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

[2015] AATA 617

Johnson and Secretary, Department of Social Services (Social services second review) [2015] AATA 617 (20 August 2015)

Division	GENERAL DIVISION
File Number(s)	2014/6515
Re	Stephen Johnson
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Senior Member CR Walsh
Date	20 August 2015
Place	Perth

The Tribunal affirms the decision under review.

......(Sgd) CR Walsh..................................................................

Senior Member CR Walsh

CATCHWORDS

SOCIAL SECURITY – disability support pension – applicant’s impairments (hyper somnolence/narcolepsy/sleep apnoea, rheumatoid arthritis, ischaemic heart disease, hypertension, kidney disorder, gout, depression and hypothyroidism) did not attract at least 20 points under the impairment tables as at the relevant period – decision under review affirmed

LEGISLATION

Social Security Act 1991 – s 94(1)(a) – s 94(1)(b) – s 94(1)(c) – s 94(2)(aa) – s94(2)(a) – s 94(2)(b)

Social Security (Administration) Act 1999 – s 13 – s 41 – s 42 - cl 3 of Schedule 2 – cl 4(1) of Schedule 2

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3 – s 6(1) – s 6(3) – s 6(4) – s 6(5) – s 6(6) – s 6(7) – s 11(4)

CASES

Re Fanning and Secretary, Department of Social Services [2014] AATA 447

Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606

SECONDARY MATERIALS

Guidelines to the Tables for Assessment of Work-related Impairments for DSP

REASONS FOR DECISION

Senior Member CR Walsh

20 August 2015

INTRODUCTION

1. Mr Johnson seeks a review of a decision of the Social Security Appeals Tribunal (SSAT), dated 17 November 2014, which affirmed a decision of a Centrelink authorised review officer (ARO), dated 20 August 2014,[1] that Mr Johnson was not qualified for disability support pension (DSP) under s 94(1) of the Social Security Act 1991 (SSA) because his impairments (hyper somnolence/narcolepsy/sleep apnoea, rheumatoid arthritis ischaemic heart disease, hypertension, kidney disorder, gout, depression and hypothyroidism) did not attract at least 20 points under the impairment tables (Impairment Tables) in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Impairment Tables Determination) as at the relevant period (i.e. up to and including 14 November 2013 to 13 February 2014).[2]

   [1] The ARO’s decision affirmed an earlier decision of a Centrelink officer, dated 23 December 2013.

   [2] Refer to paragraphs 10 and 11 below.

   FACTUAL & PROCEDURAL BACKGROUND

2. On 10 October 2013, Mr Johnson lodged a Centrelink “Claim for Disability Support Pension” form (dated 3 October 2013) with Centrelink.

3. On 14 November 2013, Mr Johnson lodged a further Centrelink “Claim for Disability Support Pension” form (dated 13 November 2013) with Centrelink (Mr Johnson’s DSP Claim), stating:

   ·     he suffers from heart damage (heart attacks), rheumatoid arthritis, osteoarthritis and sleep disorder for which he is currently receiving treatment;

   ·     his treatment leaves him unable to do his normal work routine due to excessive sleepiness and body fatigue;

   ·     he is a self-employed qualified cabinet maker; and

   ·     he has not in the past 3 years participated in any programs of support.

4. On 23 December 2013, Centrelink decided that Mr Johnson was not qualified for DSP because he had been assessed as “not having an impairment rating of 20 points or more” (Original Decision).

5. On 7 February 2014, Mr Johnson requested an internal review of the Original Decision.

6. On 20 August 2014, the ARO affirmed the Original Decision (ARO Decision).  In the ARO Decision, the ARO made the following key findings:

   On 26 September 2013 you contacted the department to lodge a claim for Disability Support Pension.

   As per the medical evidence, you have medical conditions of hyper somnolence, narcolepsy and sleep apnoea.  You also have medical conditions of rheumatoid arthritis & gout, ischaemic heart disease, hypertension, chronic renal failure, hypothyroidism, and anxiety & depression.

   Your treated and stabilised conditions of rheumatoid arthritis & gout conditions rate 10 impairment points.

