his upper limb. He probably has C6 nerve root compression in the cervical spine but probably also has an ulnar nerve problem at the level of the elbow.
The pains down the leg have yet to be investigated appropriately and I provided [the Applicant] with a request for an MRI scan to be performed.
Thereafter, [the Applicant] is going to need a referral over to the Sunshine Coast University Hospital for review.
[36] Exhibit 1, T Documents, T13, pages 116-117, Report of Dr Bryant and referral to Dr Navalgund.
Dr Bryant also provided a referral to Dr Vasudev Navalgund at the Sunshine Coast Hospital dated 2 December 2019. In the referral Dr Bryant advised that the Applicant had left-sided C6 compression and also problems with his lumbar spine and is likely to need surgery moving forward.[37]
[37] Exhibit 1, T Documents, T13, page 118, Referral to Dr Navalgund.
On 17 December 2019, the Applicant underwent an MRI of his lumbar spine which showed “essentially normal MRI lumbar spine with no canal stenosis and no foraminal stenosis”.[38]
[38] Exhibit 1, T Documents, T18, page 138, Radiology report - MRI lumbar spine.
On 17 December 2019, the Applicant also underwent an NM Bone Scan which showed “minor arthritic changes in the shoulders and knees but no focal abnormality is seen in the cervical or lumbar spine. No other significant pathology is seen.”[39]
[39] Exhibit 1, T Documents, T18, page 139, Radiology report – MRI lumbar spine.
In a report dated 29 December 2019 by Dr Balcerek on behalf of Dr Chandrasekar it was noted that the Applicant had reduced his weight which had positive effects on his diabetes and that his biggest concern was his severe neck pain. The treatment plan included continuing with the current regimen, pending bariatric appointment, “with ongoing weight loss and reduced insulin resistance, his glycaemic control should improve and he may be able to even down titrate his insulin,” further tests in relation to thyroid function and further review in 6 months time.[40]
[40] Report of Dr Matthew Balcerek on behalf of Dr Chellamuthu Chandrasekar provided by the Applicant on 12 March 2021

