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

Hillan and Secretary, Department of Social Services (Social services second review) [2019] AATA 1589 (2 July 2019)
Division:GENERAL DIVISION
File Number: 2018/1326
Re:Timothy Hillan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:02 July 2019
Place:Brisbane

The decision under review is affirmed.
............................[SGD]............................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
02 July 2019
INTRODUCTION

On 8 May 2017, Mr Timothy Hillan (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T44, pages 166-195, Claim for DSP.
The claim was rejected on 24 June 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 19 December 2017.[3]
[2] Exhibit 1, T Documents, T47, pages 212-213, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T55, pages 239-247, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on

21 February 2018.[4]
[4] Exhibit 1, T Documents, T2, pages 3-6, 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 dated 12 March 2018.[5]
[5] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 26 November 2018, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence by telephone.
On 23 May 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[6] so that the matter would be determined by Member Mitchell. On 30 May 2019, a Directions Hearing was held. The parties did not wish to make further submissions.
[6] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s DSP claim form[7] he lists the following disabilities, illnesses or injuries:[8]
·Asperger’s syndrome
·Panic disorder and anxiety/major depression
·Degenerative disease of cervical thoracic and lumbar spine
·Atrial fibrillation
·Hypertension
·Sleep apnoea
·Pulmonary obstructive disease
[7] Exhibit 1, T Documents, T44, pages 166-195, DSP claim form.
[8] Exhibit 1, T Documents, T44, page 191, DSP claim form.
On 21 June 2017, an Assessor, whose professional discipline is listed as Registered Psychologist, with input from an Accredited Exercise Physiologist, reviewed the Applicant’s DSP application and supporting material and undertook a Job Capacity Assessment (JCA). A JCA Report was produced with the Assessor concluding that none of the Applicant’s medical conditions attracted any points under the Impairment Tables.[9]
[9] Exhibit 1, T Documents, T46, pages 199-211, JCA Report.
A decision was made to reject the Applicant’s DSP application on 24 June 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[10]
[10] Exhibit 1, T Documents, T47, pages 212-213, Centrelink Notice: Rejection of DSP claim.
The Applicant sought review of the decision and provided further medical evidence.
On 1 December 2017, an Assessor, whose professional discipline is listed as Rehabilitation Counsellor, reviewed the Applicant’s claim and completed an Assessment Services Recommendation for Disability Support Pension medical eligibility review. The Assessor recommended the Applicant’s DSP claim be rejected based on a current and valid assessment (referring to the 21 June 2017 JCA Report).[11]
[11] Exhibit 1, T Documents, T53, pages 235-237, Assessment Services Recommendation for Disability Support Pension medical eligibility.
On 19 December 2017, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[12]
[12] Exhibit 1, T Documents, T55, pages 239-247, Authorised Review Officer Decision and Notes.
·On 8 May 2017 you claimed DSP for medical conditions: Spinal Disorder – Severe Degenerative Spondylosis, Ischaemic Heart Disease, Hypertension, Sleep Apnoea, Morbid Obesity, Diabetes – Non Insulin Dependent, Chronic Obstructive Pulmonary Disease and Anxiety/Depression.
·Your claim was rejected by the department and you requested further review of this decision.
·The department accepted that your Ischaemic Heart Disease and Hypertension were permanent. Both conditions were rated zero points under DSP Impairment Table 1 – Functions Requiring Physical Exertion and Stamina.
·Your Spinal Disorder, Sleep Apnoea, Diabetes and Chronic Obstructive Pulmonary Disease were all considered to be fully diagnosed, but they were not rated on the DSP Impairment Tables because of a determination they were not fully treated and stabilised.
·Your Anxiety/Depression was not rated on the DSP Impairment tables because of a determination that it is not fully diagnosed, treated and stabilised.
·Your total impairment rating is zero points.
·You were assessed as having a temporary work capacity of 0 - 7 hours per week until 22 January 2018 increasing to 15 - 22 hours per week within two years with medical intervention and assistance.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
·You have not met a Program of Support requirement.
The Applicant provided further medical evidence and on 22 December 2017, he sought review of the DSP refusal decision by the SSCSD.[13] On 21 February 2018, the SSCSD affirmed the decision under review.[14]
[13] Exhibit 1, T Documents, T56, pages 248-249, Referral to Social Services & Child Support Division.
[14] Exhibit 1, T Documents, T2, pages 3-6, 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 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
(a)Does the Applicant have a physical, intellectual or psychiatric impairment;[15]
(b)Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and
(c)Does the Applicant have a continuing inability to work?[17]
[15]    Section 94(1)(a) of the Act.
[16]    Section 94(1)(b) of the Act.
[17]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[20]
[18]    Section 6(1) of the Determination.
[19]    Section 6(2) of the Determination.
[20]    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.[21]
[21] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[22]
(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.
[22] 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.[23]
[23] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[24]
