Harris and Secretary, Department of Social Services (Social services second review) - [2020] AATA 1304

Harris and Secretary, Department of Social Services (Social services second review) [2020] AATA 1304 (12 May 2020)
Division: GENERAL DIVISION
File Number: 2018/5504
Re:Robert Harris
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member R West
Date:12 May 2020
Place:Melbourne

The decision of the Respondent dated 22 June 2018 to cancel the Applicant’s Disability Support Pension (DSP), as affirmed by the Social Services and Child Support Division on 6 September 2018, is set aside. In substitution, the Tribunal decides that the Applicant was a person qualified for the DSP on and from 22 June 2018.
.............[sgd]....................................................
Member R West
Catchwords
Disability Support Pension – cancellation – spinal condition – urinary continence –
whether fully diagnosed, fully treated and fully stabilised – impairment ratings under Tables 3, 4 and 13 of the Impairment Tables – Applicant has a continuing inability to work – Applicant eligible at cancellation date – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Employment and Workplace Relations Legislation Amendment (Welfare To Work and Other Measures) Act 2005
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs, Re [2012] AATA 922
Covenden and Secretary, Department of Social Services, Re [2018] AATA 353
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
O’Bryan and Secretary, Department of Social Services [2014] AATA 590
Secretary, Department of Social Services and Seyfang [2016] AATA 243
Spry and Secretary, Department of Social Services & Anor [2014] AATA 722
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
REASONS FOR DECISION
Member West
12 May 2020
BACKGROUND

