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

Gange and Secretary, Department of Social Services (Social services second review) [2015] AATA 886 (19 November 2015)

Division

GENERAL DIVISION

File Number

2014/3259

Re

Gregory Gange

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr Conrad Ermert, Member

Date 19 November 2015

Place Melbourne
The Tribunal affirms the reviewable decision.

.......... ...................[sgd]...........................................
Mr Conrad Ermert, Member
Catchwords
Social Security – Disability Support Pension – whether conditions fully diagnosed, treated and stabilised within the qualification period – whether conditions are permanent – whether total impairment rating is 20 points – decision affirmed.
Legislation
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Administrative Appeals Tribunal Act 1975
Social Security Act 1991
Social Security (Administration) Act 1999
REASONS FOR DECISION
Mr Conrad Ermert, Member
19 November 2015
INTRODUCTION

Mr Gange, the Applicant, is a former contract forklift driver who has not worked full time since the end of 2012 when he was made redundant. He also ran a small printing business. In April 2013 Mr Gange had a seizure which resulted in a compression fracture of his T12 vertebra.
On 4 October 2013 Mr Gange lodged a claim for Disability Support Pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. In his claim Mr Gange listed his disabilities as:
Fractured Spine, Asthma, Osteo Porosis.
On 14 November 2013 a Centrelink officer determined that Mr Gange was not qualified for DSP because his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). On 1 April 2014 a Centrelink authorised review officer (ARO) affirmed this decision. Mr Gange sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT). On 20 May 2014 the SSAT affirmed the ARO’s decision. This matter is a review of the SSAT decision.
HEARING
At the hearing Mr Gange represented himself and gave his evidence under affirmation. He was accompanied by Ms Lisa Mary Moffatt who gave evidence under affirmation for Mr Gange.
Mr Tim Noonan, a solicitor with the Department of Human Services, represented the Respondent. For the Respondent I heard evidence by telephone from Mr Craig Izzard, an exercise physiologist and the Job Capacity Assessor who prepared a report for this matter.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). I took in as evidence the Respondent’s Statement of Facts, Issues and Contentions dated 18 August 2015, together with Supplementary T-document ST1 – a Job Capacity Assessment Report dated 4 June 2015.
For Mr Gange I took in as evidence the Applicant’s Statement of Facts, Issues and Contentions dated 10 August 2015 (SFI&C) with Attachments A to N inclusive.
LEGISLATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (the Act).
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work.
A person’s impairment is assessed by reference to the Impairment Tables.
QUALIFICATION PERIOD
Sections 41 and 42 and Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act) stipulate that the date for the determination of the claim is the date of the claim. The only exception is where a person is not qualified on the date of claim but becomes qualified within 13 weeks of lodging the claim, in which case their start date is the day they become qualified.
In this case the qualification period runs from 4 October 2013, the day on which the claim was lodged, to 3 January 2014.
ISSUES
The issues are whether, during the qualification period, Mr Gange:
1.had any physical, intellectual or psychiatric impairments; and, if so
2.the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so
3.he had a continuing inability to work.
EVIDENCE
Mr Gange
In his oral evidence Mr Gange said he had an epileptic seizure on 3 or 4 April 2013 as a result of the effects of his asthma medication and stress. He was hospitalized for approximately three weeks and discharged on 25 April. He went to Centrelink for unemployment assistance and was referred to Advanced Personnel Management (APM). He applied for approximately six positions over six months, without success. In October 2013 he applied for DSP.
After the SSAT rejected his application for review of the Centrelink decision, Mr Gange sought and received assistance from Legal Aid Victoria. In October 2014 he was examined by Dr Amanda Silcock, a consultant occupational physician. Mr Gange referred to Dr Silcock’s report dated 20 February 2015 (Attachment A to his SF&C) which includes lumbosacral radiculoplexopathy as a condition from which he suffers.
Mr Gange was also examined by Dr Graeme Gonzales, a neurologist and specialist in epilepsy. Mr Gange said he had three nerve conduction tests to his right leg which revealed he had no reflex action. He said he also had two lung function tests indicating a functioning of 25 per cent at best.
Mr Noonan referred to the report by Dr Uday Seneviratne, a consultant neurologist, dated 24 June 2013 (T-documents, page 24), which records In the past, he was seen by Dr Victor Gordon at Monash Neurology for right-sided non-diabetic lumbosacral radiculoplexopathy. He was treated with methylprednisolone and he got better. Right now, he does not have any ongoing symptoms in the right leg... . Mr Noonan asked if Mr Gange agreed with this statement. Mr Gange said:
·the statement was not correct;
·Dr Seneviratne did not examine him for that and was only concerned with payment of the bill;
·he was seen by a neurosurgeon at Monash Hospital in 2010, who diagnosed plexopathy and treated it with cortisone, which reduced the inflammation and he went back to work;
·the condition recurred in 2011 which resulted in four days of hospitalization.
Mr Noonan asked Mr Gange about the report of Dr Gonzales dated 13 June 2014 (Attachment I). In his answers Mr Gange said:
·The history in the second paragraph was pretty accurate;
·He agreed with the findings in the first paragraph of the second page;
·In amplification of Opinion 4:
othe second attack occurred in March 2011, and
othe nerve conduction studies occurred in late 2014, with treatment at St Vincent’s Hospital in late January 2015.
