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

Hodgetts and Secretary, Department of Social Services (Social services second review) [2019] AATA 4237 (17 October 2019)
Division:GENERAL DIVISION
File Number: 2019/1435
Re:Brett Hodgetts
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:17 October 2019
Place:Brisbane

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

On 31 January 2018, Mr Brett Hodgetts (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]
[1] Exhibit 1, T Documents, T11, pages 83-116, DSP claim form.
The claim was rejected on 21 March 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. The decision was reviewed by an Authorised Review Officer (ARO) who affirmed the decision to refuse the application for DSP on 20 October 2018.[3]
[2] Exhibit 1, T Documents, T13, pages 119-120, Letter: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T23, pages 140-145, ARO 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

8 February 2019.[4]
[4] Exhibit 1, T Documents, T2, pages 4-12, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 14 March 2019.[5]
[5] Exhibit 1, T Documents, T1, pages 1-3, Application for Second Review of Decision.
On 3 October 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s DSP claim form[6] he lists the following disabilities, illnesses or injuries:[7]
·Right ankle arthritical
·Lower back pain, bulged disc L3, L4, L5, S1
·Depression
·Tears in tendons left shoulder
·Narrowing disc T1, T2
[6] Exhibit 1, T Documents, T11, pages 83-116, DSP claim form.
[7] Exhibit 1, T Documents, T11, page 109, DSP claim form.
The Applicant has made previous claims for DSP and based on the current claim and more recent medical evidence an Assessor conducted a file review and completed a DSP Medical Assessment Recommendation Report dated 21 March 2018.[8] The Assessor whose professional discipline is listed as occupational therapist recommended that Applicant was ‘manifestly medically ineligible’ for DSP based on the assessment that his conditions were not fully diagnosed, treated and stabilised.[9]
[8] Exhibit 1, T Documents, T12, pages 117- 18, DSP Medical Assessment Recommendation.
[9] Exhibit 1, T Documents, T12, pages 117-118, DSP Medical Assessment Recommendation.
On 21 March 2018, the Applicant’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more.[10] The Applicant sought review of this decision.[11] The Applicant proceeded to provide a suite of additional medical evidence which was assessed by various Assessors on behalf of the Respondent who provided an Employment Services Assessment Report dated 10 April 2018[12] and DSP Medical Assessment Recommendations dated 1 June 2018 (professional discipline listed as psychologist) and 5 September 2018 (professional discipline listed as exercise physiologist).[13] The Assessors in these reports and recommendations opined that the Applicant was ‘manifestly medical ineligible’ for DSP.
[10]    Exhibit 1, T Documents, T13, pages 119-120, Letter: Rejection of DSP claim.
[11]    Exhibit 1, T Documents, T14, pages 121-122, Applicant’s request for ARO review.
[12]    Exhibit 1, T Documents, T15, pages 124-129, Employment Services Assessment Report.
[13]    Exhibit 1, T Documents, T18, pages 133-134, DSP Medical Assessment Recommendation; T21, pages 137-138, DSP Medical Assessment Recommendation..
On 20 October 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[14]
·You have the following medical conditions: degeneration medial compartment and extruded medial meniscus (left knee), right ankle osteoarthritis, chronic lumbar back pain, widespread musculoskeletal pain (left shoulder, low back, right ankle and left knee) and depression.
·Your conditions cannot be accepted as being fully treated and fully stabilised.
·For this reason no impairment ratings can be assigned.
·Your total impairment rating is nil.
[14] Exhibit 1, T Documents, T23, page 141, ARO Decision and Notes.
On 7 November 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On 8 February 2019, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T24, pages 146-147, Application to the SSCSD.
[16] Exhibit 1, T Documents, T2, pages 4-12, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
1.Does the Applicant have a physical, intellectual or psychiatric impairment;[17]
2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18] and
3.Does the Applicant have a continuing inability to work?[19]
[17]    Section 94(1)(a) of the Act.
[18]    Section 94(1)(b) of the Act.
[19]    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:
(i)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
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[20] 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.[21] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[22]
[20]    Section 6(1) of the Determination.
[21]    Section 6(2) of the Determination.
[22]    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.[23]
[23] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[24]
(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.
[24] 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 is planned in the next 2 years.[25]
[25] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[26]
(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.
