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

Fisher and Secretary, Department of Social Services (Social services second review) [2019] AATA 234 (28 February 2019)
Division:GENERAL DIVISION
File Number(s):2018/5493
Re:Michael Fisher
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:28 February 2019
Place:Brisbane

The Tribunal affirms the decision under review.
........................[SGD].........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
LEGISLATION
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
28 February 2019
INTRODUCTION

On 14 August 2017, Mr Michael Fisher (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]
[1] Exhibit 1, T-Documents, T 4, pages 50- 80, Disability Support Pension claim form.
The claim was rejected on 21 February 2018[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 28 June 2018.[3]
[2] Exhibit 1, T-Documents, T 5, pages 81-82, Centrelink Notice: Rejection of your claim for Disability Support Pension.
[3] Exhibit 1, T-Documents, T 6, pages 83-87, Decision and notes of Authorised Review Officer.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). The SSCSD affirmed the decision of the ARO on 5 September 2018.[4]
[4] Exhibit 1, T-Documents, T 2, pages 3-5, Decision of the Social Services & Child Support Division.
Following this, the Applicant sought a second-tier review of his matter by the General Division of this Tribunal, by way of an application dated 20 September 2018.[5]
[5] Exhibit 1, T-Documents, T 1, pages 1-2, Application for Review.
On 13 February 2019, a Hearing was held for this application. At the Hearing, the Applicant appeared in person, and was assisted by his wife Mrs Babylyn Fisher. Mr Fisher gave evidence under oath.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form he lists the following disabilities, illnesses or injuries:[6]
·® above the knee amputation
·Cardiac ischemia
·Lumbar fusion
·2 heart double bypass
·Dyslexia sickness
[6] Exhibit 1, T-Documents, T 4, page 75, Disability Support Pension claim form.
On 21 February 2018, a decision was made to reject the Applicants DSP on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[7]
[7] Exhibit 1, T-Documents, T 5, page 81, Centrelink Notice: Rejection of your claim for Disability Support Pension.
On 28 June 2018, an ARO affirmed the decision to refuse the Applicants DSP application having made the following key findings:[8]
•     You have the following permanent conditions: diabetes, a learning disability (dyslexia) and above knee amputation. Where there was sufficient evident of functional impact, these conditions were assessed under the Impairment Tables.
•     Your conditions of cardiac ischaemia and spinal disorder were not assessed under the Impairment Tables as they were regarded as not fully treated and stabilised.
•     Your total impairment rating is nil points.
[8] Exhibit 1, T-Documents, T 6, pages 83-84, Decision and notes of Authorised review officer.
On 12 July 2018, the Applicant sought review of the ARO’s decision.[9] On 5 September 2018, the decision under review was affirmed by the SSCSD.[10]
[9] Exhibit 1, T-Documents, T 7, pages 88-90, Application for Review of Decision by the Administrative Appeals Tribunal.
[10] Exhibit 1, T-Documents, T 2, pages 3-5, Decision of the Social Services & Child Support Division.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
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.    Does 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.
The Impairment Tables are set out in the Determination which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
b)are function based rather than diagnosis based; and
c)describe functional activities, abilities, symptoms and limitations; and
d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[14] 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.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]
[14] Section 6(1) of the Determination.
[15] Section 6(2) of the Determination.
[16] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[17]
[17] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[18]
a)have been fully diagnosed by an appropriately qualified medical practitioner;
b)have been fully treated;
c)have been fully stabilised; and
d)more likely than not, in light of available evidence, to persist for more than 2 years.
[18] Section 6(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 whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[19]
[19] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[20]
(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.
[20] 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.[21]
[21] Section 6(7) of the Determination.
In selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; and identify the correct impairment rating.[22] In assessing impairments where a single condition causes multiple impairments. each impairment should be assessed under the relevant Table and. where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[23] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[24]
[22] Section 10 of the Determination.
[23] Sections 10(3) and (4) of the Determination.