Following the MRI and Bone Scan, Dr Bryant reported on 8 January 2020 he had not been able to find a cause of the pains down the Applicant’s legs. Dr Bryant reported that the Applicant’s cervical disc pathology would need to be addressed through the public system and he was still awaiting review with Dr Navalgund. Dr Bryant recommended that in the meantime it may be worthwhile to get the Applicant in to see a pain doctor privately while he awaits review in the Nambour Pain Clinic.[41] Dr Bryant provided a referral for the Applicant to be seen by Dr Khaldoon Alsaee at the Cooinda Clinic for pain management.[42]
[41] Exhibit 1, T Documents, T21, page 143, Report of Dr Bryant.
[42] Exhibit 1, T Documents, T22, page 144, Referral to Dr Alsaee.
In a Centrelink Medical Certificate dated 17 January 2020, Dr Alexandrescu reported no change to the Applicant’s conditions to that listed in the certificate dated 21 November 2019 (as set out at paragraph 33 above).[43]
[43] Exhibit 1, T Documents, T24, page147, Medical certificate of Dr Alexandrescu.
On 17 January 2020, Dr Alexandrescu referred the Applicant to a physiotherapist.[44] The Applicant attended a physiotherapy appointment on 22 January 2021.[45]
[44] Exhibit 1, T Documents, T25, page148, Referral to Ms Anderson.
[45] Exhibit 1, T Documents, T26, page 149, Brightwater Physiotherapy invoice.
On 23 January 2020, the Applicant was referred to Dr David Johnson, neurosurgeon, seeking opinion on further management of his persistent back pains from neck to lumbosacral spine which was not improving with current management.[46]
[46] Exhibit 1, T Documents, T27, page 150, Referral to Dr Johnson.
On 26 February 2020, Dr Bryant reported to Dr Navalgund further to his previous referral that:[47]
[47] Exhibit 1, T Documents, T32, page 157, Incomplete report of Dr Bryant.
·The Applicant developed significant problems with his neck and back after a motor vehicle accident in 2012 and was left with musculoskeletal pains and radiculopathies ever since.
·The Applicant’s pain had become significantly more problematic in the previous 18 months.
·The Applicant describes pains through the region of his left shoulder and down into his biceps and experiences numbness in his thumb on his left-hand as well as sensation changes on the contralateral aspect of his left arm in the ring and little finger.
·The Applicant had an injection based on an MRI scan up into his neck but it only provided very short-term improvement of his discomforts.
·The Applicant experiences significant pains in his back and down into his right buttock.
·The Applicant has taken various different pain medications to keep his pains under control.
·The Applicant was no longer able to work as a driving instructor because he cannot sit for extended periods of time.
·Chiropractic treatment only provided shot-term relief for the Applicant.
·The Applicant is diabetic and is due to have bariatric surgery.
On 18 March 2020, the Applicant was advised by the Sunshine Coast Hospital that his referral to the Orthopaedics General Clinic by Dr Bryant had been upgraded to a category 2 and he would be offered an appointment as soon as one became available.[48]
[48] Exhibit 1, T Documents, T34, page 162, Letter from Sunshine Coast Hospital Orthopaedics clinic: Referral category upgraded.
In a Centrelink Medical Certificate dated 9 April 2020, Dr Alexandrescu reported no change to the Applicant’s conditions to that listed in the certificates dated 21 November 2019 and 17 January 2020 (as set out at paragraphs 33 and 40 above).[49]
[49] Exhibit 1, T Documents, T36, page 164, Medical certificate of Dr Alexandrescu.
In a letter dated 24 April 2020, Dr Alexandrescu reported that the Applicant:[50]
·Had been a patient of the medical practice from 12 March 2019.
·Has “multiple medical conditions, injuries and chronic pain which he is currently receiving treatment for and are stabilised but as of November 2019 are expected to restrict him from working for at least the next 2 years.”
·Has chronic pain with acute exacerbations due to a spinal injury C5/6 vertebrae cause significant mobility restrictions. In relation to treatment, he has been referred to an orthopaedic surgeon, chronic pain clinic and rheumatology clinic and is on the public waiting list as a category 2, been prescribed Norspan patches and rest and has undertaken physiotherapy and hydrotherapy.
·Has type 2 diabetes and has been referred to a diabetes clinic/endocrinologist, is on the bariatric surgery waiting list and has been prescribed NoVo rapid and lantis insulin and jardience and metformin tablets. Peripheral neuropathy is listed as a complication from the condition.
·Has high blood pressure that is treated with medication.
·Has post-traumatic stress disorder that has been treated with medication.
·Has testosterone deficiency which has been treated with injections.
·Has sleep apnoea for which he had surgery in 2009 to remove his tonsils to open his airways.
[50] Exhibit 1, T Documents, T38, pages 166-167, Report of Dr Alexandrescu.
In a report dated 30 June 2020, Dr Chandrasekar reported that he had seen the Applicant for review of sub-optimally controlled diabetes as well as hypogonadism. Dr Chandrasekar noted that the Applicant had been on testosterone for two years at least and had symptoms of low testosterone for 12 months prior to that, he recommended that the Applicant would benefit from testosterone and that it was possible that with weight loss and the requirement for less painkillers his testosterone levels may improve spontaneously. Dr Chandrasekar also increased the Applicant’s diabetes medication.[51]
[51] Report of Dr Chellamuthu Chandrasekar provided by the Applicant on 12 March 2021.
On 20 July 2020, Dr Peter Patrikios as a result of a sensory nerve conduction study[52] reported:[53]
The findings are consistent with a severe, length-dependent, sensory peripheral neuropathy.
There is a mild left ulnar neuropathy at the level of the elbow.
There are mild bilateral superimposed median neuropathies at the level of the wrists. This can be seen in carpal tunnel syndrome in the appropriate clinical setting.
[52] Exhibit 1, T Documents, T45, page 186, Sunshine Coast Hospital clinical neurophysiology findings.
[53] Exhibit 1, T Documents, T44, page 185, Incomplete report of Dr Patrikios.
In a Centrelink Medical Certificate dated 24 July 2020, Dr Alexandrescu reported no change to the Applicant’s conditions to that listed in the certificates dated 21 November 2019, 17 January 2020 and 24 July 2020 (as set out at paragraphs 33, 40 and 45 above) other than to classify the Applicant’s radicular back pain as permanent (likely to persist for 2 years or more) and provided a prognosis that the condition would affect the Applicant’s capacity to work or study for more than 24 months.[54]
