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

Franklin and Secretary, Department of Social Services (Social services second review) [2019] AATA 3904 (26 September 2019)
Division:GENERAL DIVISION
File Number: 2018/7027
Re:Mathew Franklin
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:26 September 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
26 September 2019
INTRODUCTION

On 5 April 2017 (2017 application) and 10 April 2018 (2018 application), Mr Mathew Franklin (the Applicant) lodged claims for the Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T5, pages 50-80; T11, pages 100-131, Claims for DSP.
The claims were rejected on 11 January 2018[2] and 15 June 2018[3] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The decisions were reviewed by an Authorised Review Officer (ARO) who affirmed the decisions to refuse the applications for DSP on 12 July 2018.[4]
[2]     Exhibit 1, T Documents, T10, pages 98-99, Letter: Rejection of DSP claim.
[3]    Exhibit 1, T Documents, T16, pages 153-154, Letter: Rejection of DSP claim.
[4]     Exhibit 1, T Documents, T21, pages 167-174, T22, pages 175-182, ARO Decisions and Notes.
The Applicant sought a first-tier review of those decisions by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decisions of the ARO on 15 November 2018.[5]
[5] Exhibit 1, T Documents, T2, pages 2-5, 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 29 November 2018.[6]
[6] Exhibit 1, T Documents, T1, page 1, Application for Review.
On 22 August 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the dates of his claims or within 13 weeks thereafter.
BACKGROUND
In the Applicant’s 2017 application[7] he lists the following disabilities, illnesses or injuries:[8]
·Spondylolistheses
·Disc prolapse
·Torn ligament
[7] Exhibit 1, T Documents, T5, pages 50-80, DSP claim form.
[8] Exhibit 1, T Documents, T5, page 76, DSP claim form.
On 17 July 2017, the Applicant attended a face to face assessment with a Job Capacity Assessor (JCA),[9] whose professional discipline is listed registered occupational therapist.[10] The JCA provided a report recommending the following:[11]
(a)The Applicant’s spinal disorder condition and neck disorder condition were fully diagnosed, but not fully treated and stabilised on the basis that the Applicant was awaiting surgery.
(b)The Applicant’s lower limb condition was fully diagnosed, but not fully treated and fully stabilised as the Applicant had not undertaken any treatment for this condition.
(c)The Applicant had a capacity to work 15-22 hours per week within 2 years with intervention.
[9] Exhibit 1, T Documents, T9, pages 90-97, JCA Report.
[10] Exhibit 1, T Documents, T9, pages 90, JCA Report.
[11] Summary of JCA findings outlined in Exhibit 4, Secretary’s Statement of Facts & Contentions, page 2, paragraph 6.
On 11 January 2018, the Applicant’s 2017 application for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[12]
[12] Exhibit 1, T Documents, T10, pages 98-99, Letter: Rejection of DSP claim.
On 10 April 2018, the Applicant requested an internal review of the decision to reject his 2017 application[13] and made a second claim for DSP.[14] In his 2018 application, the Applicant lists the following disabilities, illnesses or injuries:[15]
·lumbar spinal fusion, impingement of nerves in neck
·[indecipherable] left shoulder
·right ankle tendon damage
[13]    Exhibit 1, T Documents, T26, page 232, Document list and customer contact file notes for the period      5 April 2017 to 12 July 2018.
[14]    Exhibit 1, T Documents, T11, pages 100-131, Claim for DSP.
[15]    Exhibit 1, T Documents, T11, page 125, Claim for DSP.
On 23 May 2018, the Applicant attended a face to face assessment with a JCA,[16] whose professional discipline is listed as an accredited exercise physiologist who provided a report[17] considering the additional information provided by the Applicant. The JCA formed the view that ‘there is no information that would impact or alter the outcome of the decision from the previous JCA report dated 17 July 2017’.[18]
[16]    Exhibit 1, T Documents, T15, page 143-152, JCA Report.
[17]    Exhibit 1, T Documents, T15, pages 143-152, JCA Report.
[18]    Exhibit 1, T Documents, T15, page 143-152, JCA Report.
On 15 June 2018, the Applicant’s 2018 application for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[19]
[19] Exhibit 1, T Documents, T16, pages 153-154, Letter: Rejection of DSP claim.
On 15 June 2018, the Applicant sought internal review of the decision to reject his 2018 application and for further review of the decision to reject his 2017 application.[20]
[20] Exhibit 1, T Documents, T26, pages 238-240, Document list and customer contact file notes for the period 5 April 2017 to 12 July 2018.
On 12 July 2018, an ARO affirmed the decisions to refuse the Applicant’s 2017 and 2018 applications for DSP.[21]
[21] Exhibit 1, T Documents, T21, pages 167-174, T22, pages 175-182, ARO Decision and Notes.
On 27 July 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[22] On 15 November 2018, the SSCSD affirmed the decision under review.[23]
[22] Exhibit 1, T Documents, T23, pages 183-184, Application to the SSCSD.
[23] Exhibit 1, T Documents, T2, pages 2-5, Decision of the SSCSD.
