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

Hurst and Secretary, Department of Social Services (Social services second review) [2017] AATA 605 (8 May 2017)
Division:GENERAL DIVISION
File Number:2016/5611
Re:Geoffrey Hurst
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:8 May 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.........................[Sgd]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) s 94
Social Security (Administration) Act 1999 (Cth) ss 41, 42 and clauses 3 and 4(1), Schedule 2, Part 2
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)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
8 May 2017
INTRODUCTION

On 25 November 2015 Mr Hurst lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “injury to [right] knee, multilevel degenerative change to cervical spine, arthritis [left] spine” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T4, pages 51-81, Mr Hurst’s Claim for DSP dated 25 November 2015.
To date Mr Hurst’s claim for DSP has been rejected. Mr Hurst seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr Hurst’s claim was rejected by a Centrelink officer on 28 February 2016.[2] The JCA concluded that Mr Hurst’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]
[2] Exhibit 1, T Documents, T5, pages 82-83, Centrelink Decision dated 28 February 2016.
[3] Exhibit 1, T Documents, T18, pages 131-137, Job Capacity Assessment report dated 17 February 2016.
Mr Hurst then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Hurst’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T6, pages 84-88, ARO Decision dated 14 April 2016.
Mr Hurst then lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Hurst’s claim and affirmed the ARO’s decision on 1 September 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 4-9, SSCSD’s Decision and Reasons for Decision dated 1 September 2016.
Mr Hurst has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, pages 1-3, Application for Review of Decision dated 18 October 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Hurst must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Hurst’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Mr Hurst must have a continuing inability to work.
[my emphasis]
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Hurst meets the Section 94 Requirements is the date of the claim (in this instance as at 26 November 2015), unless Mr Hurst becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Hurst must have met the Section 94 Requirements between 26 November 2015 and 26 February 2016 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Hurst’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[9]
DID MR HURST HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
Mr Hurst’s Medical Conditions
[10] Determination, s 3.
Heart
In a medical report prepared by Dr Cazot on 5 August 2015 he reports that Mr Hurst’s suffered from Chronic Obstructive Pulmonary Disease (“COPD”) in 2004.[11]
[11] Exhibit 1, T Documents, T14, page 122, Medical report by Dr Cazot dated 5 August 2015.
On 13 June 2014 the results of an echocardiogram found no significant heart disease.[12]
[12] Exhibit 1, T Documents, T10, page 115, Echocardiogram by Dr Langford, Radiologist, dated 13 June 2014.
Cervical Spine
On 7 June 2014 Mr Hurst had a CT scan of his brain and cervical spine which found:[13]
·Moderate signs of spondylosis
·Multilevel disc degenerate change
[13] Exhibit 1, T Documents, T9, pages 112-114, CT brain and cervical spine by Dr le Roux dated 7 June 2014.
Mr Hurst’s General Practitioner, Dr Maura Harvey, provided a medical certificate in August 2014 and reported Mr Hurst’s “spondylosis with bilateral radiculopathy” and “vertebral insufficiency” made him unable to work.[14]
[14] Exhibit 1, T Documents, T11, page 116, Medical Certificate by Dr Harvey dated 7 August 2015.
A further x-ray and CT scan of Mr Hurst’s thoracic and lumbar spine and pelvis was performed on 19 November 2015 which found:[15]
Multilevel degenerative changes with mild canal stenosis L2/3 and L3/4, slightly more prominent canal stenosis on the left at L4/5 and severe right facet joint degeneration L5/S1.
[15] Exhibit 1, T Documents, T16, page 129, x-ray and CT spine and pelvis dated 19 November 2015.
Dr Mary Piepers provided a medical certificate in November 2015 and reported Mr Hurst’s “cervical spine osteoarthritis” and “lumbar spine osteoarthritis” made him unable to work.[16]
[16] Exhibit 1, T Documents, T17, page 130, Medical Certificate by Dr Piepers dated 25 November 2015.
Dr Timothy Dark provided medical certificates in February 2016 and May 2016 and reported that Mr Hurst’s cervical spine stenosis and spine osteoarthritis made him unable to work.[17]
[17] Exhibit 1, T Documents, T20, page 139, Medical Certificate by Dr Dark dated 22 February 2016; T21, page 140,
Medical Certificate by Dr Dark dated 20 May 2016.
Lumbar Spine