[54] Exhibit 1, T Documents, T46, page 187, Medical certificate of Dr Alexandrescu.
On 30 July 2020, Dr David Johnson, orthopaedic surgeon reported:[55]
·The Applicant suffered chronic pain related to his neck and lumbar spine causing neck pain, left brachialgia and bilateral lower limb pain, as well as likely right L5 radicular pain.
·The Applicant has evidence of severe sensory peripheral neuropathy, that is likely to be related to his poorly controlled diabetes.
·The Applicant has metabolic syndrome.
·The Applicant requires “a holistic management approach which not only includes the surgery but also effective postoperative rehabilitation which I’ve informed him about as well and provided contact referrals.”
·He talked to the Applicant about improving on his metabolic health and his peripheral neuropathy through optimal diabetic diet which includes low carbohydrate consumption and healthy fats which will help with his metabolic syndrome, weight loss, mental health and nerve health and also reduce his surgical risks.
·The Applicant is on a waiting list at the Sunshine Coast Hospital for surgical assessment.
·Surgery is unlikely to cure all of the Applicant’s problems given the multiple complexities of his chronic pain and poor metabolic health.
·The Applicant’s wife reported that he was not engaging in assisting himself.
[55] Exhibit 1, T Documents, T2, pages 36-37, Report of Dr Johnson.
In a response to a Basic Rights Queensland Treating Health Professional Request for Information dated 4 August 2020, Dr Alexandrescu provided that the Applicant’s following conditions were fully diagnosed, fully treated and fully stabilised and that further treatment was unlikely to result in significant functional improvement to a level enabling him to undertake work in the next 2 years:[56]
·Advanced peripheral neuropathy, having been diagnosed on 21 July 2020 when he had nerve conduction studies. This condition was a result of the Applicant’s poorly controlled and managed diabetes and that all treatments had been undertaken, including medication, diet, specialist reviews, neurology, podiatrist, diabetes educators and dietician.
·Chronic pain related to neck and lumbar spine, left brachialgia and right L5 radicular pain, having been diagnosed by her on 12 March 2019 and by Dr Johnson on 30 July 2020. All treatment had been undertaken including analgesia, MRI guided cortisone injections, physiotherapy, chiropractor and hydrotherapy. The Applicant was still awaiting surgery, however surgery is unlikely to completely cure his condition.
·These conditions alone would have prevented the Applicant from sustaining work of 15 hours pers week in any job or undertaking study or participating in a program of support from 12 March 2019 as the Applicant’s chronic pain interferes with his daily functioning and his peripheral neuropathy interferes with his ability to walk/mobile and use his hands.
·These conditions from 30 July 2019 could be assigned 10 points on Table 4 of the Impairment Tables relating to spinal function, 10 points on Table 2 of the Impairment Tables relating to upper limb function, 10 points on Table 3 of the Impairment Tables relating to lower limb function and 10 points on Table 7 of the Impairment Tables relating to brain function.
[56] Exhibit 1, T Documents, T2, pages 10-35, Basic Rights Queensland Health Professional Request for information completed by Dr Alexandrescu.
In a Centrelink Medical Certificate dated 19 October 2020, Dr Alexandrescu reported:[57]
·The Applicant’s radicular back pain condition was a temporary exacerbation of a permanent condition with a prognosis of more than 24 months. This condition resulted in back pain, difficulty walking/standing for prolonged periods of time – over 10 minutes, weakness in legs, neck pain, weakness in arms and intermittent numbness in arms/legs. Past and current treatment was multiple analgesias with planned treatment noting that referrals had been sent to the rheumatology and pain medicine clinics.
·The Applicant’s type 2 diabetes was a temporary exacerbation of a permanent condition with a prognosis of more than 24 months. This condition resulted in tiredness dizziness, numbness in hands/feet – peripheral neuropathy, renal dysfunction (kidney) and being prone to infections. Past and current treatment include oral agents and follow up with diabetes clinic, podiatry and optometrist referrals to be done and has had referral to dietician and diabetic educator with Sunshine Coast Hospital. Planned treatment included follow up with diabetic clinic and GP practice planning diabetes care plan for allied health referrals trying to lose weight and improve general health.
·The Applicant also experienced neck pain – radiculopathy to arm and testosterone deficiency which caused tiredness and lack of initiative.
[57] Exhibit 1, T Documents, T47, page 188, Medical certificate of Dr Alexandrescu.
On 27 October 2020, Dr Finch, spine and orthopaedic surgeon reported:[58]
The new MRI scans have shown that [the Applicant] certainly has significant foraminal narrowing at C5-C6 level and I think this is getting the C6 nerve roots bilaterally and I think this will respond nicely to an anterior cervical decompression and fusion.
…..
With respect to the rest of [the Applicant’s] MRI scan; the MRI scan of his right knee has shown that he may have some patellofemoral impingement or at least some wear and tear and of his right ankle there is an active subacute myositis around the posterior part of his ankle. I feel it is probably worthwhile referring him to the Public Hospital for this and I would be grateful for your consideration of referring him to a foot and ankle surgeon.
[58] Exhibit 1, T Documents, T48, page 189, Report of Dr Finch.
On 30 October 2020, the Applicant was referred to the Sunshine Coast Hospital for consultation relating to a possible TIA.[59]
[59] Exhibit 1, T Documents, T49, page 190, Referral to Sunshine Coast Hospital.
In the discharge letter from the Sunshine Coast Hospital dated 30 October 2020 the Applicant was diagnosed with having suffered a TIA and was advised by the stroke team to be started on Plavix and that they would organise for him to have an OPD MRI and would review him in the TIA clinic.[60]
[60] Exhibit 1, T Documents, T50, page 191, Report of Sunshine Coast Hospital – Emergency Department.
In a report dated 10 December 2020, Dr David Wong, neurologist, outlined that he saw the Applicant in the TIA Clinic at the Sunshine Coast Hospital and had changed his medication. Dr Wong provided:[61]