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).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[24]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[25] and
3.Does the Applicant have a continuing inability to work?[26]
[24]    Section 94(1)(a) of the Act.
[25]    Section 94(1)(b) of the Act.
[26]    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 do, not on the basis of what the person chooses to do or what others do for them.[27] 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.[28] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[29]
[27]    Section 6(1) of the Determination.
[28]    Section 6(2) of the Determination.
[29]    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.[30]
[30] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[31]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[31] 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 2 years.[32]
[32] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[33]
(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.
[33] 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.[34]
[34] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[35] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. 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.[36] 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.[37]
[35]    Section 10 of the Determination.
[36]    Sections 10(3) and (4) of the Determination.
[37]    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; 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.[38]
[38] 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 requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
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.[39]
[39] 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 becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[40]
[40] Sections 41 and 42; clauses 3 and 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.[41]
[41] 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 for the 2017 application on 5 April 2017, being the date the Applicant lodged his first claim for DSP, and ending 13 weeks later on 5 July 2017. The Relevant Period in this matter commences for the 2018 application on 10 April 2018, being the date the Applicant lodged his second claim for DSP, and ending 13 weeks later on 10 July 2018. 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 Periods and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[42] and the Respondent considers the Applicant’s impairments include back,[43] neck,[44] upper limb,[45] lower limb[46] and other conditions.[47]
[42]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 8, paragraph 45.
[43]    Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 9-14, paragraphs 49-68.
[44]   Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 14-17, paragraphs 69-76.
[45]    Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 17-18, paragraphs 77-80.
[46]    Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 18-19, paragraphs 81-85.
[47]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 19, paragraphs 86-88.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Periods, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
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 affirmation 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 and was forthcoming in providing his evidence. The Applicant told the Tribunal that he understood the DSP requirements.
At the outset of the Hearing the Applicant told the Tribunal that he agreed that he did not qualify for DSP at the time of his 2017 application. The Tribunal explained that if that view was accepted it would mean that the Tribunal would affirm the decision to reject his 2017 application for DSP. The Respondent agreed.
Consequently, based on the evidence before the Tribunal, the contentions of the Respondent and evidence provided by the Applicant I find that the Applicant was not qualified to receive DSP in relation to his 2017 application.
The issues before the Tribunal are subsequently narrowed to considering the Applicant’s 2018 application. In relation to his 2018 application the Applicant told the Tribunal that he agreed that his upper limb, lower limb and other conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and that these conditions could not be assigned impairment ratings. The Respondent confirmed the Applicant’s position in cross-examination. The Applicant’s concession is consistent with the Respondent’s contentions.
Consequently, based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s upper limb, lower limb and other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s back and neck 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.[48] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[49] 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.[50] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[51]
[48] Section 6(3) of the Determination.
[49] Section 6(4) of the Determination.
[50] Section 6(2) of the Determination.
[51] Section 8(1) of the Determination.
Back condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a back condition which was fully diagnosed during the 2018 application Relevant Period. This point is not in contention.[52]
[52] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 9, paragraph 49.