[24] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; and if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[25]
[25] Section 11(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 in summary requires that a person must:
a.if they do not have a severe impairment, have actively participated in a program of support;
b.be unable to work for at least 15 hours per week independently of a program of support; and
c.be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
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.[26]
[26] Section 94(3B) of the Act.
The Administration Act sets out the qualification for DSP. Assessment of the relevant impairment ratings is to be determined at the date of claim. Where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, the start date for DSP is the date the person becomes qualified.[27]
[27] 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 following. Further medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[28]
[28] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139, [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, [25]-[28].
Relevant Period
The Relevant Period in this matter commences on 14 August 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 13 November 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
Issues
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.[29] The Respondent considers the Applicant’s impairments include peripheral vascular neuropathy,[30] right leg above knee amputation,[31] right finger amputation,[32] spinal condition,[33] heart condition,[34] diabetes[35] and dyslexia condition.[36]
[29] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 30.
[30] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 45-47.
[31] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-9, paragraphs 48-54.
[32] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 55-56.
[33] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 57-65.
[34] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 66-68.
[35] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 69-72.
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 73-74.
The remaining issues for the Tribunal to consider are:
1.Whether within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing the Applicant gave evidence under oath and openly responded to questions from the Tribunal and cross examination from the Respondent. I consider that the Applicant gave honest answers to the questions he was asked. I accept that the Applicant suffers impairments due to the conditions outlined below and is focused on being able to be more independent in managing his daily living requirements.
The present issue for the Tribunal is whether at or during the Relevant Period the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[37] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[38]
[37] Section 6(3) of the Determination.
[38] Section 6(4) of the Determination.
The Applicant provided a number of medical reports and other documents in support of his application, however overall they did not go to the functional impairments caused by the conditions during the Relevant Period. 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.[39] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[40]
[39] Section 6(2) of the Determination.
[40] Section 8(1) of the Determination.
Medical Evidence
In support of his claim for DSP the Applicant provided the following:
·Medical records from Palawan Adventist Hospital which provides that the Applicant underwent an above right knee amputation on 17 July 2013.[41]
[41] Exhibit 1, T Documents, T 11, pages 117-120, Medical Records from Palawan Adventist Hospital.
·Medical History Report from Dr Katrina Neal dated 10 July 2017 which lists past history as including:
o2013 Amputation – above knee
o2006 Aortic aneurysm repair x 2 and again in 2015
o2015 NIDDM
o2015 Warfarin Care
o1989 Spinal fusion L5/S1
o2017 vertebral compression T12 low back surgery
oFrom birth has had dyslexia and finds reading and writing very difficult.[42]
Dr Neal also provided “He has not worked since a back injury in 2009, when he was declared unfit for work with 100 per cent disability. Since then he has developed diabetes and widespread atherosclerosis and has had surgery on his aorta x 2.
I am of the opinion that he is unable to ever work again, given his significant disabilities.”[43]
·A Medical Certificate completed by Dr Gerry Dowdall on 31 July 2017 which lists the Applicant’s conditions as being above knee amputation, cardiac ischeamia and lumbar fusion, all conditions are listed as permanent and likely to persist however no current or future treatment is listed.[44]
·A Medical Certificate completed by Dr Arnaldo Favila Jr on 2 August 2017 confirming the Applicant’s right knee amputation.[45]
·A Medical Certificate completed by Dr Arellano Rosella of the Philippine Heart Centre on 8 November 2017 confirming the Applicant’s heart surgery on 2 April 2016 and 6 April 2016.[46]
[42] Exhibit 1, T Documents, T 12, pages, 121-122, Medical History Report completed by Dr Neal.
[43] Exhibit 1, T Documents, T 12, pages, 121-122, Medical History Report completed by Dr Neal.
[44] Exhibit 1, T Documents, T 13, page, 123, Medical Certificate completed by Dr Dowdall.
[45] Exhibit 1, T Documents, T 14, page, 124, Medical Certificate Palawan Adventist Hospital.