[The Applicant] has multiple vascular risk factors, including type 2 diabetes with poor glycaemic control, complicated by peripheral neuropathy confirmed on nerve conduction studies in July 2020. He had had a pervious C5/C6 paracentral disc bulge on MR neck for which he is fixated about getting an ECGF for.
I note that he had been seen by the Nambour Persistent Pain Management Service, although he had two DNAs and has been subsequently discharged.
[61] Report of Dr David Wong provided by the Applicant on 12 March 2021
In completing a Job Capacity Assessment (JCA) Report, the Assessor whose professional discipline is listed as a rehabilitation counsellor contacted Dr Alexandrescu on 20 January 2021. The Assessor recorded that in relation to the Applicant’s type 2 diabetes Dr Alexandrescu reported that the Applicant was still awaiting bariatric surgery as of 23 February 2020 and he was advised on 24 June 2020 that the surgery may help but possibly not make much difference. Dr Alexandrescu told the Assessor that the Applicant was advised that lifestyle management would be more important at this point and a follow up appointment was scheduled. The Assessor recorded that in relation to the Applicant’s spinal disorder, Dr Alexandrescu reported that she was not aware of changes to waitlist times as of 23 February 2020 and that while things have taken longer than normal they had restarted the list. Dr Alexandrescu advised that she anticipates that the Applicant would be seen within two years.[62]
[62] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, pages 1-2.
In the resulting JCA Report dated 21 January 2021, the Assessor found that the Applicant’s diabetes and spinal disorder conditions were fully diagnosed but not fully treated and fully stabilised during the Relevant Period.[63] In relation to the Applicant’s diabetes condition, the Assessor provided:[64]
As the condition has been diagnosed by a suitably qualified treating health professional it is considered fully diagnosed. Medical information relevant to the date of claim 25/11/2019 – 23/02/2020 indicates referral to dietitian, diabetic educator and bariatric surgery has been recommended. The condition is therefore considered permanent due to its chronic nature, however it is not considered fully treated and stabilised. These interventions including review with endocrinologist for optimal management would reasonably be expected to identify alternate treatments and improve level of functioning.
[63] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, pages 3-11.
[64] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, page 4.
In relation to the Applicant’s spinal disorder condition, the Assessor provided:[65]
As the condition has been diagnosed by a suitably qualified treating health professional it is considered fully diagnosed. Medical information relevant to the date of claim 25/11/2019 – 23/02/2020 indicates engagement in pain management has been recommended, referred to Orthopaedic Surgeon, Neurosurgeon. The condition is therefore considered permanent due to its chronic nature, however it is not considered fully treated and stabilised. This intervention would reasonably be expected to identify alternate treatments and improve level of functioning.
[65] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, pages 5-6
The Assessor also considered the Applicant’s PTSD condition and provided:[66]
As of the date of claim 25/11/2019 – 23/02/2020 there is insufficient evidence of diagnosis by a psychiatrist or clinical psychologist. There is insufficient evidence of engagement in treatment or prognosis. Further interventions such a psychiatry review, and counselling, may result in functional improvement within the next 24 months and/or a clearer picture regarding residual functional impacts following optimal treatment. The condition is therefore considered permanent due to its chronic nature, however it is not considered fully diagnosed, treated and stabilised.
Applicant’s evidence
[66] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B, page 6.
The Applicant gave evidence at Hearing under affirmation. The transcript indicates that he gave open responses to questions asked by both the Tribunal and Respondent and used his best endeavours to put forward his case.
At Hearing the Applicant told the Tribunal that:[67]
[67] Transcript, pages 9-40.
·He had, had several TIAs and initially when applying for DSP it was stabilised and treated however, in October 2020 he had another episode which had to be stabilised and treated further.
·The amount of TIAs he has had has not caused significant brain damage however it has slowed down his motor skills and thought process and has affected his emotional balance.
·He understood that for his PTSD condition to be considered it was required to be diagnosed by a clinical psychologist or psychiatrist and there was no evidence that had occurred before the Tribunal.
·His sleep apnoea condition was not relevant to his claim for DSP.
·His knee issue was relevant because he has injuries in the lower back, knee, ankle and leg and he has peripheral neuropathy.
·He has times where he can be standing and then his leg will go and he will fall over for no reason.
·He has a C5-C6 cervical spine injury.
·He had still not been seen by a rheumatologist or the pain specialist – he had been a category 2 since the beginning of his claim.
·Dr Bryant and Dr Alexandrescu had both treated and stabilised his spine condition, however Dr Bryant is in private practice and the operation that was suggested costs approximately $70,000, so he was referred to the public system for assessment and treatment with the possibility of surgery. He was told that the surgery would take away some of the acute pain but would not actually be a cure-all.
·He has seen two other specialists and the only option left for some relief is the surgery.
·When he applied for DSP his spine condition was stabilised and treated, since November 2019 his treatment plan and pain management has not changed.
·When he saw Dr Johnson, he did not have the evidence with him to show him that his diabetes was totally under control and the diabetes clinic at Caloundra Public Hospital has been keeping up with him and everything was going fine.
·He agreed that Dr Finch did say he thought he would respond nicely to the surgery because he has very little feeling in his fingers and hands and all sorts of pains and sensations in his left arm and shoulder.
·The C5-C6 operation will only cover the left side arm and nerve sensations.
·He is still on the waiting list for the surgery.
·The hospital waiting list timeframes are now horrendous due to COVID.