   Your conditions of hyper somnolence, narcolepsy, sleep apnoea, ischaemic heart disease, hypertension, chronic renal failure, hypothyroidism, and anxiety & depression are not considered fully treated and stabilised and/or having a minimal or limited impact on your ability to function.

   You do not have a sever impairment as defined by the legislation.

   You do not have a continuing inability to work 15 hours per week as defined by the legislation.

7. On 17 October 2014, Mr Johnson sought review of the ARO Decision by the SSAT. In affirming the ARO Decision (SSAT Decision), the SSAT found that Mr Johnson’s:

   ·     idiopathic hyper somnolence/narcolepsy and chronic renal disease were not fully diagnosed, treated and stabilised;

   ·     anxiety and depression had not been diagnosed by a psychiatrist or clinical psychologist and therefore could not be assigned an impairment rating under the Impairment Tables;

   ·     coronary artery disease and hypertension have minimal impact on his ability to function; and

   ·     rheumatoid arthritis condition is permanent and has a moderate impact on his ability to function and assigned the condition a rating of 10 points on Table 1 of the Impairment Tables (SSAT Decision).

   8.On 16 December 2014, Mr Johnson applied to the Administrative Appeals Tribunal

   (Tribunal) for a review of the SSAT Decision.   Attached to Mr Johnson’s application was a letter from Mr Johnson’s wife, Mrs Debbie Johnson, which states:

   The decision is wrong and unfair as Stephen’s medical conditions have worsened and his health and mental well-being have deteriorated.  Stephen’s medical problems are very complex, and his chronic illnesses make diagnosis difficult.  His medical practitioners are carefully working thru these complexities, and have provided evidence of the difficulties in diagnosing Stephen’s physical and mental ailments.  This evidence has come from Stephen’s specialist medical practitioners, and a medical practitioner trained and qualified in mental health issues.  The evidence in relation to his depression though legitimate and factual has been devalued by the Department; who have advised Stephen needs to provide evidence from either a treating psychiatrist or clinical psychologist to meet the requirements in relation to support the diagnosis of depression.  I believe it is unfair that the evidence from a registered medical practitioner has been devalued by the Department who consider evidence from a health care professional with no medical degree i.e. psychologist, has a greater validity that (sic) the evidence from a registered medical practitioner qualified in mental health.  It is not in the public interest or in Stephen’s for him to be clogging up public health systems to comply with Centrelink reporting requirements.  These requirements exacerbate his mental illness and coping mechanisms, and impact on his treatment, additionally these requirements are not cost effective.

   The rejection of claim from Centrelink was 23/12/2013.  We did not agree with this and appealed this decision.  We had no further contact from a Centrelink Officer regarding this appeal for another eight months – 20/8/2014!!  This was a cold call Stephen took from an ARO who woke him up and proceeded with a barrage of questions.  When I got home Stephen was quite agitated and distressed by this event.  Stephen regularly sleeps/rests for more that (sic.) 14-16 hours on any given day.  He is a diagnostic dilemma.

   Stephen has been waiting for an EEG with video surveillance for over 3 months and has been told there could be a wait of up to 12 months.

   ISSUES

8. In reviewing the SSAT Decision, the relevant issues for consideration by the Tribunal are:

   (i)Whether Mr Johnson had a physical, intellectual or psychiatric impairment as at the “relevant period” (refer to paragraphs 10 and 11 below), as required by s 94(1)(a) of the SSA;

   (ii)if so, whether as at the “relevant period” (refer to paragraphs 10 and 11 below) the impairment attracted at least 20 points on the Impairment Tables, as required by s 94(1)(b) of the SSA; and

   (iii)if so, whether Mr Johnson has a “continuing inability to work”, as required by s 94(1)(c)(i) of the SSA.

   ANALYSIS

   Relevant Period

   10.The Social Security (Administration) Act 1999 (SSAA) provides that the “start-day” for a qualified DSP claimant is the date of the claim:  s 13, s 41, s 42 and cl 3 of Schedule 2 of the SSAA.  This means that qualification for DSP and impairment ratings must be determined as at the date of the claim.  The only exception is where the claimant is not qualified on the date of the claim but “will…become qualified” and “becomes so qualified” within 13 weeks of lodging a claim, in which case the “start-day” is the day the claimant became qualified:  cl 4(1) of Schedule 2 of the SSAA.