(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.
[24] 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.[25]
[25] 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; then identify the correct impairment rating.[26] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] 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.[28]
[26]    Section 10 of the Determination.
[27]    Sections 10(3) and (4) of the Determination.
[28]    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.[29]
[29] 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.[30]
[30] 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.[31]
[31] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside the Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[32]
[32] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 8 May 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 8 August 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Respondent considers the Applicant’s impairments include: heart condition (atrial fibrillation);[34] back condition;[35] anxiety and depression;[36] autism spectrum disorder;[37] hypertension and diabetes;[38] and obesity and obstructive sleep apnoea.[39]
[33]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 4, paragraph 25.
[34]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6-7, paragraphs 36-39.
[35]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-10, paragraphs 40-44.
[36]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10-12, paragraphs 45-51.
[37]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 12-14, paragraphs 52-60.
[38]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 14, paragraphs 61-62.
[39]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 14-15, paragraphs 63-67.
The remaining issues for the Tribunal to consider are:
(a)Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
(b)If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
The Tribunal has before it in this matter:
·Exhibit 1 – section 37 T Documents (pages 1-285);
·Exhibit 2 – Secretary’s Statement of Facts, Issues & Contentions dated                   8 November 2018, and corresponding attachments;
·Exhibit 3 – Letter from Jourdan Steinhardt, Dietician dated 17 March 2018;
·Exhibit 4 – Letter from Dr Joseph O’Callaghan, Rheumatologist dated  2 March 2018;
·Exhibit 5 – Questionnaire completed by Mr Greg Jones, Psychologist dated        23 April 2018;
·Exhibit 6 – Letter from Dr Amitava Sarkar, Consulting Psychiatrist dated               31 October 2018; and
·Transcript of Proceedings – Hearing by telephone conducted on   26 November 2018.
The transcript of the Hearing shows that the Applicant had difficulty reading and processing information and as a consequence he was unable to recall specifics of when he received medical treatment or full details of what medical practitioners had told him in relation to his conditions. The Applicant expressed that he has what it is the doctors say his has, and showed a level of disappointment and frustration of not being well enough to work.[40] The Applicant told the Tribunal:[41]
“And I’ve been to the AAT, which I’m not saying too much about, but I’ve been to them. I’ve been to the Legal Aid, which I’m not saying too much about. I’ve tried – like, I’m not here to lie to someone.
All I’m wanting to be diagnosed properly and told that I have my condition.”
[40] Transcript, pages 1- 34.
[41] Transcript, page 27.
At Hearing, the Applicant told the Tribunal:
·He had worked as a concreter for 36 years. He finished his last job as a concreter in 2015, when after 15 and a half years he was put off because he could no longer do the job because of his health.[42]
[42]    Transcript, page 7.
·His anxiety makes him get sick in the stomach and dizzy.[43]
[43]    Transcript, page 8.
·He cannot do anything for more than 5-minutes at home, he has to lay down or stop doing what he is doing and walking is not good. He can sit for a little while but then has to get up to straighten his body and have the blood flow back through. He is unable to clean his house like he use to and has trouble cooking as he needs to sit down after standing for 5-minutes.[44]
·He has trained his body not to think of the pain.[45]
·His arthritis is getting worse each day, but he cannot take medicine for it at all because he is taking blood thinners and he would prefer to have the pain then end up having a stroke.[46]
·His heart rate goes up to about 200 beats a minute and if it goes for more than half an hour, he takes some medication and it then takes about 4 or 5 days to come back to normal as it [the medication] wears his body out. He takes a tablet to get his heart beat to come back to normal. This does not happen every day and stress brings it on.[47]
·He has a sleep apnoea machine but he cannot use it as it feels like he has an allergic reaction at night.[48]
·He is on a dietary program for his weight. He put on weight from not working, he is losing weight, it is just going slowly.[49]
·When he goes shopping he leans on a trolley to walk.[50]
·He finds himself wanting to be by himself more. He feels that if people get too close to him at the supermarket they are invading his space. He gets agitated. He was told he could get a cleaner in however he could not handle having someone in his house.[51]
·He has bought a little trigger thing with an elbow with a claw that he uses to pick things up off the floor as he cannot bend down.[52]
·He drives a car, it is painful but he moves around in the driver’s seat. He drives about 5-10 kilometres to the local shops and sometimes 30 kilometres when he needs to drive to Ipswich.[53]
[44]    Transcript, pages 8-9.
[45]    Transcript, page 9.
[46]    Transcript, page 11.
[47]    Transcript, pages 12-13.
[48]    Transcript page 13.
[49]    Transcript pages 13-14.
[50]    Transcript page 14.
[51]    Transcript pages 14-15.
[52]    Transcript page 15.
[53]    Transcript page 16.