·Before he applied for the DSP he had been through all the different options of treatments and things that he could possibly do to get back to work, he was very eager to try and get back to work. After doing all the research and seeing his doctor, going through the pain management and seeing Dr Bryant, it was evident that it was not going to happen like he wanted it to. The other opinions he has had along the way from Dr Finch and Dr Johnson were on his request to make sure he had covered all bases.
·In relation to pain management he had not seen a specialist as he was managed through his general practitioner. The persistent pain management clinic (as a result of the referral made by Dr Alexandrescu) had been in contact with him and he had two phone meetings. It was decided that their services are meant for post-operative care, as recovery from operations and things like that. They actually thought because of where his pains and injuries are that it would not be beneficial for him to do the clinic because it involved things that would hurt or could cause more issues with his C5-C6 damage. They were confused as to why he was referred pre-operation.
·He thinks he had those phone meetings in December 2020.
·He saw a physiotherapist in the recovery unit of the Sunshine Coast Hospital for an assessment to determine whether he needed to see the surgeon. When he saw them in November 2020 it was decided he did need to go on and see Dr Navalgund in relation to surgery, because physiotherapy and rehabilitation would not be viable or feasible pre-op.
·The pain management Dr Alexandrescu was providing to him was medications.
·He did not see the pain specialist at the Buderim Private Hospital as he was not able to afford it.
·He had an initial appointment with Dr Navalgund at the Sunshine Coast Hospital about a week prior to the Hearing and he is now awaiting a further appointment to discuss the surgery as Dr Navalgund has asked that he have another MRI to see where the injury is presently at.
·His spinal condition is not going to improve, the only thing left apart from pain management is just release in his left arm, shoulder and the nerves.
·He believes that his peripheral neuropathy is not from his diabetes but is from the car accident.
·When referred to Dr Alexandrescu’s report from November 2019 where she says that his diabetes is causing his peripheral neuropathy, that when he discussed it further because he had been to the diabetes clinic, the endocrinologist said that his diabetes level was at a midlevel for an average person but for someone with chronic pain, it was actually quite an acceptable level.
·He saw the endocrinologist at the start of 2020 and stated that he can provide the reports.
·That in the responses provided by Dr Alexandrescu in the Basic Rights Queensland questionnaire where she said that his advanced peripheral neuropathy was diagnosed on 21 July 2020 and that his diabetes had not been well controlled, that was her opinion because of what his levels were at that point in time, but were based on a person without chronic pain. That is why he was referred to the endocrinologist.
·His diabetes medications had not changed at all.
·The Caloundra Diabetes Clinic gave him a certificate to say that his diabetes was controlled enough to have a driver’s licence.
·He had applied for bariatric surgery but by the time he went to the Royal Brisbane Hospital to go through the final stages he no longer qualified because his body mass index was under the minimum requirement.
·His diabetes fluctuates based on his chronic pain that results from his neck. The higher the pain, the higher his blood sugar level gets.
·He agreed that the neck surgery may have an impact on his diabetic levels.
·He agreed that looking at the Relevant Period that his diabetes was described as not being well controlled by Dr Alexandrescu, but that was not his opinion or that of the endocrinologist. He believes that he was doing everything he could.
·He attributes the improvement to his diabetes that he told the SSCSD about was due to him eliminating sugars and monitoring the situation more. He started changing his mindset and being more vigilant at the start of 2019 prior to the injuries.
·If his sugar levels are not kept under around 10 it makes him very lethargic and mixed with his mobility and muscle strength issues can make it almost impossible for him to get out of bed.
·He finds that his diabetes level is actually stabilised but if he had days with chronic pain and things like that he knows to check his diabetes levels and see how they are going and make sure he does not have any adverse effects from that.
·He monitors his blood pressure as he has his own machine.
·He agreed that he was diagnosed with peripheral neuropathy in July 2020 after he had a nerve conduction study done at the Sunshine Coast Hospital.
·He understood that the diagnosis was after the Relevant Period.
·There is nothing that you can do for peripheral neuropathy, it is a permanent condition.
·He first noticed the peripheral neuropathy issues in September 2019. He had an episode which ended up being a TIA where his leg gave way and he collapsed on the floor and woke up two hours later and that is where all the severity has come from since then.
·The doctor doing the nerve condition study said the neuropathy could have been from the car accident because of the crushing of or damage to his nerve and that can do strange things. His accident happened in 2012, he had issues for a few months but then after that he did not really notice anything until 2019 when he started getting severe aches and pains.
·He is on a lot of medication.
·The endocrinologist has not changed the dosages of his medication.
·The peripheral neuropathy affects his arms, hand and fingers, the control and sensory type of thing and also his ankle and foot and right leg. Since being on the Cymbalta it has helped with his mobility.
·He has had to have an injection normally every two months for his testosterone deficiency. The condition made him have emotional ups and down and get tired and lethargic.
·He saw a specialist about 5 years ago in relation to his testosterone deficiency and the endocrinologist he sees for his diabetes has given him authority to get the testosterone injections on the PBS.
·His high blood pressure is affected by his pain levels, so he has to be vigilant to monitor it. It is as stable as it could possibly be.
·The tear in his right knee that was seen on the MRI has been referred to the orthopaedic team at the Sunshine Coast Hospital. It was first diagnosed by Dr Finch in October 2020.
·He agrees with Dr Alexandrescu’s assessment of his conditions in relation to the Impairment Tables.
CONTENTIONS
Applicant’s Contentions