Dr Anthony Athanasiov, spinal surgeon, in reviewing an MRI of the Applicant’s lumbar spine on 9 January 2017 diagnosed that he had a ‘grade 2-3 lytic spondylolisthesis of L5/S1 with bony destruction of S1 and severe bilateral foraminal stenosis’ and recommended he trial L5 nerve root injections and be referred to the public sector for surgical treatment in the form of an L4-S1 decompression and fusion.[53]
[53] Exhibit 1, T Documents, T6, pages 82-83, Medical Report authored by Dr Athanasiov.
The Applicant underwent an ‘L4-S1 posterior spinal instrumentation’ on 21 July 2018 and a ‘successful redo L4-S1 posterior spinal instrumentation’ on 25 July 2017 at the Princess Alexandra hospital.[54]
[54] Exhibit 1, T Documents, T13, pages 135-138, Discharge Summary from Princess Alexandria Hospital.
The Tribunal has been provided with the clinical notes of the Applicant’s general practitioner, Dr Maria Higgins and physiotherapist, Ms Kate Surman together with a number of other medical reports and Centrelink assessments.
In a report dated 12 July 2018, Ms Surman advised that the Applicant made good improvements post-surgery although his back is aggravated by sitting or standing for prolonged periods. She noted that the Applicant was experiencing severe cervicogenic headaches and left shoulder pain post-surgery and will require long term treatment.[55]
[55] Exhibit 1, T Documents, T20, pages 165-166, Report authorised by Ms Kate Surman.
In a letter dated 2 January 2019, Dr Higgins provided:[56]
[56] Exhibit 2, Supplementary T Documents, ST1, pages 2-4, Report of Dr Maria Higgins.
I have prepared this letter as it is hoped this may expedite the consideration of my patients claim for DSP.
Condition with most impact: L4/5 Spondylolisthesis with bony destruction S1, 50% Spondylolisthesis pre operation resulting in severe bilateral foraminal stenosis and nerve impingement.
Condition fully diagnosed as of 09/01/2017 by Dr Anthony Athanasiov, Orthopaedic Spinal Surgeon.
He had an L4-S1 posterior spinal instrumentation operation (metal rods) with bone graft on 21/07/2017 at PA Hospital, Brisbane. He actually had two operations in the space of 2 weeks as first one unsuccessful. The reason for the operation was that if the spondylolisthesis got worse it could result in paralysis of the lower limbs/inability to walk in the future.
No further reasonable treatment for the condition which are likely to result in significant functional improvement in the next two years.
…..
In relation to condition 1, this patients functional impairments satisfies a rating above zero in one or more impairment tables.
Table 4 Spinal Function. There is a severe functional impact on activities involving spinal function, he is unable to turn his head or bend his neck without moving his trunk, he is unable to bend forward to pick up an object from a low table, cannot remain seated for longer than 10 minutes due to pain and stiffness, unable to put socks/shoes on himself, walks around in bare feet or thongs.
This is because the metal rods in lower spine has severely restricted his range of movement.
It is my opinion that in relation to condition 1 he will be unable to work even 15 hrs a week in any job within the next 2 years. He worked as a waiter and trained as a photographer. The spinal surgeon has told him that he cannot work in these areas in future due to heavy lifting, constant standing.
I feel he meets the criteria for 20 points in Table 4 Spinal function.
This is from the date of operation. The impairment and functional capacity is not going to improve with any further Program of Support. He had had full spinal rehab through SCUH Birtinya and it is the metal rods and screws bilateral from L4 to S1 which limit movement.
Please also note he has a very high pain threshold.
He was on high dose analgesia after the operation with terrible side effects. He developed severe gastritis, bleeding from his anus, constipation and haemorrhoids. This necessitated a colonoscopy and Upper Gi endoscopy. He now avoids analgesia if possible and relied on nonpharmacutical methods of pain management.
In response to a Legal Aid Queensland questionnaire dated 31 May 2019, Dr Higgins referred back to her more detailed letter (likely to be from 2 January 2019) and provided:[57]
[57]    Exhibit 2, Supplementary T Documents, ST3, pages 9-12, Questions for your Doctor Questionnaire completed by Dr Maria Higgins.
·The reason for referral to a multidisciplinary pain clinic would be for pain management if not controlled by exercises/meditation and simple analgesia. Pain is not the only issue it is loss of function and range of movement.
·The waiting time to access a multidisciplinary pain clinic would be greater than    12 months.
·The benefit that the Applicant is likely to experience as a result of attendance at a multidisciplinary pain clinic is that it may improve pain but not function of spine or loss of range of movement in his spine due to the metal rods.
·Attendance at a multidisciplinary pain clinic would not lead to an improvement in his functioning that would allow him to do 15 hours of work per week in any job within 2 years.
·She first formed the view that it was unlikely that reasonable treatment available to the Applicant would result in an improvement in his function that would allow him to do 15 hours of work per week in any job within 2 years in September 2017 after spinal surgery.
·The Applicant could remain seated without experiencing significant pain for          5-10 minutes.