[26] 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.[27]
[27] 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; then refer to the Table related to the function affected; and then identify the correct impairment rating.[28] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[29] 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.[30]
[28]    Section 10 of the Determination.
[29]    Sections 10(3) and (4) of the Determination.
[30]    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.[31]
[31] 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.[32]
[32] 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.[33]
[33] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[34]
[34] 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 31 January 2018, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 2 May 2018. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[35] The Respondent considers the Applicant’s impairments include right ankle,[36] spinal,[37] shoulder,[38] left knee,[39] and a mental health condition.[40]
[35]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 6, paragraph 35.
[36]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 6-7, paragraphs 36-42.
[37]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 7-9, paragraphs 43-53.
[38]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 9, paragraphs 54-60.
[39]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 9-10, paragraphs 61-65.
[40]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 10, paragraphs 66-71.
The remaining issues for the Tribunal to consider are:
1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At the Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions he was asked and was forthcoming in providing his evidence.
After discussing the available evidence in relation to the Applicant’s left knee and mental health conditions the Applicant told the Tribunal that he agrees that these conditions were not fully diagnosed, fully treated and fully stabilised at the Relevant Period. The Applicant told the Tribunal that he had only had x-rays in relation to his left knee condition and was on a waiting list for an operation, and that in relation to his mental health he had not yet seen a clinical psychologist or psychiatrist however has an appointment in November to see a clinical psychologist. This is consistent with the Respondent’s contentions.[41]
[41] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 9-10, paragraphs 61-71.
Consequently, based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s left knee and mental health conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s right knee, spinal, or shoulder 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.[42] 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.[43] 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.[44] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[45]
[42]    Section 6(3) of the Determination.
[43]    Section 6(4) of the Determination.
[44]    Section 6(2) of the Determination.
[45]    Section 8(1) of the Determination.
Medical Evidence
In a report dated 24 May 2016, Dr Peter Georgius, Pain and Rehabilitation Specialist provided:[46]
“[The Applicant] has multiple sites of pain including his right shoulder which stared in 2000, currently his worst site of pain, lower back pain and right ankle pain which started in 1994 after falling down a 30ft mineshaft as well as left knee pain.
…
Overall assessment is that [the Applicant] has widespread musculoskeletal pain affecting the left shoulder, lower back, right ankle, left knee. With regards to the shoulder, there may also be a somatic referred component from the cervical spine.”
[46] Exhibit 1, T Documents, T14, page 123, Medical report authored by Dr Peter Georgius.
Dr Georgius reported that the purpose of the consultation was that the Applicant was requesting to be considered for a Cannabis oil pain management. He informed the Applicant that Cannabis oil was not an approved therapeutic agent in Australia at that stage.[47]
[47] Exhibit 1, T Documents, T14, page 123, Medical report authored by Dr Peter Georgius.
In a nuclear medicine bone scan report, dated 2 June 2016, Dr John Evans reported that the Applicant had:[48]
“Marked arthropathy at the right ankle for which correlation with other imaging is suggested, but most likely degenerative in nature.”
[48] Exhibit 1, T Documents, T9, page 80, Nuclear medicine bone scan results and findings dated 2 June 2016.
In a report dated 28 September 2017, Dr Ghina Al-Sarraf, General Practitioner, reported that the Applicant had:[49]
“… long Hx of multiple sites pain, in the Rt Shoulder, lower back pain, and Rt ankle pain since the accident at the mining site in 1994, this pain is affecting his daily activities, walking and working.
he was under the care of pain specialist DR Georgios (sic) in SCU private hospital, who recommended him to commence palexia 150 bd, and he has been compliant with his treatment since, he also had few steroid injections in the shoulder and the back, which gave him fair pain relief for short term he was also referred recently to orthopaedic surgeons to amange (sic) his right ankle pain. (hand written note – not seen yet)”
[49] Exhibit 1, T Documents, T8, pages 75-76, Medical report authored by Dr Ghina Al-Sarraf.