   11.Consequently, the relevant period for consideration of Mr Johnson’s qualification for DSP is 14 November 2013 (being the date of Mr Johnson’s DSP Claim) to 13 February 2014 (being 13 weeks after the date of Mr Johnson’s DSP Claim) (Relevant Period).[3]

   [3] See Swanson and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2009] AATA 606 at [7] and [8].

   Medical evidence

   12.Set out below is a summary of the medical evidence relevant to Mr Johnson’s application as it relates to Mr Johnson’s medical conditions prior to and including the Relevant Period:  refer to paragraphs 10 and 11 above.

   Job Capacity Assessments

9. On 20 November 2013, Mr Johnson attended a Job Capacity Assessment (JCA) with a qualified social worker and a registered occupational therapist (JCA Assessors).  

10. In the JCA Report, dated 17 December 2013 (17 December 2013 JCA Report), and their JCA Report, dated 20 December 2013 (20 December 2013 JCA Report), the JCA Assessors accepted that Mr Johnson has the following medical conditions:

    (i)rheumatoid arthritis;

    (ii)hypertension;

    (iii)coronary artery disease; and

    (iv)kidney disorder.

1. In the 17 December 2013 JCA Report and the 20 December 2013 JCA Report, the JCA Assessors found:

   ·the rheumatoid arthritis condition impacted on Mr Johnson’s functions requiring physical exertion and stamina and gave the condition a rating of 10 points on Table 1 of the Impairment Tables; and

   ·the hypertension, coronary artery disease and kidney disorder conditions could not be provided a rating as they were not considered fully diagnosed, fully treated and fully stabilised. The JCA Assessors required additional information regarding treatment and prognosis to consider permanency.

   ·The JCA Assessors also found that the applicant has depression, pending diagnosis and a presumptive diagnosis of idiopathic hyper somnolence.

2. In the 17 December 2013 JCA Report, the JCA Assessors also found that Mr Johnson’s baseline work capacity was assessed as 0-7 hour per week with a capacity to work within two years with intervention of 8-14 hours per week.

3. In the 20 December 2013 JCA Report, the JCA Assessors also found that Mr Johnson’s baseline work capacity was assessed as 0-7 hour per week with a capacity to work within two years with intervention of 15-22 hours per week.

4. On 19 February 2014, Mr Johnson attended a further JCA with JCA Assessors qualified in the disciplines of psychology and occupational therapy.  On 28 February 2014, the JCA Assessors provided their report in relation to the applicant’s job capacity (28 February 2014 JCA Report). In the 28 February 2014 JCA Report, the JCA Assessors found that Mr Johnson has the following medical conditions:

   (i)rheumatoid arthritis;

   (ii)nervous system- other (hyper somnolence of unknown cause);

   (iii)ischaemic heart disease;

   (iv)hypertension;

   (v)kidney disorder;

   (vi)gout;

   (vii)hypothyroidism; and

   (viii)depression.

1. In the 28 February 2014 JCA Report, the JCA Assessors also found:

   ·     Mr Johnson’s rheumatoid arthritis was fully diagnosed, treated and stabilised and rated it 10 points under Table 1 of the Impairment Tables for physical exertion and stamina;

   ·     Mr Johnson’s ischaemic heart disease was fully diagnosed, treated and stabilised and rated it nil under Table 1 of the Impairment Tables for physical exertion and stamina;

   ·     Mr Johnson’s hypothyroidism was fully diagnosed, treated and stabilised and rated it nil under Table 1 of the Impairment Tables;

   ·     Mr Johnson’s nervous system condition was considered permanent, but was still subject to diagnosis;

   ·     Mr Johnson’s hypertension and kidney disorder conditions were fully diagnosed, however there was insufficient evidence to determine they were fully treated and stabilised;

   ·     there was no indication of referral of psychological assistance in relation to the depression; and

   ·     there was insufficient information to consider the gout condition.