[46] Exhibit 1, T Documents, T 16, page 127, Medical Certificate Philippine Heart Center.
A Job Capacity Assessment (JCA) was carried out on 20 November 2017 by a registered nurse, with input from a registered occupational therapist and registered psychologist. The Respondent helpfully summarised the report dated 7 December 2017 by:
…. the assessors recommended that the Applicant’s claimed conditions were either no fully diagnosed, treated and stabilised (FDTS) at the date of claim, or, for those that were, there was insufficient medical evidence provided regarding the functional impact of the condition. Accordingly, the assessors recommended that no impairment ratings could be assigned under the impairment tables.[47]
[47] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 2, paragraph 7.
Throughout the review process, including at the Hearing before this Tribunal the Applicant provided the following additional evidence:
·Medical Records from the Philippine Heart Centre which confirms in relation to the Applicant’s April 2016 hospital admission and surgery.[48]
[48] Exhibit 1, T Documents, T 17, pages 128-149, Medical Records Philippine Heart Center.
·Medical Certificate completed by Dr Saeed Alam on 18 December 2017 providing a diagnosis of severe peripheral vascular disease which affects both legs however is considered temporary with an uncertain prognosis and planned treatment being referred to vascular surgeon at the PA Hospital. [49]
[49] Exhibit 1, T Documents, T 19, page 160, Medical Certificate completed by Dr Alam.
·Letter authored by Dr Shahid Ali dated 11 March 2018 which provides:
He suffers from Peripheral vascular disease and currently on waiting list to see the Vascular surgeon, he had right above knee amputation in 2011 and also had left leg sided embolectomy in 2016 in Philippines. He also suffers from diabetes, hypertension and hyperlipidaemia, also had Back surgery.[50]
[50] Exhibit 1, T Documents, T 20, pages 161-163, Medical Report completed by Dr Ali.
·Medical Certificate completed by Dr Lucy Pople on 21 July 2018 diagnosing the Applicant’s right ring finger osteomyelitis and setting out it is a temporary condition with current treatment being surgery and IV antibiotics.[51]
[51] Exhibit 1, T Documents, T 21, page 164, Medical Certificate completed by Dr Pople.
·Ipswich Hospital Patient Discharge Information Checklist dated 21 July 2018 in relation to the Applicant’s finger surgery.[52]
[52] Exhibit 1, T Documents, T 22, page 165, Ipswich Hospital Patient Discharge Information Checklist.
·Medical certificate completed by Dr Ali dated 12 August 2018 diagnosing the Applicant’s “post distal phalanx amputation of Right Ring Finger”, listing that the condition is permanent, with no current or planned treatment provided.[53]
[53] Exhibit 1, T Documents, T 23, page 166, Medical Certificate completed by Dr Ali.
·Part of a letter from Dr Ali, dated 11 October 2018,[54] which confirmed the information provided in Dr Ali’s letter dated 11 March 2018.
[54] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A.
·Letter from the NDIS dated 24 July 2018 advising that his request to access the NDIS has been successful.[55]
[55] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment B.
·Letter from the NDIS, dated 25 October 2015, confirming that the Applicant’s NDIS plan has been approved, and attached the plan. The Plan started on 24 October 2018, to be reviewed by 24 April 2019 and provides for support in the areas of assistive technology (including funding for the purchase of assistive and adaptive equipment and technology, namely prosthesis, shower support, walking aides and manual wheelchair), improved daily living (including funding for selection, manufacturing and assessment of a prosthesis, assessment for further equipment to assist in the home and physiotherapy to strengthen limb to improved mobility and stamina), support coordination and core supports.[56]
[56] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment C.
·Chronic Disease GP Management Plan completed by Dr Ali on 10 December 2018, together with responses to questions about the Applicant’s spine.[57] The responses to the questions do not make reference to the Applicant’s condition at the Relevant Period and provide:
[57] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment D.
It is unlikely that his condition will improve in the next 2 years with specialist review or physio review. Had surgery in the past – laminectomies and spine fusion.