In a MRI lumbar spine procedure report dated 27 May 2016, Dr Evans reported that:[50]
“Canal stenoses seen, particularly at L4/5 and L5/S1, but also L3/4. Foraminal stenoses are seen bilaterally at L4/5 and L5/S1. No further convincing neural compromise is seen.”
[50] Exhibit 1, T Documents, T9, pages 78-79, MRI lumbar spine results and findings dated 27 May 2016.
In a report dated 15 September 2016, Dr P O’Hare, Radiologist, reported that:[51]
“Under CT control, o.5% Marcaine and Dexamethasone were injected into the right-sided L5 nerve root sleeve, as requested.”
[51] Exhibit 1, T Documents, T9, page 81, CT Scan with procedure results and findings dated 15 September 2016.
In Centrelink, medical certificates dated 4 January 2018 and 31 May 2018, Dr Al-Sarraf reported the Applicant had chronic lumbar back pain and osteoarthritis in the right ankle and as a result he was unable to walk far due to back pain MRI broad disc bulge with canal stenosis in L3/4, L4/5, L5/S1 and had right ankle pain. She indicated that treatment including past, current and planned were pain management, referral to physiotherapy and spinal surgeon in RBH.[52]
[52] Exhibit 1, T Documents, T10 and T17, pages 82 and 132, Medical Certificates completed by Dr Ghina Al-Sarraf.
In a report dated 24 May 2018, Ms Sue Bennett, Physiotherapist, reported that the Applicant had been a patient of her clinic since January 2018. The Applicant had presented with multiple musculo-skeletal problems and showed a high risk for falls based on the result of his functional capacity assessments.[53]
[53] Exhibit 1, T Documents, T16, pages 130-131, Medical report authored by Sue Bennett.
In a report dated 4 December 2018, Mr Grahame Milne, Musculoskeletal Physiotherapist, at the Spinal Physiotherapy Screening Clinic at the Royal Brisbane & Women’s Hospital (RBWH) provided:[54]
“... I am writing to confirm that [the Applicant] is significantly disabled by his back pain from low lumbar (L4/5 and L5/S1) canal and foraminal stenosis, (imaging: MRI scan lumbar spine 27/5/16 – reported large annular disc bulges at L4/5 and L5/S1 causing canal stenosis. At L4/5 there is a marked left and moderate right foraminal stenosis. At L5/S1 there is bilateral moderate to marked stenoses).
…
The diagnosis of stenosis is likely to slowly worsen with the passage of time. He has agreed to try a conservative approach in the first instance and this is ongoing as far as I understand. Therefore, there may be some symptomatic changes to be achieved through physiotherapy.
However, due to the nature of the condition, it remains to be seen what further management (surgical or otherwise) may be required in the future.”
[54] Exhibit 1, T Documents, T26, page 149, Medical report authored by Mr Grahame Milne.
Applicant’s Evidence
At Hearing the Applicant told the Tribunal:
·That for all of his conditions other than his right knee condition he had not had any treatment due to the expense.
·He tries to do anything he can to avoid aggravating his conditions.
·He has not seen an orthopaedic specialist or pain specialist in relation to his right ankle condition. He has had three arthroscopes on his right ankle in 2009 and that Dr Saxby told him that the next operation would be fusion which would have a 50/50 chance of the pain going away.
·He had called the RBWH in relation to physiotherapy a month ago and they asked him for an MRI.
·He has only seen Dr Georgius in relation to his back and he had talked about an electrical device to help with nerve pain.
·That the next step for his back was an operation and he knows people who have gotten worse from the operation.
·He has not been to a pain clinic. He just uses massage and stretches to deal with nerve pain.
·He has not seen a specialist in relation to his shoulder condition. He said that it seems to have stabilised, it sometimes wakes him up but he has gotten used to it.
·He cannot afford to see specialists.
·He is afraid of having a back operation as he feels it is way too intrusive – it is a 9-hour operation.
·He can no longer beach fish or go boating.
·He has problems travelling due to pain and the long recovery times afterwards.
·He lives on his own.
·Some days he vacuums and it takes him a few goes as he has to stop and rest and stretch.
·He can no longer whipper snip his yard and has found he can only mow the front and then had to rest for the follow few days.
·It takes him all week to get things done.
·He has a stool in the kitchen to rest on when cooking or doing dishes.
·He does not take pain medication and anti-depressants, he is not so depressed that he cannot do anything.
·He does not think he could work 15 hours and that the job search people agree.
·He walks with a walking stick.
·He struggles during the day, when he goes uptown to go to the post office, he has to park with the shortest distance possible and he can only walk on flat surfaces.
·He cannot walk far without his back and right ankle flaring up.
On cross-examination, the Applicant told the Tribunal:
·He attended the RBWH Spinal Physiotherapy Screening Clinic on 4 December 2018 and at that time Mr Milne said what further management was required was unknown and envisaged that an appointment with a surgeon would follow.
·That in January 2018 he saw Sue Bennett, Physiotherapist, but she could not do anything to help.