   Dr Wilson Medical Report, dated 13 November 2013

2. In a Centrelink “Medical Report Disability Support Pension”, dated 13 November 2013, Dr Stephen Wilson (Dr Wilson 2013 Medical Report) reported that Mr Johnson has been his patient since 23 January 2002 and he has a “presumptive” diagnosis of “Idiopathic hyper somnolence ? Narcolepsy - excess sleep; can hardly keep awake ? cause”  which affects Mr Johnson’s endurance, neurological / cognitive function, behaviour, planning and interpersonal relationships. Dr Wilson also reported that Mr Johnson’s condition was expected to persist for more than 24 months and the effect of the condition on his ability to function within the next two years was uncertain.

3. In addition, Dr Wilson also reported that Mr Johnson has rheumatoid arthritis that continues to be treated with biological agents, the impact of this condition on Mr Johnson’s ability to function is poor endurance, pain and difficulty for him to perform his trade (as a cabinet maker), this condition was expected to persist for more than 24 months and the effect of the condition on Mr Johnson’s ability to function within the next two years was uncertain.

4. Dr Wilson also considered the conditions of gout, periodic limb movement disorder, problem - alcohol, pterygium, restless legs, rheumatoid arthritis, angina, angioplasty - coronary (with stent) (left), coronary artery disease, gastro-oesophageal reflux, hypercholesterolaemia, myocardial infarction, asthma, angioplasty - coronary (with stent) (right), CPAP, depression - major, obstructive sleep apnoea, mallet finger, vitamin D deficiency, colonoscopy, diverticular disease, hiatus hernia, impaired fasting glycemia, not yet diabetic, vitamin B12 deficiency and hypertension to have a considerable impact on Mr Johnson’s ability to function.

   Dr Maguire Medical Report, dated 26 January 2014

5. In a Centrelink “Medical Report Disability Support Pension”, dated 26 January 2014, Dr Ken Maguire (Dr Maguire Medical Report) reported that Mr Johnson has been a patient of the practice since 12 December 2006 and that he has rheumatoid arthritis which was being treated with a number of medications, Mr Johnson is impacted by poor effort endurance with both upper and lower limbs affected, hand dexterity and extreme issues with tiredness, that the condition is expected to persist for more than 24 months and the impact on Mr Johnson’s ability to function is expected to fluctuate within the next two years.

6. Dr Maguire further reported that Mr Johnson suffers from severe sleep apnoea and narcolepsy, the diagnosis is confirmed by Dr Rod Steens (who is a respiratory and sleep physician), the condition is reported to be treated with CPAP, Sifral D Dopa and Dexamplelamine, the impact on Mr Johnson’s ability to function is reported as severe tiredness, generalised reduced endurance for even activities of daily living, dexterity, attentiveness, sleep factors with Mr Johnson’s trade equipment, the condition is expected to persist for more than 24 months and the impact on Mr Johnson’s ability to function is expected to fluctuate within the next two years.

7. Dr Maguire also reported that Mr Johnson has the following medical conditions which cause minimal or limited impact on his ability to function:

   ·     ischaemic heart disease with reduction in left ventricular function - poor cardiac aerobic tolerance;

   ·     controlled hypothyroidism; and

   ·     anxiety and depression.

   Dr Wilson Medical Report, dated 31 January 2014

8. On 31 January 2014, Dr Wilson provided a further Centrelink “Medical Report Disability Support Pension” (Dr Wilson 2014 Medical Report) in which he reported that Mr Johnson has gout, hypertension, rheumatoid arthritis, chronic renal failure, coronary artery disease, overweight, obstructive sleep apnoea and severe hyper somnolence of “Unknown Cause”.

9. Dr Wilson considered the hyper somnolence condition to have the most impact on Mr Johnson, reporting that it is a presumptive diagnosis with further tests and investigations planned by Dr Rod Steens, the condition has been treated with CPAP and trials of stimulant medication, pain, stiffness and fatigue impact on Mr Johnson’s ability to function, the condition is expected to persist for more than 24 months and the impact on Mr Johnson’s ability to function will fluctuate within the next two years and deteriorate.