In 2008 at Mater Private Hospital [Applicant attended pain management]
It will be difficult for Michael to perform overhead activities (mentioned above) [like handing out washing] due to his medical condition without experiencing pain and also risk of fall.[58]
·Email dated 8 February 2019 from Danica Westacott, Physiotherapist which included an update on the Applicant’s ‘current functional status’ and attached a completed ‘The Lower Extremity Function Scale’.[59]
·A note – Dr Tim McGahan, PA Hospital, Vascular Surgeon. The Applicant advised that he had seen Dr McGahan the week before the Hearing and would be receiving a report in the near future.[60]
·Documents from BlueCare dated 7 January 2019 relating to support provided to the Applicant from early December 2018.[61]
·Occupational Therapy Functional Assessment Report, dated 12 January 2019, completed by Kimberley Claydon, Occupational Therapist for the purpose of providing an overview of the Applicant’s ‘current functional impairment’.[62]
·An undated Chronic Disease Management – GP Management Plan from Redbank Plains Family Health Centre outlining the Applicant’s current medication regime.[63]
[58] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment D.
[59] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, Update from physiotherapist dated 8 February 2019.
[60] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, Post-it note with name of vascular surgeon.
[61] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, BlueCare support document dated 7 January 2019.
[62] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, Occupational therapist functional assessment report dated 12 January 2019.
[63] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, Redbank Plains Family Health report.
Contentions

The Respondent contends that none of the Applicant’s impairments can attract an impairment rating under the Impairment Tables and therefore the Applicant did not satisfy section 94(1)(b) of the Act.[64]
[64] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 31.
The Respondent:
·Accepts that the Applicant’s peripheral vascular neuropathy was fully diagnosed at the Relevant Period. Contends that this condition was not fully treated and fully stabilised during the Relevant Period, as the medical evidence indicated the Applicant was still awaiting treatment, following specialist review, and that there is no medical evidence which suggest that functional improvement was unlikely to result with further treatment.[65]
[65] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 45-47.
·Accepts that the Applicant had an above knee amputation of his right leg on 17 July 2013, that the condition was fully diagnosed during the Relevant Period and was likely to persist for more than 2 years. Contends the condition was not fully treated and stabilised during the Relevant Period as:
othere is no evidence regarding any rehabilitation undertaken following the Applicant’s surgery in 2013 and at the time of claim;
othe Applicant was still awaiting review to assess his rehabilitation needs and fit a prosthesis; and
oWith rehabilitation and physiotherapy following provision of an appropriate prosthesis, it is likely that the Applicant’s mobility and functioning would improve.[66]
[66] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7- 8, paragraphs 48 to 51.
·Contends that the Applicant’s right finger amputation occurred some 10 months after he made the claim for DSP and accordingly was not fully diagnosed, fully treated or fully stabilised at the Relevant Period.[67]
·
Accepts that the Applicant’s spinal condition was fully diagnosed at the Relevant Period.[68] Contends that the condition was not fully treated and fully stabilised during the Relevant Period.[69] Contends that the information provided by Dr Ali in response to a list of question about the Applicants spine dated 10 December 2018[70] should not be accepted by the Tribunal as: the opinion was provided almost 18 months after the Applicant’s claim for DSP; noting that the Applicant first consulted Dr Ali in November 2017; and none of the medical certificates, including that of Dr Ali dated 18 December 2017 make any reference to a current back condition or any impairment to spinal function until Dr Ali’s report dated

1 March 2018 which notes the Applicant “had Back surgery” without describing any current symptoms or impairment to function.[71]
·Accepts the Applicant suffers from cardiac ischemia with onset in 2016 and as such the condition was fully diagnosed at the Relevant Period.[72] Contends the Applicant’s heart condition was not fully treated and fully stabilised during the relevant period.[73]
·Accepts that the Applicant’s non-insulin dependent diabetes mellitus (type 2) was fully diagnosed, treated and stabilised at the date of claim.[74] Contends that the diabetes condition causes minimal functional impairment and there is no medical evidence to suggest otherwise. Therefore, the condition should be rated 0 points under Table 1 of the Impairment Tables.[75]
·Accepts that the Applicant has dyslexia, however contends the condition cannot be assessed as fully diagnosed, treated or stabilised as no medical evidence has been provided in relation to treatment undertaken for the condition or functional impact of the condition.[76]
·Contends that the Applicant does not meet the continuing inability to work requirements.[77]
[67] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 55-56.