This matter concerns the decision to cancel the Applicant’s Disability Support Pension (DSP) and is a Second Tier Review of that decision.
The relevant history of the matter is as follows:
(a)The Applicant is 60 years old. He previously worked as a truck delivery driver. He was granted a DSP on 7 June 2000.
(b)The Applicant made enquiries about indefinite portability[1] of his DSP and as a result he was subject to a medical review. He was assessed by a Job Capacity Assessor (JCA) on 1 February 2018. The JCA report accepted that the Applicant suffered from lower back pain and kidney stones, but assessed his level of impairment at 10 points on the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and a baseline work capacity of 15-22 hours per week.
(c)On 22 June 2018 the Respondent, having regard to the JCA report, decided to cancel the Applicant’s DSP on the basis that the Applicant no longer satisfied the eligibility criteria for a DSP (Initial Decision).
(d)On 3 July 2018 an authorised review officer (ARO) affirmed the Initial Decision (ARO Decision).
(e)The Applicant sought a review of the ARO Decision by the Social Services and Child Support Division of this Tribunal (First Tier Review).
(f)On 6 September 2018 the First Tier Review affirmed the ARO Decision.
(g)On 24 September 2018 the Applicant sought a review of the First Tier Review by the General Division of this Tribunal (Second Tier Review).
[1] Indefinite portability under the Social Security Act 1991 (the Act) allows a benefit recipient to remain outside Australia for an indefinite period while continuing to receive benefits.
A hearing in relation to the Second Tier Review was held on 4 February 2020. The Applicant was represented by Ms Genevieve Wilks, a solicitor from Victorian Legal Aid. The Respondent was represented by Mr Pietro Nacion, a solicitor from Sparke Helmore Lawyers.
LEGISLATION
The Tribunal has had regard to the following relevant legislation in making its decision:
·Social Security Act 1991 (the Act);
·Social Security (Administration) Act 1999 (the Administration Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables): a determination made by the Minister under s 26(1) of the Act which came into effect on 6 December 2011;
·Social Security (Active Participation for Disability Support Pension) Determination 2014;
·Administrative Appeals Tribunal Act 1975; and
·Employment and Workplace Relations Legislation Amendment (Welfare To Work and Other Measures) Act 2005.
RELEVANT DATE
In reviewing a decision to cancel DSP, the Tribunal must assess whether the Applicant satisfied the eligibility criteria for payment under s 94 of the Act as at the date of cancellation, in this case 22 June 2018.
Evidence of the claimant’s condition subsequent to the cancellation date is not relevant, save as to the weight the Tribunal might give to competing prognostications made about the claimant’s condition at the relevant date.[2]
[2] See Re Bobera and Secretary, Department of Families, Housing, Community Services and Indigeonous Affairs [2012] AATA 992 at [34]; Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]; and Re Covenden v Secretary, Department of Social Services [2018] AATA 353 at [7].
DSP QUALIFICATION
To qualify for a DSP an applicant must satisfy the requirements set out in s 94(1) of the Act as assessed at the cancellation date.
In essence s 94(1) requires that:
·the Applicant has a physical, intellectual or psychiatric impairment; and
·the Applicant’s impairment or impairments is/are fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years; and
·the Applicant has a severe impairment (an impairment rating at least 20 points on a single Impairment Table); or
·the Applicant’s impairments together rate at least 20 points on the Impairment Tables; and
·the Applicant has a continuing inability to work, or the Secretary is satisfied that the Applicant is participating in the supported wage system.
Section 94(2) of the Act provides that a person has a continuing inability to work because of an impairment if the person has actively participated in a program of support and the impairment is of itself sufficient to prevent the person from doing any work or undertaking a training activity independently of the program of support within the next two years.
CONSIDERATION OF THE EVIDENCE AND SUBMISSIONS
In conducting the Second Tier Review the Tribunal has had regard to the documents produced by the Respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (T Documents and Supplementary T Documents), and:
·the oral evidence of the Applicant;
·the oral evidence of Dr Amanda Sillcock;
·a report of Dr Sillcock, dated 22 October 2019 (Exhibit A1);
·a supplementary report of Dr Sillcock, dated 2 February 2020 (Exhibit A2);
·a statement of Mr Robert Aron Harris, undated (Exhibit A3); and
·a statement of the Applicant, dated 31 January 2020 (Exhibit A4).
The Claim
The Applicant’s claim on review relates to the following conditions:
(a)a degenerative spinal condition; and
(b)kidney stones/urinary condition.
The Applicant confirmed at the outset of the hearing that he did not press his claim for the DSP on the basis of four additional conditions referred to in the Respondent’s submissions, namely a hip condition, pulmonary fibrosis, depression, and obstructive sleep apnoea. The Respondent noted in its submissions that these conditions were not fully diagnosed, treated or stabilised at the cancellation date.
The Applicant stated further in his written submissions that, on the available evidence, he was not entitled to indefinite portability of his DSP.
The Respondent accepted that the Applicant suffers from a physical, intellectual or psychological impairment and therefore satisfies s 94(1)(a) of the Act.
Spinal Condition