10. Dr Wilson also reported that the rheumatoid arthritis condition was a confirmed diagnosis by Dr Maguire, the same treatment was intended to continue for the future, the impact on Mr Johnson’s ability to function included endurance and movement/dexterity, the condition was expected to persist for more than 24 months and the impact of the condition on Mr Johnson’s ability to function was expected to fluctuate within the next two years and was uncertain.

    Dr Silbert Medical Report, dated 12 February 2014

11. On 12 February 2014, Dr Peter Silbert, Neurologist, provided a report concerning Mr Johnson’s somnolence (Dr Silbert Medical Report), stating:

    His cranial MRI was reported as normal but it does show frontal atrophy and probably also some temporal pole atrophy.

    Neurological examination revealed symmetrical reflexes with bilaterally downgoing plantar responses and a normal sensory examination.  He had a slightly antalgic gait related to his degenerative arthritis.  His affect was quite flat during the consultation, but he participated readily.

    ……..

    Over 2013 Stephen developed increasing sleepiness, such that he was spending up to 16 hours per day in bed.  He probably does have REM sleep behaviour disorder, as Debbie describes over the last 6-12 months episodes at night where he will lie in bed with his eyes open, talking, moving, and occasionally falling out of bed.  He looks anxious during these episodes and there are goosebumps over his arms.

    REM sleep behaviour disorder is often seen in degenerative brain conditions, and that might be consistent with his developing frontotemporal syndrome.  That would also explain his difficult to treat and increasing depressive symptoms.

    Stephen does need to (sic.) alterations to his antidepressants as his depression is currently not well treated.  I have explained to him that he is self medicating with alcohol, but alcohol is the most reversible factor he has for all of his problems.  He needs to curtail that back to 1-2 standard drinks per day at a maximum.

    In terms of further management, frontotemporal syndrome is very difficult to prove as the diagnosis.  Obviously follow-up will help, but an EEG and formal neuropsychometric testing may be helpful…..

    Other medical reports

    30.Mr Johnson also seeks to rely upon a number of other medical reports which are outside the Relevant Period (refer to paragraphs 10 and 11 above), including:

    ·     the medical report of Dr Wilson, dated 14 March 2014, in which Dr Wilson reports “longstanding rheumatoid arthritis with its pain, disablement and reduced functionality” and that Mr Johnson has “established Coronary Artery Disease”; disease;

    ·     medical reports by Professor P Pangegyres, neurologist, dated 28 May 2014, 20 August 2014 and 24 September 2014, in which he Professor Panegyres reports that Mr Johnson has a 15 year history of obstructive sleep apnoea, a 10 year history of depression (which is being treated with Duloxetine), but with no referral to a psychiatrist and a history of rheumatoid arthritis;

    ·     the medical report of Dr Michael G Prichard, respiratory and sleep physician, dated 24 September 2014, in Dr Prichard he confirms Dr Steens’ diagnosis of severe obstructive sleep apnoea/hypopnoea and REM sleep behaviour disorder;

    ·     the medical report of Dr D Langlands, rheumatologist, dated 27 September 2014; and

    ·     a “Health Summary Sheet” provided by Dr Wilson, dated 13 November 2014.[4]

    [4] These medical reports are only relevant to this application in so far as they concern Mr Johnson’s medical conditions prior to and including the Relevant Period”:  refer to paragraphs 10 and 11 and see Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at 31.

    Qualification for a Disability Support Pension

    31.The requirements for qualification for DSP are set out in s 94(1) of the SSA, as follows:

    94       Qualification for disability support pension

    (1)       A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)       one of the following applies:

    (i)        the person has a continuing inability to work;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and

    …………

    [Emphasis added]

    Impairment – s 94(1)(a)

1. The term “impairment” is not defined in the SSA. However, s 3 of the Impairment Tables Determination defines “impairment” to mean:

   A loss of functional capacity affecting a person’s ability to work that results from the person’s condition.

2. It is not in dispute that Mr Johnson suffered from “impairments” arising from his hyper somnolence condition, rheumatoid arthritis, ischaemic heart disease, hypertension, kidney disorder, gout, depression and hypothyroidism conditions as at the Relevant Period and, therefore, he satisfies s 94(1 )(a) of the SSA.