Mr Gange described the effects of the plexopathy during the qualifying period as:
·he walks with a permanent limp which is worse when he is tired;
·he has discomfort in his right leg and pain in his lower spine;
·he cannot walk very far;
·when carrying things out of his factory he could not walk for more than 30 minutes without a rest;
·in shops he has to stop for a rest after 200 to 300 yards;
·it is not possible for him to climb stairs without a handrail; and
·there were 14 steps at his factory premises and he had to sit down at the top for a rest.
In regard to Mr Gange’s back condition Mr Noonan referred him to the report of Dr Hamilton dated 29 October 2013 (T-docs pages 67-77). Mr Gange agreed with the report which recorded:
·he had been a patient of Dr Hamilton since 2008;
·the diagnosis of the condition was Osteoporosis with T12 vertebrae wedge compression;
·current treatment was Infusion at Metabolic Bone Clinic commenced April 2013;
·future/planned treatment was Continue Monash Metabolic Bone Clinic;
·clinical features were Back Pain, Back muscle spasm, At times unable to stand; and
·impact on ability to function was Restricted lifting capacity, Slow movement, Poor endurance, tiredness.
Mr Noonan referred Mr Gange to the report dated 27 September 2013 (T-documents pages 29-30) in which Dr Shorakae recorded I would appreciate if you could organise physiotherapy referral in the community which could expedite his recovery and We will review him again in this clinic in six months … we will consider referring him to the Chronic Pain Clinic. Mr Gange said that the physiotherapy and the referrals did not occur as his priority at the time was emptying out the factory.
Mr Noonan referred to Dr Hamilton’s report dated 5 January 2014 (T-documents page 102) in which he recorded the impact of Mr Gange’s back condition as Pain on standing / sitting. Mr Gange agreed the description was a bit on the light side and did not describe the level of pain and his need to lie down to ease the pain.
Mr Noonan asked Mr Gange about his involvement in emptying the factory. Mr Gange said:
·He started to empty out the factory in April 2013 and had everything out by May or June 2014;
·The task entailed taking out of the premises:
oSteel printing benches,
oVehicle motor and gearbox,
oPrinting machines,
oComputers,
oEngraving machines,
oCraft products,
oBoxes of T-shirts,
oPallet racking,
oA refrigerator, and
oA bed and mattress.
Mr Gange said his brothers carried most of the items. He helped with boxes and carried lighter things to the car. He also drove the fork lift to move heavy items.
In regard to Mr Gange’s sinusitis, Mr Noonan referred him to the report of Mr Peter Thomson, dated 1 July 2013 (Attachment D). Mr Thomson is an ear, nose and throat specialist surgeon. His report includes I operated on Greg Gange on 13^th June 2013 … He had extensive bilateral nasal polyposis, which I removed endoscopically. … Reviewing him today, 25^th June 2013, he is very happy with the improvement in his breathing. Mr Gange agreed with the statement that he was very happy.
Mr Noonan referred to the report of Dr Vivek Malipatil dated 15 July 2014 (Attachment M) in which he recorded I have also asked him to use a regular saline rinse or nasal spray and cut back on his Nasonex use. Mr Gange agreed with the report.
Responding to questions about the treatment for his asthma condition prior to his seizure in April 2013 Mr Gange said he used nasal sprays and he would get a prescription for Prednisolone two to three times a year. He said he stopped using Prednisolone after his seizure because one of the side-effects of Prednisolone is that it can cause seizures. Mr Gange said that after his seizure his treatment was changed to an increased usage of Seretide and Rhinocort. The increase was to compensate for the removal of the Prednisolone.
Asked to describe the effects of his asthma he said he:
·gets red in the face from exertion,
·has heavy breathing all the time,
·snores a lot,
·uses a Ventolin nebuliser about once per month,
·needs to pause for breath after every few words while speaking,
·cannot tie his shoelaces without being out of breath, and
·had to move things from bench to bench and stop to draw breath while emptying out the factory.
Mr Gange could not understand why Dr Hamilton, in his report dated 5 January 2014 (T-documents page 106), included his asthma in the list of conditions that are generally well managed and cause minimal or limited impact. Mr Gange said his asthma has a major impact on his ability to function.
Referring to the emergency treatments noted in Dr Hamilton’s report also dated 5 January 2014 (T-documents page 108) Mr Gange said he was admitted to hospital in 1996 and 1998 with respiratory arrest as a result of reaction to aspirin. He said he was hospitalised also in early 2000, at which time he bought the nebuliser.
When asked about the hospitalisation on 6 December 2013 reported in his statement of 5 January 2014 (T-documents page 97) Mr Gange could not recall the incident.
Mr Noonan referred to the report of Dr Malipatil dated 15 July 2014 which records He has previously required hospital admission back in 2000 but he has never needed an intensive care admission. Mr Gange said this was not an accurate statement.
Mr Gange agreed with the following statements:
·SSAT Reasons for Decision, paragraph 45 (T-documents page 12) – He said the asthma alone reduces his ability to undertake activities in the community and that he is short of breath after walking up one flight of stairs; and
·Dr Silcock report dated 20 February 2015 (Attachment A, page 3 of 11) – He becomes short of breath if he walks up three or four steps quickly and he cannot carry anything as he struggles.
Responding to Mr Noonan’s questions about his involvement in emptying out his factory Mr Gange said:
·he would suffer discomfort depending on the time of day from climbing the 14 steps;
·he avoided going up the stairs and on some days he would just sit or lie down; and
·he would have to climb the stairs two or three times daily, more on extremely busy days.
Responding to Mr Noonan’s questions regarding the descriptors in Impairment Table 1 -Functions Requiring Physical Exertion and Stamina, Mr Gange said he:
·can walk only 300 to 400 yards before becoming out of breath,
·drives to the local shops,
·can do the household vacuuming albeit slowly,
·can use public transport once he gets to the station or bus stop,
·can walk in a supermarket but struggles and avoids it if possible,
·could perform work-related tasks requiring him to sit in front of a computer.
Mr Noonan asked Mr Gange why he had not included epilepsy in his claim for DSP. Mr Gange said that his first seizure was described only as an epileptic-style seizure. He said it was not until his second seizure in December 2013 that the condition was diagnosed as epilepsy.
In regard to his treatment for epilepsy, Mr Gange said that after his first seizure in April 2013 he was prescribed Dilantin. His prescription ran out a week before he was examined by Dr Seneviratne who told Mr Gange that he did not need to continue taking the Dilantin. Mr Gange agreed with the statement in the report of Dr Seneviratne, dated 23 September 2013, that He remains seizure free … there is no indication for antiepileptics at this stage. Mr Gange said he was receiving no treatment for epilepsy at the time of the second seizure in December 2013.
Mr Gange agreed with the following reported history of his prescribed treatment for epilepsy:
·Eastern Health Discharge Summary 30 December 2013 (T-documents page 94) – commenced on keppra 250mg bd (bi-daily) for 4 days … discharged home on antiepileptic therapy (500mg bd keppra);
·Eastern Health Discharge Summary 14 March 2014 (T-docs page 111) – Continue keppra 1g BD;
·Dr Gonzales report dated 13 June 2014 (Attachment I) – I have reduced his Keppra to 750mg twice a day and added in a small dose of Lyrica at night; and
·Dr Silcock report dated 20 February 2015 (Attachment A, page 2 of 11) – He is now taking Keppra, Lyrica and sodium valproate.
Mr Gange said the Lyrica and sodium valproate were other anti-epileptic medications which were prescribed by Dr Gonzales as a back-up to his 1000mg twice daily of Keppra. He said the changes in the dosages of Keppra were related to the changes in his weight and not related to the occurrence of his seizures.
Mr Noonan referred Mr Gange to the descriptors of impairments contained in Impairment Table 15 - Functions of Consciousness for a rating of 10 points. Mr Gange said:
·he satisfies (1)(a)(i)(A) and (B) as his seizures do not occur once per month;
·he is able to perform many activities of daily living between episodes (b);
·his private driving licence was suspended after his first seizure and suspended again for three months after his second seizure (c);
·his commercial driving licence and his licence to operate a back hoe, fork lift and other high risk vehicles were suspended; he would have to re-apply for them. However, he cannot afford the cost ; and
·he is not able to find work because employers are reluctant to employ anyone with a history of seizures (d).
Mr Noonan questioned why Mr Gange’s statement (T-documents page 113) contained no mention of his printing business. Mr Gange said he started the business in 1981 and it was performing well until competition from overseas made the business less profitable. He said he then commenced full-time work as a fork-lift operator, working only part-time in his printing business to supplement his fork lift work. He has not been able to perform his fork-lift work since his seizures in 2013. Mr Gange said the printing business still exists. His daughter helps with printing jobs and his son helps with cutting jobs.
Mr Noonan asked Mr Gange if from October 2013 to October 2015 he were to be trained in sedentary clerical work, he would have the capacity to do such work. Mr Gange said he had reservations about his capacity to do such work on a full or part-time basis. He said in January 2015 he assisted a friend for only five shifts of three to four hours, and this resulted in another seizure. He added that the probable cause of that seizure was the pungent fumes from the printing process. In regard to computer work Mr Gange said he was very good at using a particular drawing package but he cannot type and is only learning to use the Microsoft Office package.
Mr Noonan asked if Mr Gange could work for 15 hours per week if he suffered from only his back condition, asthma and sinusitis, that is, without epilepsy. Mr Gange said he would probably be able to do so, and provided he was given flexibility in his working conditions he would give it a go.
Mr Izzard
Mr Izzard stated he was a qualified exercise physiologist who advises people on post-injury rehabilitation. He confirmed that he prepared the Job Capacity Assessment Report dated 17 June 2015 (ST1) assisted by Ms Rachel Melms, a registered psychologist. Mr Izzard said that he did not examine Mr Gange, but prepared the report from the medical reports available to him.
Mr Izzard confirmed that he concluded Mr Gange’s spinal condition and sinusitis were fully diagnosed, treated and stabilised. He concluded that the conditions of epilepsy, asthma and depression were not fully diagnosed, treated and stabilised.
Mr Izzard considered the asthma was stable until the Prednisolone was withdrawn after Mr Gange had his first seizure, after which the asthma became unstable and severe. Since then alternative medication had been recommended and trialled.
Mr Izzard considered the epilepsy was not fully stabilised at the time of the claim as Mr Gange was having ongoing investigations to determine the cause and treatment of the condition.
For the asthma condition Mr Izzard recommended zero points. For the spinal condition he recommended 10 points on the basis that Mr Gange could sit and drive a car for 30 minutes but was unable to sustain overhead activities and occasionally required assistance to get out of a chair.
In regard to ability to work Mr Izzard considered that by October 2015 Mr Gange would have the capacity to work 15 to 22 hours per week with some interventions. He considered that suitable work for Mr Gange would be light administrative or transport-related duties such as a service station console operator, driver of patient transport, driver of small buses or a role in sales and customer service.

