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

JYHX and Secretary, Department of Social Services (Social services second review) [2018] AATA 3093 (27 August 2018)
Division:GENERAL DIVISION
File Number: 2017/2104
Re:JYHX
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:27 August 2018
Place:Brisbane

The Tribunal affirms the decision under review.

........................[Sgd]................................................
Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether medical conditions permanent – 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 (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
SECONDARY MATERIALS

Guide to Social Security Law (2018)

REASONS FOR DECISION

Member D K Grigg
27 August 2018

INTRODUCTION AND CLAIMS HISTORY

JYHX lodged a claim for Disability Support Pension (“DSP”) on 6 May 2016 describing his medical conditions as follows:[1]
[1] Exhibit 1, T Documents, T34, pages 115 – 144, JYHX’s Claim for DSP dated 6 May 2016.
.
·depression and anxiety
·chronic headaches and migraines
·slower mental processing
·hearing impairment
·vision impairment
·memory lapses - short-term and long-term
·confusion
·fatigue
·neck pain
·balance problems (cranial pressure and pressure at eyes)
After a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected JYHX’s claim for DSP on the basis that his impairments did not attract an impairment rating of 20 points.[2]
[2] Exhibit 1, T Documents, T39, page 157, Letter from Centrelink to JYHX dated 27 July 2016.
JYHX sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that JYHX’s medical conditions were either not permanent or did not attract an impairment rating of 20 points.[3]
[3] Exhibit 1, T Documents, T43, pages 169 – 175, Decision of ARO dated 15 November 2016.
JYHX then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected JYHX’s claim and affirmed the ARO’s decision on 15 March 2017.[4]
[4] Exhibit 1, T Documents, T3, pages 5 – 11, SSCSD’s Decision and Reasons for Decision dated 15 March 2017.
JYHX has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T2, pages 3 – 4, JYHX’s Application for Review dated 7 April 2017.
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)JYHX must have a physical, intellectual or psychiatric impairment;
(b)JYHX’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”).[6]
(c)JYHX must have a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
The date for determining whether JYHX meets the Section 94 Requirements is the date of the claim (in this instance as at 3 May 2016),[7] unless JYHX becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, to qualify for DSP, JYHX must have met the Section 94 Requirements between 3 May 2016 and 2 August 2016 (“Qualification Period”).
[7] Exhibit 1, T Documents, T33, page 114, Centrelink’s confirmation of JYHX’s intention to claim dated 3 May 2016.
[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 JYHX’s impairments after the Qualification Period can be considered but only if it “casts light on” the functional impact of the impairments during the Qualification Period.[9]
DID JYHX HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S 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; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
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]
JYHX’s Medical Conditions
[10] Determination, s 3.
Orbital Floor Fracture
In August 2011, JYHX was assaulted and, as a result, suffered an orbital floor fracture and fractured ribs. In September 2011, Dr Mills, General Practitioner, reported that JYHX’s orbital floor fracture was causing him pain, but was temporary and likely to show considerable improvement within two years.[11]
[11] Exhibit 1, T Documents, T6, page 63, Medical Certificate of Dr Mills received 7 September 2011.
However, as detailed below, the orbital floor fracture has resulted in JYHX experiencing ongoing:
(a)issues with his vision;
(b)hearing issues;
(c)headaches (intracranial pressure); and
(d)mental health issues.
Vision Issues
In September 2011, Dr Yardley, General Practitioner, reported that the fractured orbit was causing JYHX visual disturbance, facial nerve and sensory neural problems which were likely to persist.[12]
[12] Exhibit 1, T Documents, T8, page 65, Medical Certificate of Dr Yardley received 21 September 2011.
Between December 2011 and November 2012, Dr Trent Rowe, General Practitioner, reported that JYHX was temporarily suffering from diplopia (double vision) as a result of his orbital fracture.[13]
[13] Exhibit 1, T Documents, T9, page 66, Medical Certificate of Dr Rowe dated 2 December 2011; T10, page 67, Medical certificate of Dr Rowe dated 31 January 2012; T11, page 68, Medical certificate of Dr Rowe dated 22 May 2012; T12, page 69, Medical certificate of Dr Rowe dated 21 August 2012; T13, page 70, Medical certificate of Dr Rowe dated 19 November 2012
JYHX was referred to Dr Helen Brown, Consultant Neurologist. Dr Brown reported in January 2013 that:[14]
(a)JYHX still has some mild diplopia and conjugate gaze to the right eye but only of his background vision; and
(b)since the alleged assault, his left eye has been dry.
[14] Exhibit 1, T Documents, T14, pages 71 – 72, Report of Dr Brown dated 14 January 2013.
In February 2013, Dr Rowe reported that JYHX was still temporarily suffering from diplopia as a result of his orbital fracture.[15]
[15] Exhibit 1, T Documents, T15, page 73, Medical Certificate of Dr Rowe dated 7 February 2013.
In January 2014, Dr Rowe reported that:[16]
(a)JYHX was awaiting review at the Princess Alexandra Hospital as he was still suffering from diplopia; and
(b)this condition was likely to have an impact on JYHX’s ability to function for more than 24 months and the effect of this condition was likely to fluctuate.
[16] Exhibit 1, T Documents, T21, pages 82 – 84, Medical Report of Dr Rowe dated 17 January 2014.
In October 2015, Dr Brown conducted a further review and reported that JYHX had mild papilloedema on examination and was having a planned review with the neuro-ophthalmology clinic.[17]
[17] Exhibit 1, T Documents, T29, pages 105 – 106, Report of Dr Brown dated 6 October 2015.
In July 2016, Dr Brown conducted a further review of JYHX who was complaining of cataracts and reported that:[18]
(a)JYHX said:
(i)he has a constant daily headache over his vertex and reports whooshing in his ears but at times this worsens to a debilitating headache such that he has to stop what he is doing and gets associated photophobia;
(ii)he has issues with his vision both at dawn and at dusk and is concerned that he has early cataracts and avoids driving during dusk and dawn;
(b)JYHX has no significant papilloedema; and
(c)the neuro-ophthalmology clinic in December 2015 showed he has visual acuity of 6/6 of normal colour vision and that he did not need to proceed with any surgery for his cataracts at that point; and
(d)further review is planned over the next few months.
[18] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
In October 2016, Dr Rowe reported that:[19]
(a)JYHX was currently being treated for:
(i)diplopia – double vision when looking upwards or to the right;
(ii)left intermittent partial ptosis;
(iii)left tear duct dysfunction and dry eye symptoms; and
(b)there has been no significant improvement in his symptoms over the last several years and that these conditions would be considered permanent;
[19] Exhibit 1, T Documents, T42, pages 167 – 168, Medical Report of Dr Rowe dated 26 October 2016.
In February 2017, Dr Rowe reported that:[20]
[20] Exhibit 1, T Documents, T44, pages 176 – 177, Medical Report of Dr Rowe dated 10 February 2017.
(a)JYHX:
(i)has a left weepy eye;
(ii)has blurred vision, recurrent vision;
(iii)uses lubricating drops;
(iv)has cataracts in both eyes;
(v)requires a bright light when reading;
(vi)will need operative intervention for cataracts at some stage;
(b)no change in treatment is currently likely; and
(c)no improvement in JYHX’s condition is expected in the next two years.
In July 2017, Dr Rowe reported that JYHX:[21]
(a)uses Genteal for dry eye symptoms; and
(b)has a “history of left lacrimal duct dysfunction and surgery”.
[21] Exhibit 5, Report of Dr Rowe dated 11 July 2017.