Mr Hurst’s General Practitioner, Dr Maura Harvey, provided a medical certificate in August 2014 and reported Mr Hurst’s “spondylosis with bilateral radiculopathy” and “vertebral insufficiency” made him unable to work.[18]
[18] Exhibit 1, T Documents, T11, pages 116, Medical Certificate by Dr Harvey dated 7 August 2015.
An x-ray and CT scan of Mr Hurst’s thoracic and lumbar spine and pelvis was performed on 19 November 2015 and found:[19]
Multilevel degenerative changes with mild canal stenosis L2/3 and L3/4, slightly more prominent canal stenosis on the left at L4/5 and severe right facet joint degeneration L5/S1.
[19] Exhibit 1, T Documents, T16, page 129, x-ray and CT spine and pelvis dated 19 November 2015.
Dr Mary Piepers provided a medical certificate in November 2015 and reported Mr Hurst’s “lumbar spine osteoarthritis” made him unable to work.[20]
[20] Exhibit 1, T Documents, T17, pages 130, Medical Certificate by Dr Piepers dated 25 November 2015.
Dr Timothy Dark provided medical certificates in February 2016 and May 2016 and reported that Mr Hurst’s spine osteoarthritis made him unable to work.[21]
[21] Exhibit 1, T Documents, T20, page 139, Medical Certificate by Dr Dark dated 22 February 2016; T21, page 140,
Medical Certificate by Dr Dark dated 20 May 2016.
Right Knee
An MRI of Mr Hurst’s right knee in April 2015 found:[22]
1. Complex tear of the posterior horn of the medial meniscus…minor parameniscal cyst formation…extrusion of the body of the meniscus at the medial joint margin with an additional undersurface tear involving the inner margin.
2. …mild chondral loss of the medial femorotibial compartment…possible chondral fissuring at the lateral patellar facet but without significant chondral loss.
3. ...small joint effusion and large Baker’s cyst.
[22] Exhibit 1, T Documents, T12, page 117, MRI right knee by Dr Buchanan 20 April 2015.
Dr Timothy Dark provided medical certificates in April 2015, May 2015, September 2015, February 2016 and May 2016 and reported that Mr Hurst’s meniscal tear in his right knee made him unable to work.[23]
[23]Exhibit 1, T Documents, T13, pages 118-119 and 121, Medical Certificates by Dr Dark dated 23 April 2015, 22 May 2015, 24 September 2015; T20, page 139, Medical Certificate by Dr Dark dated 22 February 2016; T21, page 140, Medical Certificate by Dr Dark dated 20 May 2016
In July 2015 Dr Murray Pietsch provided a medical certificate and reported Mr Hurst’s “complex right meniscal tear” made him unable to work .[24]
[24] Exhibit 1, T Documents, T13, page 120, Medical Certificate by Dr Pietsch dated 24 July 2015.
On 5 August 2015 Dr Cazot referred Mr Hurst to Nambour Hospital for a specialist opinion and management of his complex right meniscal tear.[25]
[25] Exhibit 1, T Documents, T14, pages 122-125, Medical Report for Nambour Hospital by Dr Cazot dated
In November 2015 Mr Stubbs from the Musculoskeletal Pathway of Care-Multi-Disciplinary Clinic at Gympie Hospital conducted an examination and evaluation of Mr Hurst’s right knee. Mr Stubbs reported as follows:[26]
My clinical assessment revealed a fairly asymptomatic right knee. Contrary to the MRI findings, special testing did not evoke any meniscal pathology…It appears his soft tissue injury has healed, however instability ensues, primarily due to proprioceptive deficits…He now has significant instability due to deconditioning and requires a structured exercise program…
[Mr Hurst agreed that he]:
-    be removed from “the orthopaedic waiting list as surgery is not required”
-    be referred to a physiotherapist
[26]         Exhibit 1, T Documents, T15, pages 126-128, Medical Report by Mr Stubbs dated 6 November 2015.
Dr Mary Piepers provided a medical certificate in November 2015 and reported Mr Hurst’s “right knee degeneration” made him unable to work.[27]
[27] Exhibit 1, T Documents, T17, pages 130, Medical Certificate by Dr Piepers dated 25 November 2015.
Dr Maura Harvey provided a medical certificate in July 2016 and reported that Mr Hurst’s meniscal tear of his right knee made him unable to work.[28]
[28] Exhibit 1, T Documents, T24, page 155, Medical Certificate by Dr Harvey dated 19 July 2016.
Hearing
Mr David Brownstein, Audiologist, reported on 15 July 2016 that Mr Hurst:[29]
[has a] mild sloping to moderate sensorineural hearing loss in the right ear and a mild sloping to severe sensorineural hearing loss in the left ear. [Mr Hurst] has been provided with a pair of hearing aids which should provide an appropriate level of amplification.
[29] Exhibit 1, T Documents, T23, pages 153-154, Report by Mr Brownstein dated 15 July 2016.
JCA Report
The JCA was conducted face-to-face with Mr Hurst on 3 February 2016 by a Mental Health Nurse and a Registered Occupational Therapist. The JCA assessors’ report confirmed that Mr Hurst suffered from the following medical conditions:[30]