In cross-examination, Mr Gange asked Mr Izzard why the change in medications for his asthma determined that the condition was not fully stabilised. Mr Izzard said that the cessation of the Prednisolone was a trigger for the asthma becoming more severe which, in turn, led to trials of other medications and further reviews. Mr Izzard said it took time to see the results of changes. Mr Izzard stated that the condition may now be fully stabilised; however, his reported opinion related to the qualifying period.
In regard to his work suggestions, Mr Izzard conceded that at the time of preparing his report he was not aware of the licence suspensions applied after a person suffered a seizure. He agreed that this would limit the number of suitable roles which would be available to Mr Gange.
Ms Moffatt
Mr Gange asked Ms Moffatt for her opinion on his ability to work 15 hours per week in a sedentary job by the end of October 2015. Ms Moffatt said last time Mr Gange worked for a few days he had a seizure. She said that after two to three hours of work Mr Gange would be exhausted for the next few days. She said that he was improving but she could not guarantee that he would be able to perform the work.
Mr Gange asked Ms Moffatt to describe his role in the work of emptying the factory. Ms Moffatt said:
·his work was very limited as his son and daughter and some Scouts did most of the work,
·Mr Gange was not mentally stable at the time and all he would do was to sit, walk around and argue, and
·he pretty much moved nothing.
In response to questions from Mr Noonan she said:
·she had known Mr Gange for about 25 years,
·she thought Mr Gange last worked in December 2014 or January 2015 although she could not be exact about the dates, and
·the work involved Mr Gange watching over pressing and printing machines but she could not be sure.
In response to questions regarding the factory Ms Moffatt said:
·at the time the factory was being emptied she worked three days a week,
·when not at work she spent most of her time at the factory, and
·at the factory Mr Gange would mainly sit behind a computer.
SUBMISSIONS
In his submissions Mr Gange said it was not fair that Mr Izzard had discounted the report of Dr Silcock without consultation with himself. He contended Mr Izzard had not considered the affects and impacts of his epilepsy seizures such as the restrictions on his driving licences and the limitations on possible job placements. In addition, he contended that Dr Silcock’s opinions should be preferred to those of Mr Izzard who does not have the same level of medical qualifications.
Mr Gange contended that both his epilepsy and his asthma should attract 10 impairment points. His asthma has been under control since the mid1990’s. He had to cease taking Prednisolone in April 2013 but there have been no adjustments to his medication since October 2013.
In regard to his epilepsy Mr Gange said he has been taking Keppra medication since 30 December 2013 but contended that the dosage adjustments since then have been related to changes in his weight, not for investigations into his condition.
Mr Gange submitted that the reports of Dr Hamilton were sketchy. He said that the reports of Dr Seneviratne should have included the condition of plexopathy. He contended there was no treatment other than alleviating the pain. Accordingly, plexopathy should be considered to be stabilised and assigned an impairment rating of five points.
In regard to the work involved in emptying the factory Mr Gange submitted that all the heavy work was done with the use of machinery and by other people. He did as little as he could get away with.
In his oral submissions Mr Noonan contended that the plexopathy was not fully treated and stabilised in the qualifying period. In support of his contention he referred to the report of Dr Gonzales dated 13 June 2014 (Attachment I) which records in Opinion 4 it does not appear that his plexopathy has been adequately monitored for three years now … I have given him a form to get some nerve conduction studies done … . Mr Noonan submitted that Mr Gange underwent six or seven further courses of treatment.
In regard to the spinal condition, including the effects of the T12 fracture, osteoporosis, Mr Noonan submitted that an impairment rating of 10 points should be assigned. He referred to the report of Dr Silcock and the evidence of Mr Izzard and Ms Moffatt in support of this contention.
Referring to the respiratory conditions Mr Noonan contended that the sinusitis was fully treated and stabilised. In regard to the asthma, Mr Noonan submitted that it was not clear whether the withdrawal of Prednisolone and its replacement with other medications indicated other forms of treatment or were only variations of the existing treatment regime. He submitted that if the Tribunal found the asthma to be fully treated and stabilised an impairment rating of five points could be assigned.