On cross-examination, the Applicant told the Tribunal:
·He has about seven masks for his sleep apnoea machine, he has tried every kind there is. He uses the machine but not for every long because he rips the mask off. He has been back to the doctors about this and they have said they can do nothing more for him – he needs to try and wear the mask.[54]
·The pain he was speaking about relates to his neck and back. The pain from his back makes him get dizzy, funny in the eyes, nauseous and jittery.[55]
·In 2017, he was seeing a physiotherapist and was going to the pool in Gadding to do hydrotherapy for his back.[56]
·He saw a rheumatologist after he made his claim for DSP who diagnosed him with back problems.
·
He has been seeing Mr Jones a registered psychologist for a number of years.

Dr Sarkar started him on medication for his anxiety and depression.[57]
·He has difficulty reading.[58]
[54]    Transcript, page 19-20.
[55]    Transcript, page 21.
[56]    Transcript, pages 21-22.
[57]    Transcript, pages 24-25.
[58]    Transcript, page 26.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[59] 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.[60] 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.[61] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[62]
[59]    Section 6(3)(a) of the Determination.
[60]    Section 6(4) of the Determination.
[61]    Section 6(2) of the Determination.
[62]    Section 8(1) of the Determination.
Back Condition – Table 4 – Spinal Condition
The Respondent accepts that the Applicant’s spondylosis condition was fully diagnosed during the Relevant Period, however contends that the condition was not fully treated and fully stabilised and therefore any arising impairments cannot be assigned an impairment rating under Table 4 of the Impairment Tables.[63] The Respondent relies on the following evidence:[64]
[63]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 40.
[64]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-9, paragraph 41.
·     Report by Ann Heymans (Osteopath) dated 4 August 2015 (T13, f63) indicating the Applicant had finished three treatments under the EPC Program and including the following comment:
From my point of view, as well as correcting his pelvic alignment, there was some improvement in his level of soft tissue tension, around the shoulders and in his paraspinal muscles, as well as a slight improvement in his cervical rotation ROM. I think he would need regular treatment over a number of months, and a reduction in weight to make a significant difference to his pain level, a view he also expressed.
·     X-Ray Thoracic spine by Dr Ratanjee dated 18 July 2016 (T30, f128-129) indicating there is moderate to severe mid to lower thoracic spondylosis with anterior osteophytes.
·     Report by Luen Pearce (Physiotherapist) dated 1 February 2017 (T36, f156) indicating:
o    She had discussed the Applicant's latest radiology and signs and symptoms with Spinal Consultant Dr Dihan Aponso; and
o    The Applicant was presenting with spinal pain, stiffness and nauseous episodes; and
o    She was referring the Applicant for physiotherapy management and the HELP program through Ipswich Hospital; and
o    That Dr Aponso suggested a referral to a Rheumatologist may be needed.
·     Report by Dr Crowley (GP) dated 5 May 2017 indicating the Applicant suffers from severe degenerative spondylosis of the cervical, thoracic and lumbar spine and that he had received extensive assessment and treatment for this condition which would not improve.
·     Job Capacity Assessment dated 21 June 2017 (T46, f199-211) containing the following comments:
Past treatment: X-Ray report of thoracic spine by Dr Geoffrey Stieler, radiologist dated 26.05.16; MRI Lumbar Spine by Dr Jennifer Chang, radiologist dated 27.06.15; Osteopathy (Ms Heymans 13/7/15), Physiotherapy (Luen Pearce, 14.09.15 and 22.02.16).
[The Applicant] was performing home exercises and that he saw the dietician twice to discuss weight goals (Luen Pearce, 22.02.16).
MR states he has received extensive assessment and treatment from Princess Alexandra Hospital and allied health.
Current treatment: Previous Job Capacity Assessment dated 14/07/2016 indicates that [the Applicant] reported that he takes Panadol Osteo. He reported an intolerance to using anti-inflammatory medication.