[68] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 57.
[69] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 57-65.
[70] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment D.
[71] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 60-62.
[72] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraph 66.
[73] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraph 67.
[74] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraph 69.
[75] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 70-72.
[76] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 12, paragraphs 73-74.
[77] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 12-14, paragraphs 76-95.
The Applicant contends that he meets the qualification requirements to be granted DSP. At Hearing, he told the Tribunal that he returned to Australia from the Philippines on the understanding that he qualified for DSP.
In his application to this Tribunal for review of the decision to refuse his claim for DSP the Applicant provided the following reasons for making the application:
Because I am permanently in a wheelchair, and right leg above knee amputation, spinal fussion [sic], peripheral artery disease, acute limb ischema [sic] 1/B-111, left S/P Femoral Emboictomy, Aorta-Bifemoral graft and I cannot lift my arms above my head. Right ring finger top amputated.
At Hearing the Applicant gave evidence that:
·
The Supreme Court had awarded him 12% disability for his back and that he received a payout for his disability. He told the Tribunal that he can sit for a long time because he has to, however must lie down between 12 pm and 2 pm each day to relieve the pain. The Respondent drew to the Applicant’s attention that in his response to the questions asked about his back, dated 10 December 2018,

Dr Ali says it would be difficult for the Applicant to perform overhead activities but did not say he could not. The Applicant said that the questions were from Legal Aid and he agrees that is what Dr Ali wrote, however he cannot hang out washing as he cannot reach over his head and he cannot wash his hair.
·He had not had rehabilitation after having his right leg amputated as such services are not available in the Philippines. He told the Tribunal that through the NDIS he has applied for a prosthesis and it is intended that a prosthesis would improve his back, allow him to stand up more and mobile more with a walking stick, but he would not be able to run. When asked by the Respondent about references to the having a prosthesis fitted in the Philippines the Applicant told the Tribunal that he had a prosthesis for a short time however could not wear it due to swelling caused by his diabetes.
·His heart condition is due to deep vein thrombosis and he has to take Warfarin to control this. The Applicant told the Tribunal that the JCA misunderstood when they reported he had stopped taking Warfarin, he had been advised by a doctor to stop however the next week he saw his regular doctor, Dr Ali who told him to start taking the Warfarin again or he would die, so he recommenced the treatment. The total period he was not taking Warfarin was one week. The Applicant told the Tribunal that Dr Ali referred him to a specialist and confirmed that he first saw Dr Ali in November 2017. He saw Dr McGahan, a vascular surgeon the week prior to the Hearing who is yet to write him a report but said he was going to monitor the Applicant’s blood for the next year. The Applicant reported that Dr McGahan told him he could not work because of the possibilities of blood clots in his leg and the risk of bleeding out should he be injured.
·The treatment for his vascular and heart conditions are the same.
·His diabetes is under control. He manages it with diet and weight control.
·He agreed that his right ring finger amputation occurred outside of the Relevant Period and is not part of this claim for DSP.
·His dyslexia has been there since birth and has been diagnosed on multiple occasions with the first being by the Liverpool Private Hospital. As a child, he tried classes and wearing rose coloured glasses to correct the condition however this did not work. The Applicant told the Tribunal that he cannot read and write and that he has always told employers that from the outset. During his past employment, special arrangements were put in place to assist him to work. Currently his wife assists him with reading and writing.
·He now receives assistance from BlueCare which started at the end of 2018, however previous to this all assistance was solely provided by his wife.