In regard to epilepsy Mr Noonan contended that, during the qualifying period, the condition was not fully treated or stabilised. He relied on the arguments in paragraph 4.21 of the Secretary’s Statement of Facts and Contentions.
In summary, Mr Noonan contended that the only impairment ratings that can be assigned are 10 points for the back condition and five points for the respiratory condition. As the total of 15 points is less than the 20 points required by the provisions of the Act, Mr Gange is not qualified for DSP during the qualifying period.
Referring to the issue of Mr Gange’s inability to work during the two year period Mr Noonan contended that the Tribunal should prefer the opinions of the Job Capacity Assessor to those of Dr Silcock. He submitted that the opinions of Dr Silcock are vague, and it is not clear whether, in forming her opinions, she has also taken into account the conditions of plexopathy and epilepsy.
TRIBUNAL CONSIDERATIONS
The Respondent concedes, correctly in my opinion, that during the qualifying period Mr Gange had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:
·Lumbosacral Plexopathy;
·Spinal condition (includes osteoporosis, compression fracture T12 vertebra);
·Asthma, sinusitis and nasal polyps; and
·Epilepsy.
The concession is supported by the evidence and I find accordingly.
I must now determine whether Mr Gange’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.
Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is likely to persist for more than two years. Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and stabilised.
Section 6(5) of the Impairment Tables provides that for a condition to be fully diagnosed and treated by an appropriately qualified medical practitioner the following considerations apply:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
I will consider each of the conditions in turn.
Lumbosacral Plexopathy (Plexopathy)
Evidence of the diagnosis of the condition is contained in:
·the report of Dr Silcock (Attachment A) which records on page 7 of 11 that the condition was diagnosed in 2011, and
·The report of Dr Gonzales (Attachment I) which states He first developed symptoms in Sept 2010. This was diagnosed and treated at Monash Medical Centre.
Mr Noonan did not dispute that the condition was a fully diagnosed condition during the qualifying period.
From the evidence I am satisfied that, during the qualifying period, Mr Gange’s plexopathy was fully diagnosed.
In regard to the treatment for the condition, I note the evidence of Dr Gonzales. In his report dated 13 June 2014 (Attachment I) he recorded It does not appear that his plexopathy has been adequately monitored for three years now…. I have given him a form to get some nerve conduction studies done at Box Hill Hospital. In his report dated 25 June 2014 Dr Gonzales recorded He first developed symptoms in Sept 2010. This was diagnosed and treated at Monash Medical Centre. He received intravenous steroids at the time. He had a second attack the following March. This was again treated with intravenous steroids but does not appear to have been followed up since then.
In his oral evidence Mr Gange agreed with the reports of Dr Gonzales and added that the nerve conduction studies occurred in late 2014, with treatment at St Vincent’s Hospital in late January 2015.
From the evidence I find that the plexopathy was not fully treated and stabilised during the qualifying period. Accordingly, I cannot assign an impairment rating to this condition.
Spinal Condition
Mr Gange made no oral submissions regarding his spinal condition. The Applicant’s Statement of Facts, Issues and Contentions contains a submission that the condition is fully diagnosed, treated and stabilised and should be assigned an impairment rating of 10 points under Table 4 Spinal Function. Mr Noonan did not dispute that the condition warrants a rating of 10 points.
I note the evidence of Dr Silcock in her report dated 20 February 2015 (Attachment A) in which she documents the diagnosis and treatment of the spinal condition and contends that the functional impairment attracts a rating of 10 points. I note also the JCA Report dated 17 June 2015 (ST-1) which recommends a rating of 10 points.
Mr Gange said in evidence that from April 2013 to May 2014 he helped empty the factory premises of his printing business. He testified that his brothers and other helpers performed the heavy tasks and he drove the fork lift when required and carried the lighter items to the cars in the car park. He said he would put boxes on tables for a rest while carrying them out. Ms Moffatt testified that Mr Gange moved very little from the factory. She said he mainly sat at the computer.
There was no evidence, however, that Mr Gange met the requirements of Table 4 for a severe functional impact in that he was unable to:
(a)       perform any overhead activities; or