Future treatment: SR indicates physiotherapy and the HELP program. SR indicates consultation with Spinal Consultant Dr Dihan Aponso on the 1/02/2017 who suggested [the Applicant] may have signs of Ankylosing Spondylitis or DISH and therefore recommended further GP investigations and suggested a referral to a Rheumatologist may be needed.
Prognosis: MR indicates his condition is permanent and will not improve. MC indicates that the condition is likely to persist.
Condition is considered fully diagnosed: As per MR cited.
Condition is not considered fully treated and stabilised: SR indicates that Spinal Consultant Dr Dihan Aponso has recommended further GP investigations and also suggested a referral to a Rheumatologist may be needed. The hospital physiotherapist, Luen Pearce from the Orthopaedic Physiotherapy Screening Clinic recommended in October 2015 that the client engage with dietetics to decrease weight and engage in hydrotherapy. It is noted that the client attended a dietician twice. However given the morbid obesity still remains not fully treated and stabilised, and weight loss has been recommended as treatment for spinal condition, the spinal condition cannot be considered not fully treated and stabilised.
·     Letter by Luen Pearce (Physiotherapist) dated 31 July 2017 (T52, t233) addressed to Dr Crowley (Applicant's GP) asking that he refer the Applicant to the Rheumatologist re: his symptoms and radiology.
·     The report by Luen Pearce dated 13 September 2017 (T50, f216) confirming the Applicant has been attending the Back Assessment Clinic at the Princess Alexandria [sic] Hospital and undergoing rehabilitation with the OPSC Physiotherapy, dietetics team at Ipswich Hospital and that he had been referred to a Rheumatologist by his GP re assessment and diagnosis of his thoracic spinal pain.
·     Assessment Services Recommendation for DSP medical eligibility dated          1 December 2017 (T53, f235-237), completed by a Rehabilitation Counsellor and containing the following comments:
Job Capacity Assessment (20/06/2017) assessed Spinal Disorder as Fully Diagnosed, but Not Fully Treated, and Stabilised with further investigations recommended by Spinal Consultant (Dr. Aponso), and a review by a rheumatologist also recommended. In addition, weight loss was also recommended. Report completed by Physiotherapist from PAH Spinal Surgical Service, Luen Pearce (13/09/2017) informs that the client has been referred to the rheumatologist regarding a 'reassessment and diagnosis of thoracic spinal pain —Diffuse idiopathic skeletal hyperostosis versus Ankylosing spondylitis or perhaps another differential diagnosis'. No reports from the rheumatologist have been provide to date with an opinion on diagnosis and treatment options. No information on specific weight loss has been provided. These treatment options have the potential to significantly improve function. (at f236)
The Applicant was assessed by Dr Joseph O’Callaghan, Rheumatologist, after the Relevant Period who provided a report dated 2 March 2018. Dr O’Callaghan did not refer to the Relevant Period and as such his report is of little value to the Tribunal in considering the Applicant’s condition at the Relevant Period. Dr O’Callaghan provided:[65]
“He does however have moderately severe spondylosis involving his cervical, thoracic and lumbar spine, and this has been quite disabling. His function is impaired and he had difficulty with prolonged standing or sitting, and his walking distance is limited as a consequence of his spondylosis.”
[65] Exhibit 4, Report of Dr Joseph W. O’Callaghan, dated 2 March 2018.
Based on the evidence before the Tribunal, I find that the Applicant’s back condition was fully diagnosed however was not fully treated and fully stabilised at the Relevant Period as he had been referred for specialist review and was still engaging in treatment and investigation of the condition during the Relevant Period.
As I have found that the Applicant’s back condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Anxiety and Depression – Table 5 – Mental Health Condition
To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[66]
[66] Impairment Table 5 – Mental Health Function, Part 3 of the Determination.
Both the Applicant’s General Practitioner, Dr Paul Crowley and Psychologist, Mr Greg Jones have provided numerous reports in relation to the Applicant’s anxiety and depression and the functional impact these conditions have on the Applicant.[67]