The Applicant contended that his main issue was with his C5/C6 disc herniation and cervical radicular neuropathy and that they were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Applicant contended that:[68]
·The processing and triage of referrals as a public patient with spinal injuries at the Sunshine Coast Hospital results in an extremely long wait time.
·In the interim his general practitioner referred him to Dr Bryant for further review and suggestions of any other alternative treatment. Dr Bryant had no other diagnosis or treatment. He could not afford the disc fusion surgery as a private patient.
·Dr Bryant referred him for a nerve conduction study on his request which revealed as was diagnosed his general practitioner, radicular neuropathy and severe peripheral neuropathy. This information did not change the diagnosis or treatment for his pain by either his general practitioner or Dr Bryant.
·It is his belief that his radicular cervical pain, neuropathy and proven C5/C6 damage had been totally diagnosed, treated and stabilised with all treatment available to him within the 2 years from November 2019 to November 2021 and there was no possibility of substantial improvements to his health by November 2021.
[68] Submission filed by the Applicant on 9 July 2021.
The Applicant contended that the Respondent’s contention that he is not eligible for DSP because he had not had the surgery to fuse his C5/C6 discs to complete all diagnosis, treatment and stability requirements of his injury should be disregarded and special consideration be given for the following reasons:[69]
·The operation is elective surgery which may or may not reduce the severity of his acute pain, and may or may not assist in increasing the amount of sensory control/feelings he has in his left arm and fingers.
·According to Dr Bryant (neurosurgeon), Dr Johnson (neurosurgeon), Dr Finch (orthopaedic surgeon) and Dr Navalgund (orthopaedic surgeon) the surgery is not a permanent fix and would not likely give him a drastic enough improvement to be without chronic pain or have the capacity to work or retrain to work again.
·There is a risk of C4/C7 disc failure/damage in several years time caused from the increased wear/pressure a C5/C6 fusion puts on the surrounding discs deeming the fusion a temporary fix for acute pain relief.
·Despite being upgraded in category for surgical review it took him until February 2021 to be fully reviewed and put on the waiting list for the surgery.
·The wait time for his surgery will be long and is not even remotely close to being able to be performed within the 2 year period from November 2019 to November 2021.
[69] Submissions filed by the Applicant on 9 July 2021.
The Applicant contended that Dr Johnson was speculating when he addressed his diabetes as this is not his field of expertise. On the basis of his chronic pain, injury, stress, high blood pressure, infection, illness and stage 2 renal failure and his diabetes being only just outside what experts consider normal controlled levels and his medication had not been changed, the Applicant contends his diabetes was fully diagnosed, treated and stabilised. He contended that seeing the diabetes clinic and Dr Chandrasekar is for preventative measures and to make sure no future kidney or diabetic issues come up and his referral for bariatric surgery was at his request.[70]
Respondent’s Contentions
[70] Submissions filed by the Applicant on 9 July 2021.
The Respondent contended that the Applicant’s spinal disorder was fully diagnosed but was not fully treated and fully stabilised during the Relevant Period.[71] The Respondent contended that:[72]
[71] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 39-44.
[72] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraphs 39-41.
39. However, the Secretary contends that the Applicant’s spinal disorder was not fully treated and stabilised during the qualification period. As such, any impairments arising from this condition cannot be assigned an impairment rating. The Secretary relies on the following evidence:
(a) On 14 November 2019 the Applicant had his referral to the Sunshine Coast Hospital Rheumatology Clinic accepted (T6, 97).
(b) On 19 November 2019 the Nambour Hospital Persistent Pain Management Services Pain 101 Clinic acknowledged the referral from the Applicant’s GP Dr Alexandrescu but asked for more information (T7, 98)
(c) On 2 December 2019 Dr Bryant referred the Applicant to orthopaedic surgeon Dr Navalgund (T13, 118).
(d) On 8 January 2020 Dr Bryant wrote to Dr Alexandrescu and reported the Applicant’s cervical disc pathology will need to be addressed through the public system where he is awaiting review from orthopaedic surgeon Dr Navalgund (T21, 143). Dr Bryant also noted that it may be worthwhile for the Applicant to see a private pain doctor while he awaits review in the Nambour Pain Clinic.
(e) On that same day Dr Bryant referred the Applicant to pain specialist Dr Alsaee for some pain management strategies and advice on medication options moving forward (T22, 144).
(f) On 24 April 2020 Dr Alexandrescu reported the Applicant was on the public Queensland Health waiting list for orthopaedic surgeon, rheumatology clinic and chronic pain clinic (T38, 166-167).
(g) Dr Alexandrescu informed a Job Capacity Assessor (JCA) on 20 January 2021 that in her view there were no changes to waitlist times as of 23 February 2020 and anticipated the Applicant would be seen within two years (Attachment A).
(h) The JCA report concluded that the Applicant was still awaiting treatment from various specialists at the date of claim and that these treatments interventions would reasonably be expected to identify alternate treatments and improve functioning (Attachment B). As such the Applicant’s spinal disorder could not be considered fully treated and stabilised.
40.The Secretary contends that the spinal disorder was not fully treated in circumstances where at the date of claim the Applicant had been referred to various specialists but was still awaiting consultation during the qualification period. In particularly [sic] the Applicant was referred to a rheumatology clinic on 14 November 2019, a pain management clinic prior to 19 November 2019, an orthopaedic surgeon on 2 December 2019 and a pain specialist on 8 January 2020.
41.Intervention by such specialists would reasonably be expected to identify further treatments available to the Applicant which could result in better management of the Applicant’s pain, and improvement in his functional capacity.
Further the Respondent sought to rely on the following evidence given by the Applicant at the Hearing:[73]
a.    The Applicant confirmed that he was referred to the Rheumatology Clinic at the Sunshine Coast Hospital but has not yet attended an appointment. He was contacted in January 2021 and confirmed that he still wanted the appointment. He is on a waiting list.
b.    The Applicant confirmed that he was referred to the Orthopaedics Clinic at the Sunshine Coast Hospital. He attended an initial appointment with a physiotherapist at the clinic in November 2020, who decided that an appointment with Dr Navalgund, orthopaedic surgeon, was necessary. He attended an initial appointment with Dr Navalgund in the week prior to the hearing on 3 March 2021, who requested that he have a further MRI.
c.     The Applicant confirmed that he was referred to the Persistent Pain Clinic at the Sunshine Coast Hospital. He attended two telephone appointments in December 2020.
[73]    Respondent’s Closing Submissions, pages 2-3, paragraph 15.
The Respondent contended that the Applicant’s diabetes condition was fully diagnosed, however, was not fully treated and fully stabilised during the Relevant Period.[74] The Respondent provided the following in support of this contention:[75]
21.The Secretary submits that the Applicant’s diabetes was fully diagnosed but not fully treated and fully stabilised during the qualification period, in circumstances where the Applicant’s diabetes was not well controlled, he was under the management of an endocrinologist and a diabetes educator, and was on a waiting list for bariatric surgery. The Secretary submits that this treatment resulted in an improvement in the Applicant’s condition after the qualification period.
……
23.The Secretary also relies on the following evidence of the Applicant at the hearing on 3 March 2021:
a. The Applicant gave evidence that his diabetes level is improving. His pain is more controlled and he has watched his diet. His blood sugar levels have come down.
b. The Applicant gave evidence that he applied for bariatric surgery but he is no longer qualified because his BMI is under the minimum.
c. The Applicant gave evidence that it is now less common for him to have adverse side effects.
[74] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 49-50.
[75] Respondent’s Closing Submissions, pages 34, paragraphs 21 and 23.
The Respondent contended that the Applicant’s PTSD condition was not fully diagnosed during the Relevant Period[76] and noted that the Applicant conceded at Hearing that this condition is not pressed.[77]
[76] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 51-53.
[77] Respondent’s Closing Submissions, page 4, paragraphs 24 and 25.
The Respondent contended that the Applicant’s peripheral neuropathy condition while listed as a symptom of his diabetes in the medical certificates of Dr Alexandrescu from 21 November 2019 was not fully diagnosed until after the nerve conduction studies on 20 July 2020. The Respondent further contended that in any event:[78]