(b)       turn his head, or bend his neck, without moving his 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.
I am satisfied from the evidence that Mr Gange suffered a moderate functional impact and find accordingly. I assign an impairment rating of 10 points for this condition.
Asthma, Sinusitis and Nasal Polyps
The Applicant’s submission that the conditions of asthma, sinusitis and nasal polyps are fully diagnosed, treated and stabilised relies on the assessment of Dr Silcock in her report at Attachment A. In his oral submissions Mr Gange said there had been no adjustments to his medications since October 2013. He contended the respiratory conditions should attract a rating of 10 points.
Mr Noonan submitted it was not clear whether the withdrawal of the medication Prednisolone and its replacement with other medications constituted another form of treatment or was merely a variation to an existing treatment regime. In regard to an assessment of impairment points, Mr Noonan contended that the only corroborated evidence of the functional impact of the asthma was that provided by Dr Silcock, who assigned a rating of five points.
Both parties agree that the conditions of sinusitis and nasal polyps are fully diagnosed, treated and stabilised. The condition in contention is asthma.
In his statement dated 5 January 2014 (T-docs page 97) Mr Gange records I require more and more frequent medication for my asthma as well. I have been hospitalised for my asthma on 06-DEC. 2013. Although Mr Gange could not recall the hospitalisation incident while giving his oral evidence he did not retract his statement regarding the need for more and more frequent medication.
In evidence Mr Izzard stated that the asthma was stable until the withdrawal of Prednisolone, after which the asthma became unstable and severe. He opined that the change in medication to Serotide and Ventolin was an alternative treatment and it would take time to assess the effectiveness of the change in treatment. Under cross-examination Mr Izzard agreed that the asthma might be fully stabilised now. However, he restated his opinion that in the qualifying period the condition was not fully stabilised.
I note Dr Silcock’s report (Attachment A) in which she records under Investigations 6. 10 July 2014 lung function tests: These showed a moderately severe obstructive defect with a significant bronchodilator response. The results were consistent with poorly controlled asthma. Under the heading Fully diagnosed and fully treated Dr Silcock records Mr Gange has suffered from asthma since the 1990s and it is my understanding that he has been treated since then.
I note also the report of Dr Russell Hamilton, dated 5 January 2014 (T-documents page 108), in which he records He also has difficulty to control asthma that has resulted in emergency treatments.
Mr Gange relies on the report of Dr Silcock. I note, however, that the only comment relevant to the issue of whether the asthma is fully stabilised is the comment that the asthma was poorly controlled in July 2014. This is consistent with the January 2014 report of Dr Hamilton that Mr Gange has difficulty in controlling his asthma. Additionally, the report dated 15 July 2014 of Dr Vivek Malipatil, a respiratory and sleep physician (Attachment M), records His symptoms and lung function tests indicate suboptimally controlled asthma.
From the medical evidence available, which is consistent with Mr Gange’s own statement, I am not satisfied that the asthma was fully stabilised during the qualifying period and I find accordingly. This means I cannot assign a rating for impairment resulting from this condition.
In considering any functional impairment resulting from sinusitis and nasal polyps, absent the asthma, I note the following evidence:
(a)Health Professional Advisory Unit Advice dated 31 March 2014 (T-documents page 116) – Sinus disorder: Diagnosis and evidence of longstanding treatment is outlined within medical reports. A status of FDTS is justified. There is no recorded impairment as such impairment of 0 Table 1 is suggested; and
(b)JCA Report dated 17 June 2015 (ST-1) – the condition of sinus disorder has also been verified and assessed as fully diagnosed, treated and stabilised, however with what appears to be minimal impact, it has been assigned a rating of 0 on Table 1.
In the absence of evidence that might support a higher rating, I assign to the conditions of sinusitis and nasal polyps an impairment rating of zero points.
Epilepsy
In considering the condition of epilepsy, I had regard to the following reports:
·Dr Tran dated 9 April 2013 (T-documents, page 17) – Diagnosis - seizure, new onset … Treatment – Current: phenytoin Planned: alternative anti-epileptic;