[67] For example: Exhibit 1, T Documents, T31, pages 130-131, Medical Summary by Dr Paul Crowley; T33, page 149, Medical Certificate by Dr Paul Crowley; T35, page 155, Medical Certificate by Dr Paul Crowley; T40, page 160, Medical Certificate by Dr Paul Crowley; T42, page 163, Report by Mr Greg Jones; T43, pages 164-165, Medical summary by Dr Paul Crowley; T48, page 214, Medical Certificate by Dr Paul Crowley; T51, pages 217-227, Response to Questionnaire by Dr Paul Crowley; Exhibit 5, Response to Questionnaire by Mr Greg Jones, dated 23 April 2018.
In a report dated 16 August 2017, Dr Amitava Sarker, Consultant Psychiatrist provided:[68]
“[The Applicant] presents with high stress, anxiety attacks and impaired sleep on most nights in context of loss of employment, losing money to brother in business, and others exploiting him not paying for his work. He is also obese and does comfort eat, has several medical issues.
He is not ready to take most medications due to his experience with one antidepressant which he can’t recall.
He has been knocked back from Centrelink for Disability pension.
Premorbidly he appears to be isolative, mistrustful and perfectionist with little insight into his personality traits.
He presents with moderate depression which is reactive. He is not suicidal. He confirms anxiety attacks which are fairly regular. He is not hopeless but may feel helpless from setbacks from time to time.
Imp: Major depression with Anankastic personality traits.
I have started him on Fluoxetine dispersible tabs 10mg for one week then 20mg to continue, he may need up to 40mg daily if he tolerates.”
[68] Exhibit 1, T Documents, T52, page 234, Report of Dr Amitava Sarkar.
The report by Dr Sarkar falls outside of the Relevant Period and indicates that treatment was ongoing.
In a further report dated 31 October 2018, Dr Sarkar confirmed that the Applicant has major depression with panic attacks and Autism Spectrum disorder. Dr Sarkar provided:[69]
“Both conditions are now permanent causing severe functional impairment, and there are no new treatments to be trialled further.”
[69] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, Annexure 3.
Based on the evidence before the Tribunal, I find that the Applicant’s depression and anxiety conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Relevant Period ended on 8 August 2017 and the Applicant’s diagnosis by Dr Sarkar, consulting psychiatrist was not made until 16 August 2017 and indicated treatment was ongoing. Therefore, although the Applicant’s mental health condition has subsequently been fully diagnosed that was not the case during the Relevant Period.
As I have found that the Applicant’s depression and anxiety conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
Autism Spectrum Disorder – Table 7 – Brain Function
In a report dated 5 May 2017, Mr Jones, Psychologist, provided that:[70]
“In my opinion, [the Applicant] has characteristics of Aspergers syndrome which is a variant of Autism Spectrum Disorder and Major Depressive Disorder largely due to his ongoing back pain. He also has Panic Disorder and is somewhat Agoraphobic.”
[70] Exhibit 1, T Documents, T42, page 163, Report by Mr Greg Jones.
Further reference to the Applicant’s Autism Spectrum disorder is not made during the Relevant Period or in reference to the Relevant Period. It is noted that in a response to a questionnaire dated 23 April 2018, Mr Jones outlines functional impacts of the Applicant’s Autism Spectrum Disorder and Major Depression and did not specify when diagnosis was made however indicated that the Applicant would not have been able to find or maintain work or training due to his impairments from 20 December 2016.[71] Further in a response to a questionnaire dated 17 September 2017, Dr Crowley made reference to the Applicant’s mental health conditions however did not refer to Autism Spectrum disorder.[72]
[71] Exhibit 5, Questionnaire completed by Mr Greg Jones.
[72] Exhibit 1, T Documents, T51, pages 220-221, Response to Questionnaire completed by Dr Paul Crowley.
In a report dated 31 October 2018, Dr Sarkar confirmed that the Applicant has a diagnosis of major depression with panic attacks and Autism Spectrum disorder and that both conditions were ‘now permanent causing severe functional impairment’.[73]
[73] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, Annexure 3.
Based on the evidence before the Tribunal, I find that the Applicant’s Autism Spectrum Disorder condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. In considering the medical evidence in totality, I find that the Applicant’s Autism Spectrum Disorder condition was not diagnosed within the Relevant Period as