   20 points under Impairment Tables – s 94(1)(b)

3. A person’s level of impairment 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: s 6(1) of the Impairment Tables Determination.

4. 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: s 6(2) of the Impairment Tables Determination.

5. The “Introduction” to the Impairment Tables sets out that an impairment rating can only be allocated in relation to an impairment if the condition causing the impairment is “permanent” and the impairment is “likely to persist for more than 2 years”: s 6(3) of the Impairment Tables Determination.

6. A condition will be “permanent” if it is “fully diagnosed” by an “appropriately qualified medical practitioner”, “fully treated”, “fully stabilised” and “likely to persist for more than 2 years”: s 6(4) of the Impairment Tables Determination.

7. An “appropriately qualified medical practitioner” means a medical practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables Determination.

8. In determining whether a condition has been “fully diagnosed” and “fully treated”, the following must be considered:

   (i)Whether there is corroborating evidence of the condition;

   (ii)What treatment or rehabilitation has occurred in relation to the condition; and

   (iii)Whether treatment is continuing or is planned in the next two years: s 6(5) of the Impairment Tables Determination.

9. In relation to what is meant by “fully stabilised”, s 6(6) of the Impairment Tables Determination provides:

   Fully Stabilised

   (6)For the purposes of s 6(4)(c) and s 11(4) of the Impairment Tables Determination, a condition is fully stabilized if:

   (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.  [Emphasis added]

10. Section 6(7) of the Impairment Tables Determination provides that “reasonable treatment”, for the purposes of s 6(6) of the Impairment Tables Determination, is treatment that:

    (a)  is available at a location reasonably accessible to the person; and

    (b)  is at a reasonable cost; and

    (c)  can reliably be expected to result in a substantial improvement in functional capacity; and

    (d)  is regularly undertaken or performed; and

    (e)  has a high success rate; and

    (f)    carries a low risk to the person.

    Hyper somnolence/Narcolepsy/Sleep Apnoea

11. Based on the medical evidence and, in particular, the Dr Silbert Medical Report (refer to paragraph 29 above), the Tribunal finds that Mr Johnson’s hyper somnolence/narcolepsy/ hyper somnolence/narcolepsy/sleep apnoea condition was not fully diagnosed, fully treated and fully stabilised as at the Relevant Period and, therefore, the condition cannot be assigned a rating under the Impairment Tables.

12. In reaching this finding, the Tribunal also notes the SSAT Decision, which states:

    18.At hearing Mr Johnson acknowledged that he still does not have a confirmed diagnosis for his sleep disorder.  He is awaiting a further appointment at the Sleep Clinic for testing over several days.

    Rheumatoid Arthritis

13. It is not in dispute that Mr Johnson’s rheumatoid arthritis condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period:  see paragraph 23 above which refers to the Dr Maguire Medical Report.

14. In the Dr Maguire Medical Report, Dr Maguire reports that Mr Johnson’s rheumatoid arthritis affects his hand dexterity and is a major issue for his job as a carpenter.  Dr Maguire also reports Mr Johnson’s current symptoms as poor tolerance with arm elevation, knee pain/swelling with prolonged standing, neck pain/headaches—both working with head flexed forward and with sleep posture and that the condition result in poor effort endurance with both upper and lower limbs affected and causes extreme issues with tiredness:  see paragraph 23 above.

15. In addition, Mr Johnson’s DSP Claim, Mr Johnson reported that he finds carrying of excessive weights very difficult and that he is not able to perform a full day’s work. 

16. Further, in relation to this condition, the SSAT Decision states:

    22.…Mr Johnson confirmed that he is only able to undertake most activities for a short period due to the pain. Excessive physical exertion often results in him being bedridden the following day. He mows the lawn using a ride on mower; however he has to stop after about an hour. He avoids using stairs. He is able to use public transport and can walk unaided, but only for short distances. He does not use any walking aids. When the condition flares up, his hands swell to such an extent that he has difficulty gripping things. The swelling also affects his feet.