The Respondent accepts that the Applicant suffers from a long-standing degenerative back condition, diagnosed as L5 neural foramen stenosis and that this condition was fully diagnosed, treated and stabilised at the cancellation date. The Respondent initially contended that the Applicant’s co-morbid bilateral osteoarthritic hip condition, which was not diagnosed until after the cancellation date, could not satisfy any lower limb impairment resulting from the Applicant’s degenerative spinal condition. The Respondent resiled from this position in light of Dr Sillcock’s evidence, and in its final submissions the Respondent accepted that an impairment rating under Table 3 was appropriate in relation to the spinal condition.
The Respondent asserts that the appropriate rating for the impairment arising from the Applicant’s spinal condition is 0 points under Table 3 (lower limb function) and 5 points under Table 4 (spinal function) of the Impairment Tables.
The Applicant asserts that the impairment resulting from the spinal condition should attract an impairment rating of 10 points under Table 3 and 10 points under Table 4 of the Impairment Tables.
The Tribunal is satisfied, on the basis of the medical evidence, that at the cancellation date the Applicant was suffering from a spinal condition described in the radiological report of Dr Maurice Nolan dated 29 March 2017[3] as:
Fusion of L5-S1 disc… in addition there is severe bilateral L5 neural foramen stenosis secondary to loss of disc height, spurring of the vertebral margins and facet joint hypertrophic changes.
[3] T 12 at p.56.
In addition, the Tribunal is satisfied that, at the cancellation date, the spinal condition was fully diagnosed, fully treated and fully stabilised and likely to persist for more than 2 years.
The Tribunal accepts that the spinal function resulted in an impairment to the Applicant’s lower limb function and was assessable under Table 3 as well as Table 4 of the Impairment Tables.
Applicant’s Evidence
The Applicant gave evidence[4] that he first experienced back pain following a motor vehicle accident in 1985. Prior to the accident he had worked as a labourer and a truck driver. After the accident he continued to drive trucks but the lifting and sitting became too much for him and he started working as a gardener. He first received the DSP in 2000.
[4] Exhibit A4.
The Applicant described his condition in June 2018. He said he had used a walking stick on and off since 2014. He later corrected this to 2000. He said he did not use the walking stick inside his home, but kept it in his car and used it if he needed to walk more than 100 metres, or if he had to cross an unknown surface or use stairs. He said he could walk for 30 minutes if he took a few breaks. He said he could climb stairs with difficulty and that descending was more difficult than ascending.
The Applicant said he had constant pain which fluctuated in intensity. He said he had learned what he could and could not do to manage his pain. He said the pain was worse in the mornings after getting out of bed and after sitting for long periods.
The Applicant said that on good days he was able to operate a lawn mower in his gardening business. He said that he mowed lawns for his clients two or three times per week except in the winter. This involved him wheeling the mower onto a flat-bed trailer using a light ramp in order to transport it to and from his work sites. He said his son assisted him at home to load and unload the trailer when he was unable to do it himself. He also said he undertook the spraying of weeds using a 100 litre tank on his trailer and a hand held spray. He said he occasionally undertook hand weeding, mainly of his own garden, but he did so by lying down rather than kneeling.
The Applicant said that he rode a motorcycle prior to the cancellation date, but in cross examination he conceded that this continued after the cancellation date. He said he was able to ride up to 16 kms, but he needed to take a three to four hours’ rest to recover afterwards. He said that the bike he rode was a heavy road bike which allowed him to sit reasonably upright as he rode.
The Applicant said that he was able to use public transport although he tries to avoid doing so as the jerky movement can cause him pain in his back. He gave evidence that he had travelled to the hearing by bus and V-line train, and then by walking for around 15-20 minutes. He also acknowledged that he used the metro system when visiting his brother in Russia, which he described as being a smoother ride than on trains in Melbourne.
The Applicant gave evidence that he travelled to Russia in 2016, 2017 and 2018 to visit his brother who is married to a Russian and lives near Moscow. He said that he travels there in the northern summer as the climate is better for him than the Victorian winters. He said that he travelled alone to Russia on each occasion.
Each flight to Russia was of around 10 to 11 hours duration in total with a transit stopover en route. He packed his own suitcase, caught a taxi to the airport, checked in himself, walked through immigration control to the departure gate and boarded the plane unaided. He said that he stowed his hand luggage under his seat or sought assistance from the flight crew to stow it in an overhead locker. He said that he suffered from stiffness and pain while sitting which he relieved by taking panadeine forte and standing and walking around the cabin intermittently. Upon arrival he disembarked without assistance, walked through immigration control and customs and collected his own suitcases from the luggage carousel. He said he was collected by his brother from the airport and was driven for about one hour to his brother’s house by car.
The Applicant said that while in Russia he used taxis and minibuses as well as the metro. He said that he could use an escalator. He described his participation in walking tours in St Petersburg of the Hermitage (an all day tour) and Peterhof Canal, but said that on each tour he walked very slowly and had trouble keeping up with the tour group and eventually got left behind.