·Chronic obstructive pulmonary disease (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Complex tear medial meniscus tear of the right knee and Baker’s cyst (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Spinal-lumbar osteoarthritis (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Cervical spine osteoarthritis (which was found to be fully diagnosed but not fully treated and not fully stabilised
[30] Exhibit 1, T Documents, T18, pages 131-137, Job Capacity Assessment report dated 17 February 2016.
Conclusion on Impairments
The Secretary accepts that Mr Hurst had Impairments which satisfied section 94(1)(a) during the Qualification Period.[31]
[31] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 3 February 2017, at para 31.
In light of the above evidence I conclude that during the Qualification Period Mr Hurst suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
·Complex radial meniscus tear of the right knee and Baker’s cyst
·Spinal-lumbar osteoarthritis
·Cervical spine osteoarthritis
In relation to the COPD condition, there is insufficient medical evidence to determine how this condition was diagnosed, whether or not this condition has been fully diagnosed, the status of this condition during the Qualification Period, and whether or not this condition is having any impact of Mr Hurst’s ability to function. Therefore, I find that Mr Hurst’s COPD condition cannot be considered as an Impairment for the purpose of section 94(1)(a) of the Act.
In relation to the hearing loss the only medical evidence available dates 5 months after the Qualification Period.[32] There is no corroborating evidence of this condition in the Qualification Period. Further, even if there was, it would appear that Mr Hurst did not commence treating the condition with hearing aids until July 2016. There is also no evidence regarding how this condition impacted on Mr Hurst’s ability to function as at the Qualification Period. In light of the insufficient evidence available I find that Mr Hurst’s hearing condition is not an Impairment for the purpose of section 94(1)(a) of the Act.
DO MR HURST’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[32] Exhibit 1, T Documents, T23, pages 153-154, Report by Mr Brownstein dated 15 July 2016.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[33] They are function based[34] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[35]
[33] Determination, ss 4(2) and 5(2)(a).
[34] Determination, s 5(2)(b) and (c).
[35] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[36]
(a)the condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[36] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[37]
[37] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Hurst’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[38]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[38] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[39] the following is to be considered:[40]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[39] For the purposes of ss 6(4)(a) and (b) of the Determination.
[40] Determination, see s 6(5).
A condition is fully stabilised[41] if:[42]
(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;[43] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[41] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[42] Determination, see s 6(6).
[43] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Mr Hurst’s medical history, in relation to the condition causing the Impairments.[44]
RIGHT KNEE IMPAIRMENT
[44] Determination, see s 6(2).
Is Mr Hurst’s Chronic right knee impairment permanent and likely to persist
The JCA concluded that Mr Hurst’s right knee impairment was fully diagnosed but not fully treated and not fully stabilised because subsequent assessment and treatment options may further reduce symptoms.[45]
[45] Exhibit 1, T Documents, T18, page 132, Job Capacity Assessment dated 17 February 2016.
At the hearing before me the Secretary submited that Mr Hurst’s right knee impairment was fully diagnosed, not fully treated and not fully stabilised in the Qualification Period because, as at the Qualification Period, Mr Hurst:[46]
(a)had not received the appropriate recommended treatment of a structured exercise program;
(b)had been re-referred for surgical assessment; and
(c)further treatment was proposed.
[46] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 3 February 2017, paras 35-36.
The medical evidence available shows that:
(a)On 5 August 2015 Dr Cazot referred Mr Hurst to a specialist;[47]
(b)An opinion from Mr Stubbs (qualifications unknown) of the Musculoskeletal Pathway of Care Screening Clinic in November 2015 (which is proximate to the Qualification Period) was that:[48]
(i)special testing did not evoke any meniscal pathology;
(ii)surgery was not required; and
(iii)physiotherapy and a structured exercise program was the recommended treatment for his soft tissue injury.
[47] Exhibit 1, T Documents, T14, pages 122-125, Medical Report for Nambour Hospital by Dr Cazot dated 5 August
2015.
[48] Exhibit 1, T Documents, T15, pages 126-128, Medical Report by Dr Stubbs dated 6 November 2015.