17. Based on the medical evidence and Mr Johnson’s evidence, the Tribunal considers that Mr Johnson’s rheumatoid arthritis condition should be assessed on Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina).

18. A permanent impairment with “moderate” functional impact on activities requiring physical exertion or stamina attracts 10 points under Table 1 of the Impairment Tables.  This will be the case where:

    (1)  The person:

    (a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

    (i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilitate; or

    (ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths);  and

    (b)is able to:

    (i)Use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

    (ii)Perform work-related tasks of a clerical, sedentary or stationary nature (i.e. tasks not requiring a high level of physical exertion).

19. Based on the medical evidence and Mr Johnson’s evidence, the Tribunal finds that Mr Johnson’s rheumatoid arthritis condition attracted 10 points under Table 1 of the Impairment Tables, as at the Relevant Period, as it had “moderate” functional impact on activities requiring physical exertion and stamina.

    Ischaemic heart disease

20. It is not in dispute that Mr Johnson’s ischaemic heart disease condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period:  refer to paragraph 25 above which refers to the Dr Maguire Medical Report and paragraph 26 which refers to the Dr Wilson 2014 Medical Report.   

21. Further, in relation to this condition, the SSAT Decision states:

    24.Mr Johnson advised that he had two stents inserted a number of years ago and had a recent hospitalisation as a partial blockage had developed.  However he acknowledged that generally his heart disease and his hypertension are controlled by medication.

22. Based on the medical evidence and Mr Johnson’s evidence, the Tribunal considers that Mr Johnson’s ischaemic heart disease condition should be assessed under Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina) .

23. A permanent impairment with “no” functional impact on activities requiring physical exertion or stamina attracts 0 points under Table 1 of the Impairment Tables.  This will be the case where:

    (1)  The person

    (a)  is unable to undertake exercise appropriate to their age for at least 30 minutes at a time; and

    (b)  has no difficulty completing physically active tasks around their home and community.

24. Based on the medical evidence and Mr Johnson’s evidence, the Tribunal finds that Mr Johnson’s ischaemic heart disease condition should be given a nil rating under Table 1 of the Impairment Tables as the condition had minimal or limited impact on Mr Johnson’s ability to function as at the Relevant Period.

    Hypertension

25. Based on the medical evidence and, in particular, the JCA Report, dated 28 February 2014 (refer to paragraph 19 above), the Tribunal finds that Mr Johnson’s hypertension condition was not fully diagnosed, fully treated and fully stabilised as at the Relevant Period and, therefore, the condition cannot be assigned any points under the Impairment Tables.

    Kidney disorder

26. Based on the medical evidence and, in particular, the 28 February 2014 JCA Report (refer to paragraph 19 above), the Tribunal finds that Mr Johnson’s kidney disorder condition is not fully diagnosed, fully treated and fully stabilised and, therefore, cannot be assigned an impairment rating under the Impairment Tables.

27. Further, the SSAT Decision states:

    25.Dr Wilson provided no evidence in relation to the chronic renal disease.  Mr Johnson said that he is not having any investigation or treatment into this particular problem at the moment, whilst his other issues are being investigated. 

    Gout

28. Based on the medical evidence, the Tribunal finds that Mr Johnson’s gout condition cannot be considered fully diagnosed, fully treated and fully stabilised as at the Relevant Period and, therefore, the condition cannot be assigned any points under the Impairment Tables.  More specifically, the Tribunal notes that there is insufficient evidence in relation to the diagnosis of Mr Johnson’s gout by Dr Wilson:  refer to paragraphs 22 and 26 above.   The Tribunal also notes that whilst Dr Langland’s medical report, dated 27 September 2014 (refer to paragraph 30 above), refers to “gouty changes” in Mr Johnson, it is outside the Relevant Period.

    Anxiety & Depression

29. Based on the medical evidence and, in particular, the Dr Maguire Medical Report (refer to paragraph 25 above), and the Dr Silbert Medical Report (refer to paragraph 29 above), the Tribunal finds that Mr Johnson’s anxiety and depression conditions were not fully diagnosed, fully treated and fully stabilised as at the Relevant Period.