….. the Applicant’s peripheral neuropathy was not fully treated and fully stabilised during the qualification period, in circumstances where the Applicant’s diabetes was not controlled and also where there is an absence of any corroborating evidence regarding treatment or prognosis of this condition. The Secretary relies on the report of Dr Johnson dated 30 July 2020 filed by the Applicant which states, ‘… I’ve also talked to him about improving on his metabolic health and his peripheral neuropathy through optimal diabetic diet which includes low carbohydrate consumption and healthy fats. This will help with his metabolic syndrome, weight loss, mental health and nerve health and also reduce his surgical risks.’ The Secretary also relies on the Applicant’s evidence at the hearing on 3 March 2021 that he has not had any treatment for his peripheral neuropathy. ……
[78] Respondent’s Closing Submissions, pages 4-5, paragraph 27.
The Respondent contended that the Applicant’s low testosterone condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period in circumstances where weight loss and a reduction in opiates has been considered likely to improve the Applicant’s testosterone levels. The Respondent sought to rely on the report of Dr Chandrasekar dated 30 June 2020 in that regard.[79]
[79] Respondent’s Closing Submissions, page 5, paragraph 29.
The Respondent contended that the Applicant’s high blood pressure, TIA/brain function and sleep apnoea conditions cannot be accepted as being fully diagnosed, fully treated and fully stabilised during the Relevant Period, in circumstances where there is limited evidence regarding diagnosis, treatment and prognosis that is referrable to the Relevant Period.[80]
[80] Respondent’s Closing Submissions, pages 5-6, paragraphs 31, 33 and 35.
The Respondent contended that the Applicant’s right leg/ankle/foot pain and hip pain condition could not be accepted as having been fully treated and fully stabilised during the Relevant Period in circumstances where the Applicant was undergoing investigations and treatment and was awaiting an appointment the Orthopaedic Clinic at the Sunshine Coast Hospital during the Relevant Period. The Respondent relied on the reports of Dr Bryant.[81]
[81] Respondent’s Closing Submissions, page 6, paragraph 33.
CONSIDERATION
The evidence before the Tribunal clearly demonstrates that the Applicant has been reviewed by a number of specialists and has a number of outstanding referrals for review and treatment for which he needs to be provided with appointments for. The Applicant’s frustration with the waiting times as a public patient was clear.
The Tribunal considers that the Applicant’s view in relation to his conditions having been fully treated and fully stabilised during the Relevant Period does not correspond with the requirements of section 94(1)(b) of the Act, nor does it accord with the ongoing referrals for treatment that were actioned after the Relevant Period or are still to occur. While the Tribunal accepts that from the Applicant’s perspective that, while he awaits further treatment for his conditions they are as stable as they can be, that is not the test for satisfying that those conditions were fully treated and fully stabilised during the Relevant Period.
In this matter the evidence before the Tribunal clearly sets out that the Applicant had not engaged in all reasonable treatment that may be expected to result in a significant functional improvement to a level that may enable him to undertake work in the following two years. While the evidence before the Tribunal is that the recommended surgery for the Applicant’s spinal condition is unlikely to resolve all of his pain issues, there is no evidence to suggest that it would not result in a significant functional improvement. This is noted particularly given that the evidence suggests that the Applicant’s pain impacts upon his diabetes and other conditions.
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
Spinal condition
It is not in contention that the Applicant’s spinal condition was fully diagnosed at the Relevant Period. The evidence clearly establishes that the condition was diagnosed by the Applicant’s general practitioner and confirmed by numerous specialists.
The evidence before the Tribunal, as set out above, clearly shows that in the immediate lead up to and during the Relevant Period the Applicant was referred to the Sunshine Coast Rheumatology Clinic, Nambour Hospital Persistent Pain Management Services Pain 101 Clinic, Sunshine Coast Hospital orthopaedic surgeon, Dr Navalgund and to the Cooinda Clinic for pain management.
Further, in the medical certificates provided by the Applicant’s general practitioner, Dr Alexandrescu on 21 November 2019, 22 January 2020 and 9 April 2020 she reported that the Applicant’s spinal condition was temporary with an uncertain prognosis and that planned treatment was referral to rheumatology and pain medicine clinics. It was not until a report dated 24 April 2020 and responses to a Basic Rights Queensland Treating Health Professional Request for Information dated 4 August 2020 that Dr Alexandrescu provided the opinion that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised from various times from March 2019.
When considering the certificates and reports provided by Dr Alexandrescu as a whole the Tribunal notes that ongoing treatment for the Applicant’s spinal condition was consistently listed and that she did not express concerns about the waiting times for review and treatment in the public hospital system (quite the opposite when considering her reporting to the JCA). Consequently, in the absence of a report from Dr Alexandrescu addressing the reasons for her changes in reporting and when considering the opinions provided by the specialists who reviewed the Applicant, the Tribunal considers that Dr Alexandrescu’s initial contemporaneous reporting is more persuasive – that is that the Applicant’s spinal condition was still being treated with an uncertain prognosis during the Relevant Period.
The Tribunal accepts the evidence that the proposed spinal surgery will not be a fix-all for the Applicant’s spinal condition and pain and that it comes with risks. There is, however, no evidence before the Tribunal to suggest that the surgery would not provide a significant functional improvement for the Applicant that would allow him to undertake work in the following two years. In fact, Dr Finch, opined in October 2020 that the Applicant’s significant foraminal narrowing at the C5-C6 level which he thinks is getting the C6 nerve roots bilaterally would respond nicely to an anterior cervical decompression and fusion. Further Dr Johnson in July 2020 opined that the Applicant requires a holistic management approach which not only includes surgery but also effective postoperative rehabilitation.
The evidence before the Tribunal indicates that the Applicant attended two telephone appointments with the pain management clinic in December 2020, which is well outside the Relevant Period.
In such circumstances, where the Applicant had been referred for specialist review and a pain management clinic and such review and treatment did not occur prior to the end of the Relevant Period, the Tribunal is not satisfied that his spinal condition was fully treated and fully stabilised during the Relevant Period. The Tribunal considers, that in the absence of corroborating evidence to the contrary, it is reasonable to expect that such review and treatment would reasonably be expected to identify treatments available to the Applicant that could result in better management of his pain and significant improvement to his functional capacity.
Consequently, the Tribunal finds that the Applicant’s spinal condition cannot be considered permanent for the purpose of applying the Impairment Tables. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Diabetes – Type 2
It is not in contention that the Applicant’s type 2 diabetes condition was fully diagnosed at the Relevant Period. The evidence clearly establishes that the condition was diagnosed by the Applicant’s general practitioner and confirmed by the Applicant’s endocrinologist.
The Applicant contended that his diabetes was under control and was not poorly managed during the Relevant Period. He told the Tribunal that his general practitioner Dr Alexandrescu and Dr Johnson were incorrect to say otherwise as his blood sugar levels were reasonable when taking into consideration his chronic pain. The Applicant also told the Tribunal that his medication had not changed. However, the medical evidence before the Tribunal paints a very different picture.
When the Applicant was reviewed at the Sunshine Coast Hospital by Dr Balcerek in September 2019 and by Dr Chandrasekar in June 2020 his medication was altered. In December 2019, Dr Balcerek reported that the Applicant had reduced his weight which had, had positive effects on his diabetes. Both Dr Balcerek and Dr Chandrasekar encouraged the Applicant to lose weight to assist with the management and improvement of his condition.
Dr Alexandrescu reported in medical certificates dated November 2019, 22 January 2020 and 9 April 2020 that the Applicant’s diabetes was not well controlled and that he was awaiting bariatric surgery. She stated that further treatment included following up with the diabetic clinic and GP practice planning diabetes and are planning for allied health referrals. Subsequent medical certificates and reports provided by Dr Alexandrescu all continue along the same path, suggesting that the Applicant’s diabetes required further management and better control. Dr Alexandrescu also opined that the Applicant’s peripheral neuropathy was a complication of the Applicant’s diabetes condition.
The medical evidence before the Tribunal does not support the Applicant’s view that his blood sugar levels were reasonable for someone with chronic pain or that his medication was yet stabilised.