·In the period running 10 April 2018 to 10 July 2018 the Applicant could remain seated for 5-10 minutes without experiencing significant pain and she formed this view by observation in her surgery.
·The Applicant was unable to turn his head, or bend his neck without moving his body and she formed this view by clinical observation and that this was first the case after his operation.
·The Applicant could not bend forward to pick up a light object from a desk or table without experiencing significant pain and she formed this view by observation and that this was first the case after his operation.
The Applicant contends that his back condition was fully diagnosed, fully treated and fully stabilised during the 2018 application Relevant Period and should be assigned 20 points under Table 4 of the Impairment Tables. At Hearing the Applicant told the Tribunal:
·In 2018 he could not hang out washing, could not sit or stand for 10 minutes and was still wearing a back brace at the Relevant Period.
·A pain management clinic was not mentioned during the Relevant Period, he was being treated with medication – Endone, Lyrica and Celebrex.
·He has still not been referred to a pain management clinic as his general practitioner does not think it is relevant.
·He cannot take medication due to his other conditions.
·He manages his back conditions through physiotherapy, hydrotherapy, stretching and yoga to manage the pain and tries to not do anything that will aggravate his back.
·Physiotherapy always helps and if he said no more then he would be in a wheelchair.
·If he sits for too long, then his surgery site hurts and he gets numb buttocks.
·The rods in his back limit his movement.
·He could drive around Coolum for 10 minutes then stop and stretch, if he is the passenger in the vehicle he reclines the seat.
·He had not put a pair of shoes on unassisted since before his surgeries because he cannot bend and he has lost the power in his legs.
·In relation to the descriptors for 20 points in Table 4 of the Impairment Tables that:
oHe uses a ladder to step to read things in cupboards overhead, he can wash his hair but does not.
oHe cannot turn his head, or bend his neck without moving his trunk due to sharp pains from his back.
oHe can bend forward to pick up a light object from a desk or table if the item is on the edge of the desk or table.
oHe cannot remain seated for at least 10 minutes due to the sharp pains in his back.
·He spends his day:
oAttending appointments;
oLying in bed;
oDoing exercises;
oReading; and
oWatching television.
·His camera has been in its bag since he finished Tafe.
·He lives with a housemate, they have separate groceries and he orders his groceries online or his mum helps him.
·His housemate does the cleaning.
·His mum changes the sheets on his bed.
On cross-examination, the Applicant:
·Confirmed that he had back surgery on 21 and 26 July 2017 and then went to rehabilitation at Birtinya and had physio with Kate Surman.
·Confirmed that he ceased physiotherapy around 21 June 2018 with Ms Surman due to finances as it was the end of his care plan.
·When asked if he agreed that for his condition to be fully treated he would have expected to carry on the treatment until better, he said yes and he would have if he had more sessions under his care plan, but he was not in a positon to see her privately. He said his finances should not be held against him.
·Said that physiotherapy was recommended for life.
·Said that a pain management clinic was not mentioned until the decision of the SSCSD.
·When asked if he was on pain relief in 2018, he said he was until he was admitted to hospital, after which he ceased medication. The strategy to deal with pain without medication, he advised was physiotherapy, hydrotherapy, exercises and yoga stretches.
·He agreed that to wash his hair it would require him to lift his arms up on to his head however that he does not see that this means he can do over head activities.
·When asked about clinical notes provided by Dr Higgins which indicated on 24 May 2019 that he could not move his head to the right, which could be taken to indicate he could turn his head to the left without moving his trunk, he disagreed saying that the notes did not say that and he saw Dr Higgins because of the pain on his right side.
·When asked about whether he drives a car and how he does so, he provided:
oHe drives his car but only locally.
oHe moves his trunk to check his blind spots.
oHe had blind spot mirrors.
oHis mum or a friend drove him to Bundaberg.
oIn response to Dr Higgins clinical notes in relation to him driving north with no exacerbation, he had travelled to Bundaberg a couple of times but he does not drive, he sleeps and has his seatbelt on.
oWhen he went to Brisbane for treatment his mum drove, he lay across the backseat hoping it would make the journey better.
·Confirmed that he was attending Tafe in Nambour during the 2018 application Relevant Period and that he attended once a week. He said the drive was 30 minutes without stops however he stopped every 10 minutes or sometimes more depending on how he had slept and the what activities he had undertaken the day before.
·When asked about Dr Lees letter dated 8 November 2017 in which she recommends that he is active within reason and whether undertaking such activity would require him to turn his neck he said:
oHe uses a stand-up bike, the letter did not say a street bike.
oHe does not swim he does basic exercises in waist deep water as part of hydrotherapy.