·Dr Udaya Seneviratne, consultant neurologist, dated 24 June 2013 (T-docs, page 24) – He presents with a history of a recent seizure. This happened on 5^th April 2013 … He was taken to Dandenong Hospital … He was extensively investigated but no cause for the seizure was found … He was put on Dilantin in the hospital which he ceased about a week ago. As this is the first ever seizure with no obvious epileptogenic abnormality on the EEG and MRI, there is no strong indication for anti-epileptics … If he happens to have a second seizure, there is a strong indication to consider anti-epileptics. I will review him in early October to see how he is going ;
·Dr Sally Abell, endocrinology registrar, dated 27 August 2013 (T-documents, page 26) – Recent admission with first tonic clonic seizure in the context of significant stress and sleep deprivation. He has had ongoing follow-up with the Neurology team and they don’t feel there is any obvious underlying cause;
·Dr Russell Hamilton dated 29 September 2013 (T-documents, page 40) – conditions that are generally well managed and that cause minimal or limited impact on ability to function - epileptic like convulsion 5/4/2013;
·Dr Russell Hamilton dated 29 October 2013 (T-documents page 73) – Diagnosis - Epileptic style seizure; Current treatment – Regular reviews Monash Neurology; Past treatment – None; Future/planned treatment – Regular reviews;
·Dr Russell Hamilton letter dated 28 December 2013 (T-documents, page 92) – your patient above has been admitted as a multi day patient of Maroondah Hospital on 27 December 2013 at 12:44 PM. Your patient has been admitted with SEIZURE;
·Eastern Health Discharge Summary dated 2 January 2014 (T-documents, page 93) – seizures (generalised tonic-clonic) on morning of admission; Inpatient progress – Commenced on keppra 250mg bd for 4 days; Plan – 1. Discharged home on antiepileptic therapy (500mg bd keppra); 2. For neurology follow-up post-discharge;
·Dr Russell Hamilton dated 5 January 2014 (T-documents, page 106) – seizures/convulsions – uncertain diagnosis – unstable; see attached reports regarding ? epilepsy;
·Dr Russell Hamilton letter dated 5 January 2014 (T-documents, page 108) – He has … side effects from medication for his seizures;
·Eastern Health Discharge Summary dated 20 March 2014 (T-documents, page 110) – PRINCIPAL DIAGNOSIS Status epilepticus; Plan – Continue keppra 1g BD;
·Health Professional Advisory Unit (HPAU) Advice dated 31 March 2014 (T-docs, page 115) – I spoke briefly with Dr Hamilton on 25/3/2014 … he last saw Mr Gange on 10/3/2014. He advised Mr Gange had been admitted to ICU due to a tonic clonic seizure. He advised that he was discharged with review by the neurology team planned at seizure clinic in 3-4 weeks. … All reasonable attempts appear to have been made in respects (sic) to diagnosing and identifying the underlying cause of the seizures, thus justifying a status of FD. With regards to treatment and prognosis, the status is unclear. Dr Hamilton has confirmed a neurology review in the coming week/s following the recent episode requiring ICU. I would advise that until the outcome of the review a status of NFTS for DSP be applied. Given the recent onset of exacerbation they may trial different medications/doses in an effort to best manage seizure episodes; and
·Dr Russell Hamilton referral to Dr Gonzales dated 28 March 2014 (T-documents, page 134) – Thank you for seeing Mr Gregory Gange, age 54 yrs, for opinion and management. Presenting Problem: seizures since last December, poorly controlled.
There was no disagreement between the parties that the condition was fully diagnosed within the qualifying period. The fully diagnosed status of the condition is supported by the Health Professional Advisory Unit report, the author of which had access to the relevant medical reports and the benefit of a discussion with Dr Hamilton. From the evidence I find that epilepsy was fully diagnosed.
The Applicant’s Statement of Facts, Issues and Contentions contends that the condition should be considered as fully treated and stabilised as Mr Gange was prescribed Keppra and has remained on that medication with only modifications to the dose. The Statement submits also that there is nothing to suggest that further treatment would have been reasonable to the time or would have resulted in significant functional improvement.
Mr Noonan referred to the Respondent’s Statement of Facts and Contentions which states under the Epilepsy heading, paragraph 4.21 h) The Applicant was prescribed 500mg of Keppra upon discharge from hospital on 31 December 2013 [T18]. Prior to this, the Applicant had not been on any anti-epileptic medication to effectively treat or control his condition. As Keppra had only been trialed for less than one week prior to the end of the period in question, there is simply no evidence on which to form an opinion that, with ongoing treatment, it was at that time unlikely that the Applicant would experience significant functional improvement within the next 2 years.