Mr Jones referred to his opinion that the Applicant has characteristics of the condition and has not provided a clear diagnosis. Further there is limited evidence before the Tribunal that outlines the specific functional impacts related to the Applicant’s Autism Spectrum Disorder.
As I have found that the Applicant’s Autism Spectrum Disorder condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Heart, Hypertension, Diabetes, Obesity and Obstructive Sleep Apnoea Conditions – Table 1 – Functions requiring Physical Exertion and Stamina
In a report dated 5 May 2017, Dr Crowley provided:
“[The Applicant] suffers from atrial fibrillation and hypertension. He had long term treatment from Princess Alexandra Hospital and Toowoomba hospitals. He has received maximal treatment and his condition is fully stabilised. His condition prevents him from working in any capacity.[74]
…
[The Applicant] suffers from chronic obstructive pulmonary disease and sleep apnoea. His conditions affect his ability to work and are permanent.”[75]
[74] Exhibit 1, T Documents, T43, page 164, Medical Report of Dr Paul Crowley.
[75] Exhibit 1, T Documents, T43, pages 164-165, Medical Report of Dr Paul Crowley.
In a report dated 29 January 2016, Dr Penny Astridge, Staff Specialist Cardiologist, provided that she had reviewed the Applicant in the Cardiology Clinic:[76]
[76]    Exhibit 1, T Documents, T19, page 73, Report of Dr Penny Astridge.
“He has a history of:
1.    Paroxysmal AF.
2.    OSA.
•     Intolerant to mask so untreated.
3.    Morbid obesity.
•     Further 11 kg weight gain to 162 kg January 2016.
4.    Treated hypertension.
5.    Type 2 diabetes.
[The Applicant] has been off work because of his bad back; he had a prolonged period in bed again and has gained a further 11 kg in weight, more or less. He continues on metoprolol 100 mg bd, rivaroxaban and perindopril 10 mg daily. He has had little by way of arrhythmias since I saw him last, 12 months ago.
Blood pressure today is 124/76 and he is not overtly in failure. His ECG remains normal.
He will continue his current management and I have strongly encouraged him to exercise and lost weight. If he carries on gaining weight like this, he will be too heavy for any interventions, should one be required.
He will come for further review in 12 months.”
The Respondent accepts that the Applicant’s heart condition, being paroxysmal Atrial fibrillation, hypertension and diabetes conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Respondent contends that the medical evidence indicates these conditions had only minimal functional impact and attract a rating of zero under Table 1 of the Impairment Tables.[77]
[77] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6, paragraphs 36-39; page 14, paragraphs 61-62.
In support of their contention that the Applicant’s heart condition should be assigned zero points under Table 1 of the Impairment Tables, the Respondent relies on the following evidence:[78]
[78]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-8, paragraph 38-39.
·     The report by Dr Astridge (Cardiologist) dated 29 January 2016 (T8, f57) confirming the Applicant suffers paroxysmal Atrial fibrillation and including the following comment:
"..He has had little by the way of arrhythmias since I saw him last 12 month ago"
·     The report by Dr Astridge (Cardiologist) dated 16 February 2017 (T37, f157) noting the following:
"..on his current regime of a simple beta block at a high dose, is reasonably well under control, although he does have intermittent symptoms, triggered by adrenalin.”
·     The JCA report dated 21 June 2017 (T46, f199-211) containing the following comments:
Symptoms: MR states his condition prevents him from working in any capacity. SR indicates intermittent symptoms, triggered by Adrenaline. SR indicates he is likely to have increasing episodes of AF as the years go by, as that is the natural history of the condition. SR states that he is incapacitated for two or three days after a paroxysm, feeling completely washed out, even once the palpitations have settled.. (f201-202).