The Applicant said that he lived independently and looked after himself. He said he does his own laundry using a front-loading washing machine although he kneels down to load and unload the machine and transfer washing to the dryer which is located above the washing machine. He said he washes his own dishes by hand but following a chiropractor’s advice he stands at an angle to the sink to minimise bending. He does his own shopping. He said he drives about 1 to 1.3 km to the supermarket and uses a trolley or carries his shopping in a bag if he only has a small number of items.
The Applicant gave evidence that he could bend to pick up a piece of paper at table height, but unless he was having a good day, he needed to kneel down to pick up objects below knee height. He demonstrated kneeling to pick up an object from the floor by steadying himself against a fixed object.
The evidence of the Applicant as to his level of impairment was also corroborated to some extent by the evidence of his son Mr Robert Aron Harris in his written statement[5]. He stated that the Applicant struggles to walk and get up at times and that he often requires assistance in loading and unloading his work vehicle, although his evidence was limited to what occurred at home not at the Applicant’s work sites.
[5] Exhibit A3.
In making an assessment under both Tables 3 and 4 of the Impairment Tables, the Tribunal is mindful that self-reporting of symptoms alone is not sufficient. The Applicant relied primarily on the medical evidence of Dr Amanda Sillcock, an occupational physician, Dr Donald Yiap, his general practitioner, and Dr Michael Johnson, an orthopedic surgeon.
Dr Yiap reported on 31 March 2017 in relation to the Applicant’s spinal condition that: back pain constant, legs feel weak, has to stop after 100 metres due to left sciatica, cannot bend, lift or thrust as back pain gets worse[6]. However, the Tribunal gives this report little weight. The report was prepared over 12 months before the cancellation date. It is a brief report which is not sufficiently specific to enable a proper consideration of the specific criteria in Tables 3 and 4. The T Documents include a Record of Additional Medical Evidence form dated 29 May 2018[7] (only one month before the cancellation date), which notes that Dr Yiap last saw the Applicant in October 2017, but not in relation to his back condition. On the form it is stated that Dr Yiap had not done any recent assessment of the Applicant at that time and could not answer questions about his current level of functioning. This report effectively negates the report of 31 March 2017 in so far as an assessment at the cancellation date is concerned.
[6] ST1 at p.2.
[7] T15 at p.67.
Table 3 – Lower Limb Function
The Applicant’s evidence established that at the cancellation date he could mobilise effectively with the use of a walking stick, but had some difficulty walking to local facilities, walking around a supermarket without a rest and climbing stairs.
The report of Dr Johnson of 22 September 2018[8], upon which the Applicant relies, casts no real light on the extent of the impairment to the Applicant’s lower limb function at the cancellation date. The report notes that there is no evidence of spinal stenosis or nerve root compression at any level and Dr Johnson opines that the cause of the Applicant’s symptoms and disability are uncertain. While the report does note some degenerative change evident on an MRI scan, the report is not definitive regarding the source or extent of the Applicant’s condition. However, Dr Johnson stated in his report of 29 July 2018[9] that the Applicant’s range of thoracic-lumbar movement was 30% of normal when he examined him on 24 July 2018.
[8] ST12 at p.23.
[9] ST10 at p.21.
In her report of 22 October 2019[10] Dr Sillcock assesses the extent of the Applicant’s impairment as 10 points under Table 3[11].
[10] Exhibit A1.
[11] In her subsequent report of 2 February 2020 (Exhibit A2) Dr Sillcock confirmed her assessment having reviewed additional reports.
In relation to the descriptor in criterion (1)(a) of Table 3: is unable to walk far outside their home, Dr Sillcock noted that the Applicant has difficulty walking very far and has to use a stick. This is at odds with the Applicant’s evidence that he could walk for around 20-30 minutes with rests and that he participated in walking tours in Russia. Rule 9 of the Impairment Tables requires a person’s impairment to be assessed when the person uses any aid or equipment that the person usually uses. In the Applicant’s case, this means he is to be assessed when using his walking stick. Dr Sillcock’s assessment also misapplies the test in Table 3 in that a person having difficulties in walking does not establish that they are unable to walk outside their home.
Dr Sillcock assessed that the Applicant met the descriptor for criterion (1)(b) of Table 3: is unable to use stairs or steps without assistance. There is no evidence that the Applicant required the assistance of another person[12] to use stairs or steps. Dr Sillcock acknowledged this in her oral evidence. Dr Sillcock observed that the Applicant has great difficulty with steps and avoids them where possible. However, Rule 6(1) of the Impairment Tables requires the Tribunal to assess an impairment based on what the person can do, not what they choose to do. The Applicant’s evidence was that he was okay going up stairs but when he descends, he experiences pain and has to steady himself by holding onto the wall or balustrade and walking sideways[13].
[12] See O’Bryan and Secretary, Department of Social Services [2014] AATA 590, Spry and Secretary, Department of Social Services & Anor [2014] AATA 722; and Secretary, Department of Social Services and Seyfang [2016] AATA 243.
[13] Exhibit A4 at [26].