·He cannot assist his wife in the garden and spends “99% of his time in the house”. The Applicant told the Tribunal that he goes to the shops on his scooter, that the shops are not far away, that he only goes during the day and that he wears his sunglasses and a hat. When asked by the Respondent whether he could put his hat on and take it off by himself the Applicant told the Tribunal that he gets his daughter or wife to help him put the hat on and he can sometimes knock it off by moving his head around, he said he cannot lift his arms above his head.
·He cannot engage in study as he cannot read and write.
·He was always a storeman and is not sure what kind of work he could do now if he was able to work.
Consideration
The Applicant returned to Australia on 6 July 2017,[78] after having lived in the Philippines for approximately 7 years. I accept the Applicant’s evidence that follow up treatment and rehabilitation, in relation to medical care in the Philippines, is substantively different to that provided or available in Australia. However, the Tribunal is limited to considering whether an Applicant qualifies for DSP in accordance with the requirements set out in the Act and
[78] Exhibit 1, T Documents, T 4, pages 50, 55-56, Disability Support Pension claim form.
the Determination.
To that end in considering whether the Applicant’s conditions were fully diagnosed, fully treated, fully stabilised and capable of being assigned impairment points, the Tribunal is limited to considering the evidence before it and, in particular, as it relates to the Relevant Period.
Based on the evidence set out above I find that:
·The Applicant’s peripheral vascular neuropathy condition was fully diagnosed at the Relevant Period,[79] however was not fully treated and fully stabilised as the Applicant was in the process of being referred to a specialist for review.[80] There is no evidence that the condition would not improve with further treatment.
·The Applicant had right above knee amputation surgery on 17 July 2013 and that the condition was fully diagnosed during the Relevant Period.[81] I accept the Respondent’s contentions that there was no evidence before the Tribunal that the Applicant had undertaken rehabilitation in relation to this condition. This was confirmed by the Applicant at Hearing. Reference was made to the fitting of a prosthesis and based on the evidence before the Tribunal, this treatment was still being assessed during the Relevant Period and to date. On 24 October 2018, the Applicant was granted access to the NDIS which included improved daily living funding for selection, manufacturing and assessment of a prosthesis, assessment for further equipment to assist in the home and physiotherapy to strengthen limb to improve mobility and stamina.[82] On this basis, I find that the Applicant’s right above knee amputation condition was not fully treated and fully stabilised at the Relevant Period.
·The Applicant’s right finger amputation was not fully diagnosed, fully treated or fully stabilised at the Relevant Period.[83] The Applicant conceded at Hearing that this condition did not fall within the Relevant Period of this application.
·The Applicant’s spinal condition was fully diagnosed at the Relevant Period.[84] There is insufficient evidence before the Tribunal in relation to the current or past treatment of the spinal condition outside of surgery. The evidence provided in relation to functional impairment caused by the condition does not relate to the Relevant Period and as such is of no assistance to the Tribunal in this application.[85] On this basis I find that the Applicant’s spinal condition was not fully treated and fully stabilised at the Relevant Period.
·The Applicant’s diabetes condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period. Based on the evidence given by the Applicant at hearing I find that his diabetes condition has a minimal functional impairment and that the condition is well managed. There is no medical evidence before the Tribunal that suggests otherwise. As such I find that the condition can be awarded 0 points under table 1 of the Impairment Tables.
·The Applicant’s heart condition was fully diagnosed at the Relevant Period.[86] There is however, no independent medical evidence in relation to the treatment of this condition. The Applicant told the Tribunal at the hearing that this condition is linked to his vascular condition. This condition is impacted upon by deep vein thrombosis and Warfarin treatment also impacts on the management of his heart condition. Similarly, to the Applicant’s peripheral vascular neuropathy condition, I find that his heart condition was not fully treated and fully stabilised at the Relevant Period as he was being referred for specialist review.