There is no medical evidence that Mr Hurst had the treatment recommended by Mr Stubbs.
Contrary to the earlier opinion of Mr Stubbs, Daevyd Rodda, Orthopaedic Surgeon, determined surgery was required and in October 2016 Mr Hurst underwent an arthroscopy and posterior cyst debridement.[49]
[49] Exhibit 6, Report of Dr Rodda dated 9 November 2016.
In November 2016 an ultrasound of Mr Hurst’s right leg was performed. The results show a small Baker’s cyst and that no muscle tear was present.[50] This indicates that the right knee meniscal tear injury is no longer present and that until the arthroscopy was performed, this condition was not fully treated and not fully stabilised. That is, this condition had not been fully treated until after the Qualification Period.
[50] Exhibit 7, Ultrasound report dated 23 November 2016.
In December 2016 Mr Hurst was again reviewed by Dr Daevyd Rodda, Orthopaedic Surgeon, regarding his right knee popliteal cyst. Dr Rodda referred Mr Hurst for an ultrasound guided aspiration and further review in 3 months time.[51] This supports a finding that as the Qualification Period this condition had not been fully treated and was not fully stabilised.
[51] Exhibit 4, Report of Dr Rodda dated 28 December 2016.
At the hearing Mr Hurst confirmed that he is awaiting surgical intervention for the Baker’s cyst in the right knee and that this condition was not yet fully treated.
I find that Mr Hurst’s condition had not been fully treated or fully stabilised within the Qualification Period.
As a result I find that Mr Hurst’s right knee Impairment is not permanent and no Impairment Rating can be assigned.
Mr Hurst is, of course, able to submit a new application for DSP in the event that his condition does not improve and becomes permanent.
CERVICAL SPINE IMPAIRMENT
Is Mr Hurst’s cervical spine impairment permanent and likely to persist for at least 2 years?
The medical evidence concerning Mr Hurst’s cervical spine impairment is set out in paragraphs 14-18 above.
The Secretary submits that Mr Hurst’s that this impairment is not fully diagnosed, not fully treated and not fully stabilised.[52]
[52] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 3 February 2017, para 38.
In February 2016 the JCA concluded that this condition was not fully treated and not fully stabilised because Mr Hurst was awaiting specialist review and it was not clear whether all reasonable treatment options had been considered and accessed.[53]
[53] Exhibit 1, T Documents, T18, page 133, Job Capacity Assessment dated 17 February 2016.
Subsequent to the hearing Mr Hurst provided a Musculoassessment Report prepared in October 2014 by Mr Russell Macdonald, Physiotherapist.[54] This report was prepared as a pre-employment musculoskeletal assessment for a future employer. Mr Macdonald notes that Mr Hurst reported having attended 4 physiotherapy sessions at Nambour General Hospital but that he had continued to experience left arm dysesthesia. No records of these physiotherapy appointments at Nambour General Hospital have been provided. Mr Macdonald concluded that there were “no obvious physical issues to preclude [Mr Hurst] from taking up a position as a Process Operator”. Mr Hurst says that his ailments have deteriorated since that time.[55]
[54] Musculoassessment Report prepared in October 2014 by Mr Russell Macdonald.
[55] Email from Mr Hurst dated 27 March 2017.
The Secretary submitted that the information from Mr MacDonald notes that, “assessment of the lumbar spine revealed normal range of motion in all planes” and that Mr Hurst would “benefit from ongoing application of learnt postural correction exercises”. The Secretary says that given those comments, the Secretary's position has not changed and the submission remains that the back condition attracts 0 points at most under Table 4.[56]
[56] Email from Ms Forsyth, for the Secretary, dated 6 April 2017.
Mr Hurst submitted that Mr MacDonald was “not a qualified Doctor as such” and that his “report is realistically invalid, as it was done on 4/11/2014 which was prior” to his “having CT, Ultra Sound and x-rays”.[57] Given Mr Hurst’s submission I am not sure why he elected to submit Mr MacDonald’s report.
[57] Email from Mr Hurst dated 7 April 2017.
As at the Qualification Period Mr Hurst was being treated with medication but had not had any physiotherapy or specialist review. I find that this impairment was neither fully treated nor fully stabilised.