The Respondent accepts that the Applicant’s obesity and obstructive sleep apnoea conditions have been fully diagnosed however contends that there is insufficient medical evidence to find that these conditions were fully treated and fully stabilised during the Relevant Period.[79] The Respondent relies on the following:[80]
[79]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 14, paragraph 63.
[80]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 14-15, paragraph 64.
·JCA report dated 21 June 2017 (T46, at f203) containing the following comments:
Condition: Morbid obesity, confirmed in the Specialist Report (SR) completed by Cardiologist Penny Astridge on the 29/01/16.
Onset: unknown.
Symptoms/Functional impacts: SR indicates that the client had gained a further 11 kg tob162 kg at the time of the report, and that if he carries on gaining weight like this he will be too heavy for any interventions should one be required.
Previous Job Capacity Assessment dated 14/07/2016 indicates [the Applicant] reported difficulties with maintaining his diet.
Past treatment: Noted by Dr McFarlane (14/08/14) as meal replacement therapy.
Report by Ms Pearce, musculoskeletal physiotherapist (22/02/2016) noted that
[the Applicant] has seen the dietician twice to assist with re-evaluate weight goals.
Current treatment: No medical information provided.
Future treatment: SR indicates exercise is strongly encouraged and weight loss.
Prognosis: No medical information provided.
For the purposes of this assessment, the condition can be considered permanent and fully diagnosed. In the absence of evidence demonstrating that all reasonable treatment has been undertaken to date (further dietician, exercise physiology), the condition is not considered fully treated and stabilised.
·     The same JCA report, at T46 at f202 containing the following comments:
Condition: Obstructive Sleep Apnoea, confirmed in the Specialist Report (SR) completed by Cardiologist Dr Penny Astridge on the 29/01/2016 and in the Medical Report (MR) completed by GP Dr Crowley on the 5/05/2017.
Onset: unknown.
Symptoms/Functional impacts: Not reported on current medical evidence.
Previous Job Capacity Assessment dated 14/07/2016 states [the Applicant] reported some daytime fatigue.
Past treatment: SR states that [the Applicant] has attempted to use the Continuous Positive Airways Pressure Machine (CPAP) however he is intolerant to the mask.
Current treatment: No current medical information provided.
Future treatment: No current medical information provided.
Prognosis: MR indicates the condition is likely to affect his ability to work and is
permanent. For the purposes of this assessment, the condition can be considered permanent and fully diagnosed but not fully treated and stabilised. There is an absence of evidence demonstrating that all reasonable treatment has been undertaken to date.
·     The Assessment Services Recommendation for DSP medical eligibility dated 1 December 2017 (T53, f235-237) containing the following comments:
Job Capacity Assessment (20/06/2017) assessed Obstructive Sleep Apnoea as Fully Diagnosed, but Not Fully Treated, and Stabilised as the client reports of issues with the mask of his CPAP, and that reviews and further treatment may be required. No additional information has been provided.
Job Capacity Assessment (20/06/2017) assessed Morbid Obesity as Fully
Diagnosed, but Not Fully Treated, and Stabilised with additional treatment
(further dietician, exercise physiologist) being advised. In addition, there is no
verified medical evidence of involvement with any of the obesity clinics. These
treatment options have the potential to significantly improve function, as this
condition may be having a negative impact on a number of other conditions. No additional information on this condition has been provided post JCA.