In considering this issue I am conscious of the history of the condition. Mr Gange had his first seizure in April 2013. At the time, and in the absence of further seizures, he seizure was not diagnosed with epilepsy. Although initially prescribed medication, Mr Gange discontinued its use. On review Dr Seneviratne considered the incidence of one seizure did not warrant anti-epileptic medication. He opined that a second incident would indicate the need for anti-epileptic medication.
In December 2013 a second seizure did occur, following which Mr Gange was prescribed Keppra 500gm twice daily with a planned follow-up neurological review. Mr Gange did not have a follow-up review until after a further seizure in March 2014. On 5 January 2013, three days after Mr Gange’s discharge from hospital, Dr Hamilton reported his condition as unstable. This opinion was provided with full knowledge of the December seizures and the hospital treatment at the time. Dr Hamilton’s was the last medical report prepared within the qualifying period.
In summary, by the end of the qualifying period there remained outstanding treatment in the form of a neurological review. In addition, the condition was reported as being unstable, an opinion which was well founded at the time and subsequently shown to be correct. While I am constrained to determine the status of the conditions within the qualifying period, I consider the fact of Mr Gange’s seizure in March 2014 provides a validation of the opinion formed by Dr Hamilton within the qualifying period.
In his submissions Mr Gange urged me to place more weight on the findings of Dr Silcock than on those of the JCA and the HPAU. In making my finding I am relying on the reports of Dr Hamilton and Eastern Health, both of which were contemporaneous and reflect the information available to the treating doctors at the time. I consider their reports to be better evidence than that of Dr Silcock whose report was prepared one year after the events for the purposes of this claim for DSP.
From the evidence I am satisfied that within the qualifying period the epilepsy was fully diagnosed but not fully treated and stabilised and I find accordingly. As a result I am not able to assign an impairment rating to this condition.
Total Impairment Rating
For Mr Gange’s conditions at the time of qualifying period I have found the following:
(a)Lumbosacral Plexopathy – diagnosed but not fully treated and stabilised – unable to assign an impairment rating;
(b)Spinal condition (includes osteoporosis, compression fracture T12 vertebra) – moderate functional impairment – 10 impairment points;
(c)Asthma – not fully stabilised – unable to assign an impairment rating;
(d)Sinusitis and nasal polyps – minimal functional impairment - zero impairment points; and
(e)Epilepsy – diagnosed but not fully treated and stabilised – unable to assign an impairment rating.
The total impairment rating at the time of the qualifying period is 10 impairment points.
CONCLUSION
The total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act. In order to satisfy section 94(1) of the Act, all the sub-sections must be satisfied. Mr Gange does not satisfy the requirements of section 94(1)(b) of the Act. As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1).
The result is that during the qualification period Mr Gange was not qualified for DSP and I find accordingly.
This finding relates to Mr Gange’s condition at 3 January 2014. However, from the evidence I have heard, I consider that an assessment of Mr Gange’s conditions as they are now, rather than as they were in January 2014, might attract a higher rating.
Mr Gange may benefit from obtaining up-to-date medical reports and submitting them to Centrelink with a new claim for DSP.
DECISION
I affirm the reviewable decision.

111.

112. I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

...........................[sgd].......................................
Associate
Dated 19 November 2015

Date of hearing 16 October 2015

Applicant In person

Advocate for the Respondent Mr Tim Noonan, Department of Social Services

[2015] AATA 886

19 November 2015

Key Legal Topics

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Administrative Law

Statutory Interpretation

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Judicial Review

Standing

Statutory Construction

Appeal

Procedural Fairness

Division	GENERAL DIVISION
File Number	2014/3259
Re	Gregory Gange
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr Conrad Ermert, Member
Date	19 November 2015
Place	Melbourne

Date of hearing	16 October 2015
Applicant	In person
Advocate for the Respondent	Mr Tim Noonan, Department of Social Services