Dr Sillcock also relied on her understanding that the Applicant could use a car but not public transport. This observation is contrary to the Applicant’s evidence. He said that he was able to use public transport, although he preferred not to because of the risk from jerky movements.
The Applicant’s evidence did not establish that he was unable to stand for more than five minutes, or that he required the assistance of aids such as a wheelchair, quad stick, crutches or a walking frame.
Accordingly, the Tribunal is satisfied that a rating of 10 points under Table 3 is not warranted.
The evidence does establish that the Applicant had some difficulty walking to local facilities and around a supermarket and that in order to mobilise effectively the Applicant needed the use of a walking stick. On this basis the Tribunal assesses the functional impact of the Applicant’s lower limb function as mild and attracts a rating of 5 points under Table 3.
Table 4 – Spinal Function
The Applicant submitted that the impairment rating for the Applicant’s spinal condition must be assessed having regard to Rule 11(3) which provides that a descriptor only applies if the person can do an activity normally and on a repetitive or habitual basis and not only once or rarely. The Applicant pointed to his evidence that he suffered pain, numbness and fatigue as a result of the activities he described. These symptoms fluctuated. The Applicant said that he had good days and bad days. Assessing the Applicant’s evidence as a whole, the Tribunal is satisfied that, notwithstanding some fluctuating pain, numbness and fatigue, the Applicant’s evidence described activities that he performed normally and on a repetitive basis and were assessable under the relevant Tables.
The Applicant’s evidence did not establish that he could not turn his trunk from side to side or turn his head to look sideways or upwards. He did not claim to have difficulty with activities above his head or in bending to knee level and straightening up again or in turning his trunk or moving his head. His evidence was that he could ride a motorcycle, travel unassisted on long flights to Russia, carry out household tasks and perform his work as a gardener, including loading and unloading his mower to a trailer and mowing lawns.
Dr Sillcock assessed the Applicant’s functional impairment under Table 4 as attracting a rating of 10 points, based on her assessment that the Applicant met criterion (1)(c) that he was unable to bend forward to pick up a light object placed at knee height. She based this on her observation that he experienced difficulty bending and has moderately reduced spinal movement in all directions. Dr Sillcock acknowledged in her oral evidence that she had not specifically tested the Applicant during her consultation with him. She also acknowledged that at the time of her assessment she was unaware of significant factual matters including the Applicant’s activities while in Russia, the extent of his gardening business and the use of his motorcycle. She conceded that her assessment of the extent of the Applicant’s ability to bend was not certain given these matters.
The Respondent acknowledged that Dr Johnson’s opinion on examination[14] that the Applicant’s range of thoracic-lumbar movement was 30% of normal is consistent with the Applicant satisfying criterion (1)(c) for 10 points under Table 4. However, the Respondent argued that Dr Johnson likely saw the Applicant when he was experiencing an episode of back pain and that the totality of the evidence is not consistent with a continuing 30% range of movement in the thoracolumbar spine.
[14] ST10 at p.21.
Dr Johnson examined the Applicant in July 2018, within a month of the cancellation date. There is no indication in his report that the Applicant was suffering an abnormal episode of heightened pain or limited movement. Dr Johnson’s assessment is based on an examination of the Applicant and had reference to a CT scan which noted spontaneous fusion of the lumbo-sacral level and severe bilateral L5 foraminal stenosis.