Based on the medical evidence set out above I find that the Applicant’s heart, hypertension and diabetes conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. As such, the functional impairment of the conditions can be assessed under Table 1 of the Impairment Tables.
Based on the medical evidence set out above I find that the Applicant’s morbid obesity and obstructive sleep apnoea conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period as there is limited evidence before the Tribunal in relation the ongoing treatment and stabilisation of these conditions.
In a response to a questionnaire dated 17 July 2017, Dr Crowley has grouped together the diagnosis of the Applicant’s heart condition, obstructive sleep apnoea, morbid obesity, hypertension and type 2 diabetes. Dr Crowley provided that these conditions were fully diagnosed, fully treated and fully stabilised at 20 January 2016 and that all reasonable treatments had been undertaken by 29 January 2016 and that considering the functional impacts he outlined, the conditions should be assigned 20 points under Table 1 of the Impairment Tables.[81]
[81] Exhibit 1, T Documents, T51, pages 222-223, Questionnaire completed by Dr Paul Crowley.
Outside of the questionnaire dated 17 July 2017 completed by Dr Crowley, there is limited evidence before the Tribunal in relation to the Applicant’s hypertension and diabetes conditions.
The Respondent has acknowledged Dr Crowley’s response to the questionnaire and contends that Dr Crowley provides minimal detail in relation to the basis for his indicating why he considers all reasonable treatments had been undertaken specifically in respect of the Applicant’s morbid obesity and sleep apnoea. Accordingly, the Respondent contends that the Applicant’s morbid obesity and sleep apnoea conditions cannot be assigned an impairment rating.[82]
[82] Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page, 15, paragraphs 65-67.
It is clear from both the medical evidence and the evidence provided by the Applicant at Hearing that his heart, hypertension, diabetes, morbid obesity and obstructive sleep apnoea conditions have a functional impact upon his functions that require physical exertion and stamina.
The Determination provides that 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.[83] However, the Determination also provides that a condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[84]
[83] Sections 10(5) and (6) of the Determination.
[84] Section 6(3) of the Determination.
As I have found that the Applicant’s obesity and obstructive sleep apnoea conditions are not considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period, I am unable to assign impairment points for these conditions. The evidence from Dr Crowley in relation to the impairments affecting the Applicant’s functions requiring physical exertion and stamina have been linked to the Applicant’s heart condition, obstructive sleep apnoea, morbid obesity, hypertension and type 2 diabetes conditions. As the evidence of Dr Crowley that is before the Tribunal does not separate the functional impacts relating to physical exertion and stamina between the diagnosed conditions, and there is insufficient other evidence before the Tribunal, I am unable to assign impairment points under the Impairment Tables to the permanent conditions (being the heart, hypertension and diabetes conditions).
Based on the evidence before the Tribunal, I find that the Applicant’s heart, hypertension and diabetes conditions were fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned a functional impairment rating of zero points under Table 1 of the Impairment Tables.
Based on the medical evidence set out above I find that the Applicant’s morbid obesity and obstructive sleep apnoea conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period as there is limited evidence before the Tribunal in relation the ongoing treatment and stabilisation of these conditions.
As I have found that the Applicant’s morbid obesity and obstructive sleep apnoea conditions were not fully treated and fully stabilised during the Relevant Period, 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.
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 cumulatively 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.
It is important to keep in mind that the Tribunal is limited to considering the Applicant’s conditions during the Relevant Period. In this case the Relevant Period is between
8 May 2017 and 8 August 2017. This limitation relates to the diagnosis of the conditions, progress of treatment and how the conditions impacted upon the Applicant at that time. I accept that the Applicant’s conditions cause functional impairments and that he has continued to receive treatment and specialist review since the Relevant Period. Although, between 8 August 2017 and the date of the Hearing of this matter (being 26 November 2018) the Applicant had provided a further medical evidence in relation to the treatments and reviews he had undertaken after 8 May 2017 and the resulting functional impacts caused by his conditions, the Tribunal is limited to looking at the situation during the Relevant Period. It should be noted that the Applicant may choose to lodge a new claim for DSP at any time.
I find that the Applicant’s back condition was fully diagnosed however was not fully treated and fully stabilised at the Relevant Period and therefore could not be permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s depression and anxiety conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period, and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
I find that the Applicant’s Autism Spectrum Disorder condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s heart, hypertension and diabetes conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, I find that the Applicant’s heart, hypertension and diabetes conditions are assigned zero points under Table 1 of the Impairment Tables.
I find that the Applicant’s morbid obesity and obstructive sleep apnoea conditions were fully diagnosed, however were 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 and I am unable to assign impairment points for the conditions.
I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.......................[SGD]....................................
Associate
Dated: 02 July 2019

Date of hearing: 26 November 2018

Applicant: By Phone

Advocate for the Respondent:
Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2019] AATA 1589

2 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Natural Justice

Procedural Fairness

Statutory Construction

Appeal

Date of hearing:	26 November 2018
Applicant:	By Phone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services