The Tribunal notes that Dr Johnson in July 2020 reported that the Applicant had evidence of severe sensory peripheral neuropathy that was likely to be related to his poorly controlled diabetes and that he had metabolic syndrome. Dr Johnson reported that he spoke to the Applicant about improving his metabolic health and his peripheral neuropathy through optimal diabetic diet which includes low carbohydrate consumption and healthy fats which would help his metabolic syndrome, weight loss, mental health and nerve health which would also reduce his surgical risks.
At Hearing the Applicant gave evidence that his diabetes was reactive to his chronic pain and that he had been monitoring it closely. He told the Tribunal that his diabetes had improved due to the elimination of sugars and by him monitoring the situation more in relation to his pain. Further the Applicant told the Tribunal that he was no longer a candidate for bariatric surgery as he had lowered his BMI.
Based on the evidence before it the Tribunal finds that in circumstances where the medical evidence indicates that the Applicant’s diabetes was not well controlled, his medication was still being regulated, he was under the management of an endocrinologist and was on the waiting list for weight loss surgery during the Relevant Period, his diabetes condition could not be considered fully treated and fully stabilised during the Relevant Period. The Tribunal considers that in the absence of corroborating evidence to the contrary, it was reasonable to expect that this treatment would result in improvements to the Applicant’s diabetes condition and based on the Applicant’s own evidence it did so after the Relevant Period.
Consequently, the Tribunal finds that the Applicant’s diabetes condition cannot be considered permanent for the purpose of applying the Impairment Tables. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
PTSD
The introduction of Table 5 of the Impairment Tables requires that in order for a mental health condition to be considered fully diagnosed it must be diagnosed by a clinical psychologist or psychiatrist.
While Dr Alexandrescu has made reference to the Applicant having a history of PTSD, there is no evidence before the Tribunal that her diagnosis has been supported by a corresponding diagnosis of a clinical psychologist or psychiatrist. Further there is no evidence before the Tribunal in relation to treatment (other than medication) that the Applicant may have received in relation to the condition or on the functional impairment that may result due to it.
It is noted that the Applicant agreed at Hearing that his PTSD was not able to be considered in relation to assigning an impairment rating for his present claim for DSP.
Consequently, based on the evidence before it, the Tribunal finds that the Applicant’s PTSD condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Other Conditions
While the Applicant contended that his spinal and diabetes conditions were his main conditions for the purposes of his claim for DSP he also put forward that a number of other conditions were causing him functional impairment. Those conditions include, peripheral neuropathy, low testosterone, high blood pressure, TIA, sleep apnoea and right leg/ankle/foot pain and hip pain conditions (collectively referred to as the Applicant’s other conditions).
While the Tribunal accepts that the Applicant suffers from the other conditions there is insufficient evidence before the Tribunal to establish that any of them were fully diagnosed, fully treated and fully stabilised during the Relevant Period.
The Tribunal acknowledges the Applicant’s evidence is that he had several TIAs prior to the Relevant Period and also one after the Relevant Period in October 2020. The medical evidence before the Tribunal however, provides that the formal diagnosis for this condition occurred after the Relevant Period, being in a discharge letter from the Sunshine Coast Hospital dated 30 October 2020. That discharge letter in relation to the Applicant’s TIA diagnosis indicates that medication was started and that ongoing reviews were to be scheduled.
Therefore, based on the evidence before it, the Tribunal finds that the Applicant’s condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal finds that this condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
The Tribunal accepts that the Applicant says that he first noticed symptoms of his peripheral neuropathy prior to the Relevant Period. The medical evidence before the Tribunal however provides that the formal diagnosis for this condition occurred after the Relevant Period, being in July 2020 at the conclusion of the nerve conduction study.
The Tribunal notes that the Applicant’s general practitioner, Dr Alexandrescu on 21 November 2019, 22 January 2020 and 9 April 2020 and in subsequent medical certificates and reports considered that the applicant’s peripheral neuropathy was a result of the Applicant’s poorly managed diabetes.
It was not until her responses to a Basic Rights Queensland Treating Health Professional Request for Information dated 4 August 2020 that Dr Alexandrescu provided referred to the Applicant’s advanced peripheral neuropathy as a standalone condition, albeit providing that the treatment received for the condition was diabetes management which had not been well controlled over years of disease management, resulting in permanent nerve damage/peripheral neuropathy.
Dr Alexandrescu provided that the condition was first diagnosed on 21 July 2020 by herself and by an endocrinologist at the Caloundra Hospital Diabetes Clinic. Interestingly, Dr Alexandrescu contradicts herself in her responses in relation to when the Applicant’s peripheral neuropathy could be said to have been fully treated and fully stabilised by providing initially from 21 July 2020 and then subsequently from 12 March 2019 and 30 July 2019. Based on the date of diagnosis of 21 July 2020, and totality of the evidence before it, the Tribunal considers that the Applicant’s peripheral neuropathy could not have been said to have been fully treated and fully stabilised prior to formal diagnosis. As such in the absence of evidence from Dr Alexandrescu to address the inconsistency in her reporting, the Tribunal does not consider her evidence in this regard found in the response to the Basic Rights Queensland Treating Health Professional Report for Information to be persuasive.
The medical evidence provided both from Dr Alexandrescu and Dr Johnson indicate that the Applicant’s peripheral neuropathy is related to his poorly managed diabetes. As such, given that the Tribunal found that the Applicant’s diabetes condition was not fully treated and fully stabilised during the Relevant Period it finds that neither could his peripheral neuropathy be said to have been fully treated and fully stabilised at that time.
Therefore, based on the evidence before it, the Tribunal finds that the Applicant’s peripheral neuropathy condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Consequently, the Tribunal finds that this condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Based on the evidence before it, the Tribunal finds that the Applicant’s low testosterone condition was fully diagnosed at the Relevant Period. The Tribunal notes that Dr Chandrasekar opined that weight loss and the requirement for less painkillers would possibly spontaneously improve the Applicant’s low testosterone. Weight loss and the need for less painkillers was considered from the view point of the Applicant making changes to the management of his diabetes and having weight loss surgery. As that had not occurred during the Relevant Period and in the absence of evidence to the contrary and in relation to any functional impairment that was being derived from the Applicant’s low testosterone condition, the Tribunal finds that the Applicant’s low testosterone condition cannot be considered fully treated and fully stabilised during the Relevant Period.
Consequently, the Tribunal finds that the Applicant’s low testosterone condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
The Tribunal acknowledges that the Applicant accepted at Hearing that his sleep apnoea condition was not relevant for his claim for DSP. The Tribunal accepts that the Applicant’s sleep apnoea condition was fully diagnosed prior to the Relevant Period, noting that he underwent surgery in 2009. However, in light of the Applicant’s concession and in the absence of any supporting medical evidence to the contrary, the Tribunal finds that the Applicant’s sleep apnoea condition can not be considered fully treated and fully stabilised during the Relevant Period.
Consequently, the Tribunal finds that the Applicant’s sleep apnoea condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
The Tribunal acknowledges that the Applicant was diagnosed with high blood pressure prior to the Relevant Period and that he monitors this condition himself in response to the impacts that his pain has on it. However, there is no evidence before the Tribunal in relation to the treatment for and functional impact of this condition. Consequently, in the absence of any supporting medical evidence to the contrary, the Tribunal finds that the Applicant’s high blood pressure condition cannot be considered fully treated and fully stabilised during the Relevant Period.
Therefore, the Tribunal finds that the Applicant’s high blood pressure condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
In relation to the Applicant’s right leg/ankle/foot and hip pain condition the Applicant underwent investigations including an MRI and bone scan during the Relevant Period and was reviewed by Dr Bryant, who subsequently referred him to the Orthopaedics Clinic at the Sunshine Coast Hospital. Further in October 2020, Dr Finch identified that the Applicant may have some wear and tear of his right knee and has active subacute myositis posterior around the posterior part of his ankle. Dr Finch recommended that the Applicant be referred to the public hospital.
In these circumstances the Tribunal finds that the Applicant’s right leg/ankle/foot, hip pain and knee condition were not fully diagnosed, fully treated and fully stabilised during the Relevant Period as ongoing investigations were occurring and further referrals for additional specialist review was recommended.
Therefore, the Tribunal finds that the Applicant’s right leg/ankle/foot, hip pain and knee condition could not be considered permanent for the purpose of applying the Impairment Tables and as such the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
The Tribunal finds that the Applicant’s spinal and diabetes conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period and therefore could not be considered to be permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that the Applicant’s PTSD condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered to be permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for this condition.
The Tribunal finds that the Applicant’s other conditions could not be considered permanent for the purposes of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points for these conditions.
The Tribunal finds that for the purposes of section 94(1)(b) the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 123 (one hundred and twenty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........................[SGD]..............................................
Associate
Dated: 12 August 2021

Date of Hearing:

Directions Hearing:

3 March 2021

12 July 2021

Applicant:

By telephone

Solicitors for the Respondent:

Ms Gillian Gehrke

Services Australia

[2021] AATA 2808

12 August 2021

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