The Applicant did not expressly state in his evidence that he could not bend forward to pick up a light object placed at knee height. He did say that he could pick up a piece of paper from a desk or table but it was also clear that he could not bend to pick up an object from the floor. In giving his evidence he demonstrated how he reached to the floor, for example to tie his shoe laces, by kneeling and steadying himself against a fixed object. The Applicant gave evidence indirectly related to his ability to bend to pick up an object at knee level. He said that he could operate a lawn mower (which required some bending), could ride a motor cycle (requiring some forward bending) and could wash his own dishes by hand (involving some bending over a sink, although minimised by standing at an angle). In relation to each of these matters the Applicant gave evidence that his movements were compromised and he had learned to make adjustments to minimise his pain.
Having regard to the evidence as a whole, the Tribunal is not satisfied that it can discount the opinion of Dr Johnson. While the assessment of Dr Sillcock is somewhat equivocal, the Tribunal is satisfied, on the balance of probabilities, that the Applicant had a moderate functional impairment rating 10 points under Table 4.
Accordingly, the Tribunal finds that the appropriate rating for the impairment arising from the Applicant’s spinal condition under Table 3 – Lower Limb Function is 5 points and under Table 4 – Spinal Function is 10 points.
Urinary Condition
The Respondent initially accepted that the Applicant was diagnosed with a urinary condition and that this condition was fully treated and stabilised at the cancellation date. However, in the Respondent’s final submissions it was asserted that the Applicant’s urinary condition, while fully diagnosed, was not fully treated or fully stabilised at the cancellation date.
The Respondent’s assertion was based on the following:
(a)Mr Shekib Shahbaz, a urologist reported on 29 January 2018[15] that the Applicant’s predominant symptoms were frequency and urgency with normal urinary stream and no hesitancy or intermittency. The presence of a kidney stone was noted based on a CT scan. Mr Shahbaz recommended extracorporeal shock wave lithotripsy (ESWL) and a diagnostic flexible cystoscopy.
(b)The cystoscopy was carried out on 7 March 2018 and Dr Sameer Dave reported[16] that the Applicant would be referred to a urodynamic clinic in two to three months. Dr Dave also noted that the Applicant does not want to try meds yet.
(c)ESWL procedures were conducted on 8 March 2018 and 10 May 2018[17].
(d)On 29 July 2018 Dr Johnson opined[18] that it would be reasonable for the Applicant to have an MRI scan performed in relation to his bladder and bowel incontinence.
(e)On 17 October 2018 Dr Johnson[19] recommended the Applicant obtain a neurological opinion, although this was related to spasms and numbness in his legs.
(f)On 6 December 2018 Mr Shahbaz reviewed the Applicant post-ESWL treatment and noted that the kidney stones persisted and recommended only further surveillance[20].
(g)The Applicant gave evidence that he went to a urologist but once they found the kidney stone, they stopped searching for the cause of his incontinence[21].
(h)Dr Sillcock noted in her supplementary report of 2 February 2020 that there was no specific cause found for the Applicant’s incontinence[22]. In her oral evidence she opined that kidney stone pathology was not the cause of the Applicant’s incontinence issues and the actual cause had not been found.
(i)The Applicant gave evidence at the hearing that Dr Yiap had referred him to a urologist after the cancellation date regarding his incontinence issues but he had not seen the urologist.
[15] ST3 at p.12.
[16] ST5 at p.14-15.
[17] See ST7 and ST8.
[18] ST10 at p.21.
[19] ST13 at p.24.
[20] ST15 at p.26.
[21] Exhibit A4 at [32].
[22] Exhibit A2.
Dr Sillcock’s report of 22 October 2019[23] notes in the Applicant’s history that he had urinary incontinence for several years which had become progressively worse over the years and included occasional bowel incontinence as well.
[23] Exhibit A1.
The Applicant’s evidence was that he managed his urinary condition as best he could by limiting his intake of food and drink. He stated that as soon as I go from horizontal to vertical, I got to go. He said in his oral evidence that he had experienced leaking and has episodes of incontinence, sometimes none but at worst two or three episodes per day. He said he experiences urgency and frequency in relation to urination and occasional bowel incontinence.