·Confirmed that he believes that his neck condition has no impact on his ability to do overhead task or to move his neck without moving his trunk as he just gets targeted pain. He said that his back stops him from turning his head because his back is fused. He said the doctor had said that it all relates, if he goes to turn his head it pulls all the way up from the surgical site and restricts him.
·He was admitted to hospital on 26 April 2018 and was told to cease taking his pain medication by the gastrologist.
·When referred to the letter of Ms Surman dated 13 April 2018 he confirmed that at that time he could move his head.
The Applicant contends that his biggest limitation is sitting for 10 minutes. He said that while he was on medication at the time of his claim and it had helped, he was told to cease taking it due to other health complications. The Applicant contends that treatment is only reasonable treatment if there is a substantial chance of improved function and his back condition is likely to deteriorate.
The Applicant contends that his back condition was fully diagnosed, fully treated and fully stabilised at the 2018 application Relevant Period and should be assigned 20 points under Table 4 of the Impairment Tables.
The Respondent contents that the Applicant’s back condition was not fully treated and fully stabilised during the 2018 application Relevant Period, as although he had undertaken the recommended spinal surgery prior to the 2018 application the Respondent noted:[58]
a. Despite having undergone the recommended surgery, the AAT1 formed the view the Applicant's back condition was still not fully treated and stabilised, indicating that "in circumstances where Mr Franklin is not taking any targeted medication, standard treatment for a spinal condition, where pain is a major factor reducing a person's function, would typically involve a multi-disciplinary pain management program" (T2, p5 at [16]).
b. Relevantly, the Applicant gave evidence to the AAT1 that he 'was initially taking Endone, Celebrex and Lyrica for pain management but ceased taking all medication because it caused him 'to feel out of it' and there was a suggestion he may have an ulcer' (T2, p4 at [13]).
c. The Applicant also advised the AAT1 that he undertook about 4 weeks of post-operative physiotherapy treatment, and planned to obtain further physiotherapy in 2019 (T2, p4 at [12]).
d. While the Applicant reported to the AAT1 that he "continues to see Ms Surman [physiotherapist] when he can afford if' (T2, p4 at [12]), Ms Surman's notes do not disclose any attendances between 20 December 2016 and 13 April 2018, at which time she recorded the Applicant as reporting that he had a spinal fusion 9 months ago and "pain not too bad but meds eases" (see ST5, pp71-74). Ms Surman's notes of attendance at and following this date refer to the Applicant's neck pain/headaches and shoulder pain, but do not indicate that further treatment was provided for lower back pain (see ST5, pp74-83).
e. In her report dated 2 January 2019, Dr Maria Higgins (GP) provided an opinion that there was no further reasonable treatments for this condition which were likely to result in significant functional improvements in the next two years (ST1, p2)
f. Dr Maria Higgins has subsequently provided evidence that attendance at a multidisciplinary pain clinic "may improve pain but not function of spine or loss of range of movement spine due to metal rods". Dr Higgins also indicated the average waiting time for a pain management clinic was more than 12 months (ST3, p10).
[58] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 10, paragraph 54.
The Respondent contends that to the extent that the Applicant continued to experience pain and functional limitations from his back condition following surgery in mid-2017, the Applicant had not undertaken reasonable treatment at the time of his 2018 application for this condition including physiotherapy, pain medication and pain management, and accordingly the condition ought not be accepted to have been fully treated and stabilised at the 2018 application Relevant Period.[59]
[59] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraph 55.
Based on the medical evidence before the Tribunal, contentions of the Respondent and evidence provided by the Tribunal I am satisfied that the Applicant’s back condition was fully diagnosed, fully treated and fully stabilised during the 2018 application Relevant Period. I accept the evidence of Dr Higgins and the Applicant in relation to the treatment he has received for this condition and that further treatment is unlikely to lead to a functional improvement in relation to this range of movement. It is clear that the Applicant ceased taking medication due to medical complications and at the recommendation of his doctors and that he has attended physiotherapy while in rehabilitation, undertakes regular home exercises and continues with physiotherapy when he can as a holistic approach to his back and neck conditions. In relation to the Applicant having not attended a pain management clinic given the nature of the Applicant’s surgery, that there is no evidence that the spinal surgeons had recommended this as appropriate treatment and given the reports provided by Dr Higgins, I am not persuaded that the Applicant’s non-attendance at a multidisciplinary pain management clinic impacts upon his back condition being fully treated and fully stablished during the 2018 application Relevant Period.
Consequently, the Applicant’s back condition can be considered permanent for the purposes of applying the Impairment Tables. Table 4 of the Impairment Tables deals with spinal function. The descriptors to be assigned an impairment rating under Table 4 are as follows:

10

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

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

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

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

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

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

20

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

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their trunk; or

(c)      bend forward to pick up a light object from a desk or table; or

(d)      remain seated for at least 10 minutes.

The Respondent contends that the Applicant does not meet the 20 point descriptor of Table 4 as he provided evidence he could wash his hair, which indicates he can perform overhead activities, and that during the 2018 application Relevant Period he could turn his head without moving his trunk and could bend forward to pick up a light object from a desk or table. Further, the Respondent contended that there is no corroborating evidence that the Applicant could not remain seated for at least 10 minutes during the 2018 application Relevant Period and that throughout the hearing he provided inconsistent evidence as to how long he could remain seated as he sometimes referred to no more than 10 minutes and at other times referred to at least 10 minutes. The Respondent also referred to Dr Higgins letter dated 2 January 2019 and response to Legal Aid Queensland questionnaire that both provide that the Applicant cannot remain seated for longer than 10 minutes rather than the Applicant being unable to remain seated for at least 10 minutes.[60]
[60] It is noted that Dr Higgin’s view in relation to the Applicant’s ability to perform overhead activities, turn or bend his neck without moving his trunk and bend forward to pick up a light object from a desk or table were contrary to the evidence provided at Hearing by the Applicant, her clinical records and other evidence.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I find that the Applicant’s back condition can be assigned a maximum of 10 impairment points under Table 4 of the Impairment Tables at the 2018 application Relevant Period. The Applicant’s main contention is that he meets the 20 point descriptor as he is unable to remain seated for at least 10 minutes. However, there is no corroborating medical evidence before the Tribunal on this point and the evidence provided by the Applicant at Hearing was also inconsistent. This may be due to the Applicant’s sitting tolerance having worsened since the 2018 application Relevant Period and it is open for the Applicant to submit a new claim for DSP at any time.
Neck condition

Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a neck condition which was fully diagnosed during the 2018 application Relevant Period. This point is not in contention.[61]
[61] Exhibit 4, Secretary’s Statement of Facts & Contentions, page 14, paragraph 69.
Dr Athanasiov, in reviewing an MRI of the Applicant’s cervical spine on 9 January 2017 diagnosed that he had a ‘C6/7disc bulge with moderate spinal canal stenosis’ and recommended C6/7 facet injections if the Applicant’s necks pain continued.[62]
[62] Exhibit 1, T Documents, T6, pages 82-83, Medical Report authored by Dr Athanasiov.
The clinical notes of Dr Higgins indicate that the Applicant had a CT guided C6/7 facet joint injection on 2 March 2017.[63] On 30 March 2017, Dr Higgins recorded that the Applicant’s neck was a little better with injections.[64]
[63] Exhibit 2, Supplementary T Documents, ST6, page 237, Clinical records from Dr Maria Higgins (General Practitioner at Coolum Beach 7 Day Doctors).
[64] Exhibit 2, Supplementary T Documents, ST6, 113, Clinical records from Dr Maria Higgins (General Practitioner at Coolum Beach 7 Day Doctors).
In a letter dated 2 January 2019, Dr Higgins opined that the Applicant’s C6/7 disc prolapse spinal cord narrowing was:[65]
fully diagnosed as of 09/01/2017 by MRI and seen by Orthopaedic surgeon Dr Athanasiov, he has completed physiotherapy with Kate Surman, Sports and Spinal physiotherapy.
[65] Exhibit 2, Supplementary T Documents, ST1, page 3, Report of Dr Maria Higgins.
The Respondent contends that the Applicant’s neck condition was not fully treated and fully stabilised at the 2018 application Relevant Period as he was still undergoing physiotherapy treatment which was at the time expected to (and did) result in an improvement to functional capacity and he was also referred for specialist investigation of this condition. The Respondent provided the following references to the medical evidence before the Tribunal in support of this contention:[66]
[66] Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 15-16, paragraphs 71-73
71. …….
a. On 10 February 2018, Dr Higgins referred the Applicant to Kate Surman (physiotherapist) for treatment of "headaches, which I feel are from c spine” (ST6, p185).
b. On 12 April 2018, Dr Higgins noted the Applicant had "lost physio letter and forgot he had to go to same"(ST6, p108).
c. The Applicant subsequently attended upon Kate Surman (physiotherapist) on 13 April 2018 (two days after lodging his 2018 DSP claim). Ms Surman reported the Applicant presented with a 12 month history of "neck pain with headaches, getting worse over past 3-4 months" and indicated she provided hands on treatment through soft tissue release, and that joint mobilisations will be crucial to help reduce pain and headaches. Due to the Applicant's limited finances, Ms Surman indicated her main focus was educating him on self-release techniques and a good home exercise program, working on upper quadrant and deep neck
control/strength (ST5, p54).
d. Ms Surman's clinical notes indicate the Applicant attended for physiotherapy treatment for his neck pain and cervicogenic headaches on 13 April 2018, 18 April 2018, 16 May 2018, 30 May 2018, and 20 June 2018 (see ST5, pp74-84). On 16 May 2018, Ms Surman indicated that strapping helped and the Applicant's neck was not too bad (ST5, p77).
e. On 21 June 2018, Kate Surman (physiotherapist) reported that "initially he had made some progress with physio with a significant reduction in head aches and no 'ice cold' feelings. Unfortunately, they returned however in reduced intensity and less frequency'. Ms Surman indicated she had given the Applicant a home exercise program targeting thoracic mobility, deep neck control and upper quadrant/postural strength which he will continue to participate in longer term. Ms Surman indicated that due to finances the Applicant was not able to continue physio this year but she was happy for him to contact her with questions (ST5, p56).
f. On 12 July 2018, Kate Surman detailed that "it has been difficult to treat Mathew fully and effectively due to his finances, only able to use the 5 EPC sessions. Despite this Mathew is very diligent with his exercises and self-management" (T20, p166 I ST5, p57).
72. The Secretary contends that the Applicant had responded well to physiotherapy treatment for his headaches and neck pain during and after the 2018 qualification period, and the records from Dr Higgins indicate that he also was referred for specialist investigation of this condition after the 2018 qualification period. The Secretary notes the following relevant evidence:
a. On 5 November 2018 Dr Higgins indicated the Applicant "still has headaches neck pain and back pain" and on 22 November 2018, Dr Higgins recorded "headaches 4-5 a day x months get MRI as we assumed this was from neck but may not be, ongoing neck pain" (ST6, p105). The Secretary notes that the Applicant had an MRI of the Brain on 23 November 2018 which raised the possibility of hydrocephalus (ST6, p144).
b. On 12 December 2018, Dr Higgins referred the Applicant to the neurology clinic of the Sunshine Coast Hospital for review of his "chronic severe headaches / neck pain / back pain" (ST6, pp142 & 396).
c. On 1 April 2019, Dr Higgins noted the Applicant was "seen by PA clinic and ? nerve damage for MRI. still on wait list for neurology clinic” (ST6, p103).
d. On 6 June 2019, Dr Higgins noted the Applicant was still under the care of the PA hospital orthopaedic spinal clinic and that they had "recently ordered new MRI scans as they fear the nerve damage is worse and they may have to reoperate or operate at a higher level of the spine" (ST6, p118).
The Applicant contends that his neck condition was fully diagnosed, fully treated and fully stabilised during the 2018 application Relevant Period and should be assigned at most 10 points under Table 4 of the Impairment Tables. At Hearing the Applicant told the Tribunal:
·He believes his neck condition was fully treated and fully stabilised during the Relevant Period because no more surgeries were planned as they would not help, he was not seeing a specialist and his management was physiotherapy and injections as needed.
·His targeted neck pain was separate from his back as he can press on pressure points and manage the pain.
·His neck condition is not serious enough to warrant any more than 10 points under Table 4 as his back condition is his major issue.
·He could drive around Coolum for 10 minutes then stop and stretch, if he is the passenger in the vehicle he reclines the seat.
The evidence set out at paragraphs 47-48 above is also applicable to the Applicant’s neck condition in relation to functional impairment.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I find that the Applicant’s neck condition was fully diagnosed at the 2018 application Relevant Period, however was not fully treated and fully stabilised. The Applicant was during this Relevant Period undergoing treatment with some success and further investigations.
Accordingly, the Applicant’s neck condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
Even if I had of been satisfied that the Applicant’s neck condition was fully diagnosed, fully treated and fully stabilised, his claim for DSP would still be unsuccessful as the appropriate impairment table to consider would be Table 4. As set out above, and based on the evidence before the Tribunal, I find that the appropriate impairment rating under Table 4 is 10 points. Where two or more conditions cause a common or combined impairment, a single rating should be assigned, impairment ratings for each condition cannot be assigned under the one impairment table.[67]
[67] Sections 10(5) and (6) of the Determination.
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 was not eligible for DSP in relation to claim for DSP he lodged on 5 April 2017 as his impairments did not attract 20 points under the Impairment Tables.
In relation to the Applicant’s claim for DSP lodged on 10 April 2018 I find that the Applicant’s:
(a)back condition was fully diagnosed, fully treated and fully stablished during the Relevant Period and could be assigned 10 points under Table 4 of the Impairment Tables;
(b)neck condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition;
(c)upper limb, lower limb and other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions; and
(d)impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........................[SGD]...............................
Associate
Dated: 26 September 2019

Date of hearing: 22 August 2019

Applicant: By phone

Advocate for the Respondent: Mr Christopher Bishop

Solicitors for the Respondent: Mills Oakley Lawyers

[2019] AATA 3904

26 September 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	22 August 2019
Applicant:	By phone
Advocate for the Respondent:	Mr Christopher Bishop
Solicitors for the Respondent:	Mills Oakley Lawyers