·The Applicant’s dyslexia condition was not fully diagnosed, fully treated or fully stabilised at the Relevant Period. While I accept that the Applicant has dyslexia which causes difficulties with reading and writing[87] there is no evidence of the diagnosis of the condition by a suitably qualified medical practitioner before the Tribunal. There is also no evidence in relation to the functional impact this condition has on the Applicant before the Tribunal. On this basis, I find that the Applicant’s dyslexia condition was not fully diagnosed, fully treated and fully stabilised at the Relevant Period.
[79] Exhibit 1, T Documents, T 19, page 160, Medical Certificate completed by Dr Alam; T 20, pages 161-163, Medical Report completed by Dr Ali.
[80] Exhibit 1, T Documents, T 19, page 160, Medical Certificate completed by Dr Alam; T 20, pages 161-163, Medical Report Dr Ali.
[81] Exhibit 1, T Documents, T 11, pages 117-120, Medical Records Palawan Adventist Hospital; T 14, page 124, Medical Certificate Palawan Adventist Hospital.
[82] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment C.
[83] Exhibit 1, T Documents, T 21, page 164, Medical Certificate completed by Dr Pople; T 22, page 165, Ipswich Hospital Patient Discharge Information Checklist; T 23, page 166, Medical Certificate completed by Dr Ali.
[84] ^{^[84]} Exhibit 1, T Documents, T 12, pages 121-122, Medical History Report completed by Dr Neal; T 20, 161-163, Medical Report completed by Dr Ali.
[85] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment D; Exhibit 3, Update from physiotherapist; Post-it note with name of vascular surgeon; Occupational therapist functional assessment report; BlueCare support document; and, Redbank Plains Family Health report.
[86] Exhibit 1, T Documents, T 12, pages 121-122, Medical History Report completed by Dr Neal; T 20, 161-163, Medical Report completed by Dr Ali.
[87] Exhibit 1, T Documents, T 12, pages 121-122, Medical History Report completed by Dr Neal.
As I have found that the Applicant’s peripheral vascular neuropathy, right above knee amputation, spine and heart conditions were fully treated and fully stabilised during the Relevant Period, the conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
As I have found that the Applicant’s right finger amputation and dyslexia conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
Based on the medical reports and evidence provided by the Applicant, there is limited information that relates to the functional impact of the conditions on the Applicant during the Relevant Period. As such, even had I found that any of the Applicant’s conditions were considered permanent for the purposes of assigning impairment points under the Impairment Tables, the Applicant had not provided sufficient self-reported or corroborating medical evidence in relation to the functional impairments caused by his conditions during the Relevant Period.
It is noted that the Applicant provided a number of medical reports and other documents, which are dated outside the Relevant Period and provide details relating to the current functional impact of the conditions upon the Applicant. In particular, the NDIS plan[88] and, subsequent reports and letters[89] look at the Applicant’s conditions from late 2018 to present. This evidence does not assist in the Applicant’s present claim for DSP as it does not go to the Relevant Period.
[88] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment C.
[89] Exhibit 3, Documents provided by the Applicant at Hearing on 13 February 2019, Update from physiotherapist dated 8 February 2019; Post-it note with name of the vascular surgeon; Occupational therapist functional assessment report 12 January 2019; BlueCare support document dated 7 January 2019; and, Redbank Plains Family Health report.
Continuing inability to work
As I have 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
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s peripheral vascular neuropathy, right above knee amputation, spine and heart conditions were fully diagnosed however were not fully treated or fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s diabetes condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and has a minimal functional impact. I therefore assign the Applicant’s diabetes condition 0 points under the Impairment Tables.
I find that the Applicant’s right finger amputation and dyslexia conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Therefore, the conditions could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
I find that 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 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................[SGD]..............................................
Associate
Dated: 28 February 2019

Date of Hearing: 13 February 2019

Applicant: In Person

Advocate for the Respondent: Jasmine Forsyth and Lisa Palmer

[2019] AATA 234

28 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of Hearing:	13 February 2019
Applicant:	In Person
Advocate for the Respondent:	Jasmine Forsyth and Lisa Palmer