30. As noted above (in paragraph 37), a condition can only be considered “permanent” under s 6(4) of the Impairment Tables Determination (and assigned an impairment rating under the Impairment Tables) if it has been “fully diagnosed by an appropriately qualified medical practitioner”, meaning a medial practitioner whose qualifications and practice are relevant to diagnosing a particular condition: s 3 of the Impairment Tables Determination.

31. In relation to anxiety/depression, the Guidelines to the Tables for Assessment of Work-related Impairments for DSP, from 1 January 2012, state (at p 5) that an appropriately qualified medical practitioner includes a general practitioner or a psychiatrist. But, where the appropriately qualified medical practitioner is not a psychiatrist, the diagnosis must be made by a general practitioner with evidence from a clinical psychologist.  This is a mandatory requirement.  Consequently, in the absence of confirmatory evidence from a psychiatrist or clinical psychologist (which Mr Johnson does not have), a rating cannot be assigned in respect of Mr Johnson’s anxiety/depression conditions under Table 5 of the Impairment Tables (Mental Health Function).

32. For completeness, the Tribunal notes that the reports of Mr Johnson’s anxiety/depression by Dr Wilson, dated 14 March 2014, Professor Pangegyres, dated 28 May 2014, 20 August 2014 and 24 September 2014, Mr Prichard, dated 24 September 2014 and Dr Langlands, dated 27 September 2014 are outside the Relevant Period: refer to paragraphs 10, 11 and 30 above.  

    Hyperthyroidism

33. It is not in dispute that Mr Johnson’s hypothyroidism condition was fully diagnosed, fully treated and fully stabilised as at the Relevant Period:  refer to paragraph 19 above which refers to the 28 February 2014 JCA Report.

34. Based on the medical evidence, the Tribunal considers that Mr Johnson’s ischaemic heart disease condition should be assessed on Table 1 of the Impairment Tables (Functions requiring Physical Exertion and Stamina). 

35. However, since there is no evidence of the functional impact of Mr Johnson’s hypothyroidism condition, the Tribunal finds that the condition attracts 0 points under Table 1 of the Impairment Tables.

    Total impairment rating

36. In summary, the Tribunal finds that Mr Johnson’s “impairments” (as at the Relevant Period) attracted a total of 10 points under the Impairment Tables, as follows:

    ·     hyper somnolence/narcolepsy/sleep apnoea – not fully diagnosed, fully treated and fully stabilised;

    ·     rheumatoid arthritis – 10 points under Table 1;

    ·     ischaemic heart disease  – 0 points under Table 1;

    ·     hypertension – not fully diagnosed, fully treated and fully stabilised;

    ·     kidney disorder – not fully diagnosed, fully treated and fully stabilised;

    ·     gout – not fully diagnosed, fully treated and fully stabilised;

    ·     depression – not fully diagnosed, fully treated and fully stabilised; and

    ·     hyperthyroidism – 0 points under Table 1.

    Continuing inability to work – s 94(1)(c)

37. Since the Tribunal considers that Mr Johnson’s impairments do not attract ratings of at least 20 points under the Impairment Tables as at the Relevant Period, it is unnecessary to consider whether Mr Johnson has a “continuing inability to work”, as required by s 94(1)(c) of the SSA.

38. However, for completeness, the Tribunal notes that since, based on the evidence, Mr Johnson has not actively participated in a program of support for the required amount of time, he is not unable to work 15 hours per week with the assistance of a program of support within the next two years, he is not prevented, because of his impairments, from participating in a training activity, Mr Johnson does not satisfy s 94(2)(aa), s 94(2)(a) or s 94(2)(b) of the SSA and, therefore, does not have a “continuing inability to work”, as required by s 94(1)(c) of the SSA.

    DECISION

39. For the above reasons, the Tribunal affirms the SSAT Decision.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh

..................[Sgd]...................................................

Administrative Assistant S Nguyen

Dated 20 August 2015

Date of hearing

Applicant

12 August 2015

In person

Representative for the Applicant

Mrs D Johnson

Representative for the
Respondent

Ms M De Reus

Solicitors for the Respondent

Australian Government Solicitor