The Tribunal accepts that the Applicant’s incontinence was of long standing. The clinical notes of Dr Yiap confirm that the Applicant had suffered from bowel and urinary incontinence since about 2007[24]. The condition was diagnosed by Mr Shahbaz in January 2018 and a cystoscopy was conducted to investigate the possible causes. The Tribunal is also satisfied that the incontinence was not caused by the Applicant’s kidney stones, although there may have been a relationship between the reduced fluid intake by the Applicant to control his incontinence and the development of the kidney stones[25].
[24] See ST25.
[25] Exhibit A1.
The Tribunal is satisfied that apart from the cystoscopy conducted in March 2018 there is no evidence that the Applicant had received any treatment for his incontinence at the cancellation date. There is no evidence that the Applicant attended a urodynamic clinic as recommended by Dr Dave following the cystoscopy, or that the Applicant had been prescribed any medication for his incontinence. There is no evidence that the Applicant had an MRI scan in relation to his bladder and bowel incontinence as recommended by Dr Johnson in July 2018[26]. The fact that Dr Yiap referred the Applicant to a urologist after the cancellation date indicates that he thought the condition required further specialist investigation and possible treatment.
[26] Dr Johnson’s report of 22 September 2018 (ST12) notes that an MRI of the Applicant’s lumbar spine was performed.
Dr Sillcock opined that there was no point in further investigation and what the Applicant now required was proper management of the condition.
Having regard to this evidence, the Tribunal is satisfied that the Applicant’s continence condition was fully diagnosed at the cancellation date, but the cause of the condition had not been found. Apart from a diagnostic cystoscopy, the Applicant had received no treatment for the condition and has relied on self-management, primarily by limiting his intake of food and fluids, possibly contributing to the development of kidney stones.
For the purpose of paragraph 6(4)(c) and subsection 11(4) of the Impairment Tables, in order to be satisfied that the Applicant’s continence condition was fully stabilised at the cancellation date, the Tribunal must be satisfied that the Applicant has undertaken reasonable treatment for the condition and that any further reasonable treatment is unlikely to result in significant improvement to a level enabling him to undertake work in the next two years. Reasonable treatment is defined in paragraph 6(7).
The evidence establishes that the Applicant was not receiving any treatment for his condition at the cancellation date, other than his own self-management. There is no evidence that the steps the Applicant was taking to manage his condition were guided by medical opinion. He was not taking prescribed medication and the limitations he had placed on the intake of food and fluids to control his incontinence could well have contributed to the development of his kidney stones.
On the other hand, it is not established by the Respondent that there was treatment available at the cancellation date which would meet the definition of reasonable treatment as defined in paragraph 6(7). The Respondent points to the suggestion of Dr Dave that the Applicant consider attending a urodynamic clinic or that he see a urologist again as referred by Dr Yiap. In Dr Sillcock’s opinion there was nothing to gain by taking these steps. Similarly, the Respondent does not identify any medication that is available to address the Applicant’s symptoms. In these circumstances, it is reasonable to conclude that there is nothing further that can be done to treat the Applicant’s continence condition other than for him to manage the condition as best he can, and on that basis the condition was fully stabilised and fully treated at the cancellation date.
In the absence of evidence that there is available reasonable treatment that could have been undertaken by the Applicant, the Tribunal is not prepared to conclude that the Applicant’s condition was not fully treated and fully stabilised at the cancellation date.
Dr Sillcock assessed the impairment rating for the Applicant’s continence function as 10 points under Table 13. This was based on her assessment that the Applicant had:
(a)minor leakage from bladder (eg, a small amount of urine when coughing or sneezing) several times each day; and
(b)difficulties that result in interruptions to tasks, work or training on most days.