·He has been getting massages since 1997/98 and this helps.
·The physiotherapist said they would try and help with quality of life.
·That he had told the Employment Services Assessor that he had an appointment with a surgeon but did not go and the reason was that he could not afford it.
·When asked if he had been referred to the patient subsidy travel scheme to assist with travel costs he said he had not.
·When asked about why he did not see Dr Georgius after his initial consultation he said it was because of cost.
·He said he was unsure if he had been referred to a pain clinic in the public system.
·When asked if treatment at a pain clinic in the public system would have been reasonable he said yes.
·Confirmed that he lived alone, cooked for himself, could drive for an hour or two, drives to the local shops and post office and does his own grocery shopping.
·He agreed that Dr Georgius had reported in May 2016 that he had full range of movement in his neck and both shoulders and was able to reach towards the ceiling and touch the back of his head with ease.
·He had been unable to attend an orthopaedic referral in relation to his right ankle.
·He had been prescribed anti-depressants by his general practitioner and these had helped.
Respondent’s Contentions
Based on the reporting of Dr’s Evans, Georgius and Al-Sarraf the Respondent accepts that the Applicant’s right ankle, spinal, and shoulder conditions were fully diagnosed in the Relevant Period.[55]
[55] Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 7-9, paragraphs 41, 52 and 59.
The Respondent however contends that the Applicant’s right ankle, spinal, and shoulder conditions were not fully treated or fully stabilised in the Relevant period on the basis that:
(a)There is no evidence before the Tribunal that the Applicant attended the scheduled specialist review with an orthopaedic surgeon by the end of the Relevant Period.[56]
(b)There is no evidence before the Tribunal that the Applicant attended the scheduled specialist review with a spinal surgeon by the end of the Relevant Period.[57]
(c)There is no evidence before the Tribunal that the Applicant was referred for or completed a further pain management program by the end of the Relevant Period.[58]
(d)The Applicant gave evidence to the SSCSD that he had “not had any treatment for his shoulder condition in a long time” and had not “had any specialist assessment of this condition either.”[59]
(e)There is no evidence before the Tribunal that any of the Applicant’s treating doctors are of the opinion that further treatment will not be of any benefit to the Applicant.[60]
[56]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 7, paragraph 41.
[57]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 8, paragraph 52.
[58]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 8, paragraph 52.
[59]    Exhibit 2, Secretary’s Statement of Facts and Contentions, page 9, paragraph 59.
[60]    Exhibit 2, Secretary’s Statement of Facts and Contentions, pages 7-9, paragraphs 41, 52 and 59.
Tribunal Findings
The medical evidence before the Tribunal makes it clear that the Applicant had impairments during the Relevant Period and indicates that further specialist review was required.
At no stage did either Dr Georgius or Ms Bennett comment on what further treatments were available to the Applicant, or comment that no further retreatment would be of any benefit. Dr Al-Sarraf provided that pain management, referral to physiotherapy and orthopaedic and spinal surgeons were part of the Applicant’s treatment plan. Mr Milne opined that physiotherapy may be of some assistance as that it still remained to be seen what further management (surgical or otherwise) may be required.
The Applicant gave evidence to the Tribunal that he had not engaged with the relevant specialists and that cost of treatment and travel are a major inhibitor to doing so.
The Tribunal notes however that the Applicant did attend the RBWH and engaged privately with Dr Georgius when he wanted to seek specific treatment options. Further there are options for referral to specialists within the public system and potential access to the patient travel subsidy scheme available in Queensland.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s right knee, spinal, and shoulder conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period.
Accordingly, the Applicant’s right knee, spinal, and shoulder conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Did the Applicant have a Continuing Inability to Work for the purposes of section 94(1)(c) of the Act?
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s right knee, spinal, and shoulder 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. I am unable to assign impairment points for the condition.
I find that the Applicant’s left knee and mental health conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the condition could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for the condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.......................[SGD]...............................
Associate
Dated: 17 October 2019

Date of Hearing: 3 October 2019

Applicant: By phone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2019] AATA 4237

17 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of Hearing:	3 October 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services