Mr Hurst was reviewed by the neurosurgical outpatient clinic in June 2016. Dr Julia Brandenburg, Neurosurgery Registrar, reported that Mr Hurst has:[58]
…paraesthesia of his left arm…permanent decreased sensation below the elbow, this effects all of his fingers and is non-dermatomal in distribution.
[Mr Hurst’s] symptoms are difficult to localise as they are non-dermatomal in nature. For this reason we will arrange for some further investigations prior to considering whether surgical intervention is likely to be of use.
[58] Exhibit 1, T Documents, T19, pages 138, Medical report by Dr Brandenburg dated 22 June 2016.
Although this review is after the Qualification Period it indicates that further investigations were still required to determine what would constitute reasonable treatment for this impairment.
In or around November 2016, Dr Ma, Neurosurgeon, referred Mr Hurst for a left C6 nerve root block. M Hurst told Dr Ma’s clinic that it had not relieved his pain. A nerve condition study was also undertaken. Dr Ma recommended a left C7 nerve root block.[59]
[59] Exhibit 8, Report of Dr Michael Colditz, Neurosurgery Registrar for Dr Ma, dated December 2016.
In February 2017 Mr Hurst was reviewed by Dr Lackey, Neurosurgeon, who organised for Mr Hurst to have facet injections and reported that, depending on the outcome of those injections, Mr Hurst may be referred to a pain clinic for radiofrequency ablation. Dr Lackey has also reported he will review Mr Hurst in May 2017 and will discuss with Mr Hurst whether to pursue a left carpel tunnel release.[60] This indicates that as at today, this condition has not yet been fully treated and fully stabilised.
[60] Exhibit 5 Report of Dr Alan Lackey, SHO Neurosurgery, dated February 2017.
I find that Mr Hurst’s cervical spine impairment was not fully treated or fully stabilised within the Qualification Period
Therefore, I am unable to assign an Impairment Rating for this condition.
SPINAL LUMBAR OSTEOARTHRITIS
Is Mr Hurst’s spinal lumbar osteoarthritis impairment permanent and likely to persist
The medical evidence concerning Mr Hurst’s lumbar spine condition is set out in paragraphs 19-22 above.
In February 2016 the JCA reported that it is unclear whether further physiotherapy or specialist review would assist in improving this condition and that as a result it was unclear whether all reasonable treatment options had been considered/accessed.[61]
[61] Exhibit 1, T Documents, T18, page 133, Job Capacity Assessment dated 17 February 2016.
In June 2016 Dr Dark reported that:[62]
(a)Mr Hurst had had extensive physiotherapy to treat this impairment which had been largely unsuccessful;
(b)this impairment was fully treated as at 24 September 2015; and
(c)Mr Hurst has ongoing pain and radiculopathy predominantly in the right leg.
[62] Exhibit 1, T Documents, T22, page 142, Medical Report by Dr Dark dated 20 June 2016.
The Secretary concedes that Mr Hurst’s spinal lumbar osteoarthritis is fully treated and fully stabilised.[63] I agree with the Secretary.
[63] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 3 February 2017, para 44.
Using the Impairment Tables
I have to assess the level of impact of Mr Hurst’s lumbar spine Impairment against the descriptors[64] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[65]
[64]Determination, see ss 3 and 5(3).
[65] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[66]
[66] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[67]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[67] Determination, see s 7.
I must not take into account the following information in applying the Tables:[68]
1)symptoms reported by Mr Hurst in relation to his condition where there is no corroborating evidence;
2)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Hurst’s local community.
[68] Determination, see s 8.
Which Tables are appropriate are determined by:[69]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[69] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[70]
[70]Determination, see s 10(3).
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.[71]
[71]Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[72]
[72]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[73]
[73]Determination, see s 11(5).
Evidence Identifying the Loss of Function
At the hearing before me Mr Hurst gave evidence that:
·he has difficulties with lifting his arms overhead and sustaining overhead activities as a result of his neck (cervical spine) Impairment not his Lumbar Spine Impairment