The Tribunal notes that the JCA report of 15 June 2018[27] assessed the impairment rating for the Applicant’s urinary condition at 0 points under Table 1.
[27] T16 at p.72.
The Tribunal accepts that the appropriate Table to assess the Applicant’s condition is Table 13 which specifically deals with the continence function.
The Tribunal does not accept Dr Sillcock’s assessment.
First, her assessment of the extent of the Applicant’s symptoms does not accord with the Applicant’s own evidence. He did not give evidence that this interrupted the performance of his work as a gardening contractor or the performance of other tasks. The Applicant’s evidence overall does not suggest that he has a functional impairment as serious as Dr Sillcock suggests. The Applicant was able to perform his work as a gardener, ride a motor cycle for up to 16 km, travel by plane to Russia and participate in walking tours.
Secondly, her assessment does not accord with the observations of the Applicant’s treating doctors. Mr Shahbaz reported on 29 January 2018[28] that the Applicant’s predominant symptoms were frequency and urgency and he noted that the Applicant had a normal urinary stream with no hesitancy or intermittence. Outpatient referral notes from Monash Health dated 7 March 2018[29] note urgency and urge, nocturia 2-3 times/night. Dr Yiap reported on 31 March 2017[30] that the Applicant’s condition is generally well managed and causes minimal and limited impact on his ability to function. His clinical notes of 5 February 2019 record no incontinence[31]. Dr Sillcock interpreted this reference in Dr Yiap’s notes to bowel incontinence.
[28] ST3 at p.12.
[29] ST4 at P.13.
[30] ST1 at p.9.
[31] ST23 at p.53.
Thirdly, Dr Sillcock acknowledged in her oral evidence that her assessment of the extent of the Applicant’s minor leakage was based on her impression as she did not document the actual number of occurrences. Her patient history does not include any such detail.
Having regard to all of this evidence, the Tribunal is satisfied that the Applicant’s condition satisfies at least one of the criteria for a mild functional impairment under Table 13, namely that he has urgency or has occasional loss of bladder control. The Tribunal is not satisfied that the condition meets the criteria for a moderate functional impact. The Applicant did not use any incontinence aids – paragraph (4). There is no evidence that his claim of occasional bowel incontinence meets the description for a moderate bowel condition in the relevant table – paragraph (3). For the reasons set out above the Tribunal does not accept Dr Sillcock’s assessment that paragraph (2) of the relevant table dealing with bladder incontinence is appropriate.
Accordingly, the Tribunal finds that the Applicant’s urinary condition attracts an impairment rating of 5 under Table 13 of the Impairment Tables
CONCLUSION
The Applicant’s conditions together attract a combined rating of 20 points under the Impairment Tables – 5 points under Table 3, 10 points under Table 4 and 5 points under Table 13. The Tribunal finds that the Applicant satisfied the requirements of s 94(1)(b) of the Act at the cancellation date.
The Tribunal notes the Respondent’s concession that the Applicant had a continuing inability to work as assessed under the 30 hour per week test that applied prior to the changes made to the definition of work by the Employment and Workplace Relations legislation Amendment (Welfare To Work and Other Measures) Act 2005, and on this basis the Tribunal finds that the Applicant satisfied the requirements of s 94(1)(c)(i) of the Act.
Accordingly, the Applicant was eligible for the DSP at the cancellation date.
DECISION
The decision of the Respondent dated 22 June 2018 to cancel the Applicant’s DSP, as affirmed by the Social Services and Child Support Division dated 6 September 2018, is set aside. In substitution, the Tribunal decides that the Applicant was a person qualified for the DSP on and from 22 June 2018.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member Richard West

.............[sgd].........................
Associate
Dated: 12 May 2020

Date of hearing:

4 February 2020

Advocate for the Applicant:

Ms Genevieve Wilks

Solicitors for the Applicant:

Advocate for the Respondent

Solicitors for the Respondent:

Victoria Legal Aid

Mr Pietro Nacion

Sparke Helmore Lawyers