·he can drive a car but after a little while his arm becomes numb and tingly and he can only drive with one arm
·he can still use a ride on mower but he needs to take regular breaks due to back pain.
·he can dress himself, including putting on a t-shirt by lifting his arms up, but that his arm goes numb.
·he has difficulty walking up slight inclines and can walk for 20 meters before feeling pain in his back and legs
·he can bend over to pick something off a table at knee height
·he sometimes needs some assistance to get out of a chair.
·he occasionally uses a cane when walking
The only corroborating medical evidence identifying the impact on Mr Hurst’s ability to function as a result of this Impairment is provided by Dr Dark.
Dr Dark reported that Mr Hurst:[74]
·Can drive and sit in a car for 30 minutes;
·Is unable to sustain overhead activities
·Has difficulty bending forward to pick up objects.
[74] Exhibit 1, T Documents, T22, page 143, Medical Report by Dr Dark dated 20 June 2016.
There is no corroborating medical evidence that Mr Hurst sometimes needs assistance to get up out of a chair. Self- report alone is insufficient.
The JCA reported as follows:[75]
[Mr Hurst] reported sitting limited to 30 minutes; bending restricted – squats to reach the floor (this is limited due to knee condition) and can reach/bend to knee level
[75] Exhibit 1, T Documents, T18, page133, JCA Report dated 17 February 2016.
At the hearing, Mr Hurst did not dispute the reports of the JCA or Dr Dark.
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 4 of the Determination which deals with Spinal Function is the relevant Table.
Table 4 – Spinal Function
The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submitted that the appropriate Impairment Rating under Table 4 is 5 points.[76] Mr Hurst submitted that the appropriate Impairment Rating under Table 4 was the highest available.
[76]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 3 February 2017, para 44.
In order to assign an Impairment Rating of 5 points the evidence would need to show that Mr Hurst has some difficulty in:
(a)activities overhead height (e.g. activities requiring the person to look upwards); or
(b) bending to knee level and straightening up again without difficulty; or
(c)turning their trunk or moving their head (e.g. to look to the sides or upwards).
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Hurst is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[Mr Hurst] is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b)[Mr Hurst] has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)[Mr Hurst] is unable to bend forward to pick up a light object placed at knee height; or
(d)[Mr Hurst] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The evidence available indicates that Mr Hurst:
(a)can drive a car for 30 minutes;
(b)the difficulties he has with lifting his arms overhead and sustaining overhead activities is as a result of his neck (cervical spine) impairment, not his lumbar spine impairment; and
(c)is able to bend forward to pick up a light object placed at knee height.
As I have found that no Impairment Rating can be assigned for Mr Hurst’s neck (cervical spine) Impairment, I can only consider the functional impacts of the Lumbar Spine Impairment.
There was no evidence presented that Mr Hurst is unable to:
(a)perform any overhead activities due to his lumbar spine condition; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
The primary condition causing an impact on Mr Hurst’s ability to function is the cervical spine Impairment. Putting aside the Cervical Spine Impairment, Mr Hurst’s lumbar spine Impairment attracts an Impairment Rating of 5 points.
CONCLUSION
As I have concluded that Mr Hurst’s Impairments attract an Impairment Rating of 5 points during the Qualification Period it is unnecessary for me to consider whether Mr Hurst had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Mr Hurst’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).
The decision under review is affirmed.

I certify that the preceding 100(one-hundred) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 8 May 2017

Date of hearing: 23 March 2017

Date final submissions received: 6 April 2017

Applicant: In person

Solicitors for the Respondent: Department of Human Services

5 August 2015.

[2017] AATA 605

8 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	23 March 2017
Date final submissions received:	6 April 2017
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services