Hearing Issues

Between December 2011 and November 2012, Dr Rowe reported that JYHX was temporarily suffering from tinnitis as a result of his orbital fracture.[22]
[22] Exhibit 1, T Documents, T9, page 66, Medical Certificate of Dr Rowe dated 2 December 2011; T10, page 67, Medical certificate of Dr Rowe dated 31 January 2012; T11, page 68, Medical certificate of Dr Rowe dated 22 May 2012; T12, page 69, Medical certificate of Dr Rowe dated 21 August 2012; T13, page 70, Medical certificate of Dr Rowe dated 19 November 2012
Dr Brown reported in January 2013 that audiology tests showed borderline normal hearing with an asymmetric high frequency loss which was mild-to-moderate in the right ear and moderate-to-moderately severe in the left ear.[23]
[23] Exhibit 1, T Documents, T14, pages 71 – 72, Report of Dr Brown dated 14 January 2013.
In February 2013, Dr Rowe reported that JYHX was still temporarily suffering from tinnitis as a result of his orbital fracture.[24]
[24] Exhibit 1, T Documents, T15, page 73, Medical Certificate of Dr Rowe dated 7 February 2013.
In January 2014, Dr Rowe reported that:[25]
(a)JYHX was awaiting review at the Princess Alexandra Hospital as he was still suffering a hearing defect post-assault; and
(b)this condition was likely to have an impact on JYHX’s ability to function for more than 24 months and the effect of this condition was likely to fluctuate.
[25] Exhibit 1, T Documents, T21, pages 82 – 84, Medical Report of Dr Rowe dated 17 January 2014.
In October 2015, Dr Brown conducted a further review of JYHX and reported that he can have episodes of temporal aching with associated whooshing noises in his ears and he was having a follow-up with Audiology over the coming weeks.[26]
[26] Exhibit 1, T Documents, T29, pages 105 – 106, Report of Dr Brown dated 6 October 2015.
In July 2016, Dr Brown conducted a further review of JYHX, who was still complaining of impaired hearing. Dr Brown reported that JYHX said he has a constant daily headache over his vertex and reports whooshing in his ears which at times worsens to a debilitating headache such that he has to stop what he is doing.[27]
[27] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
In October 2016, Dr Rowe reported that JYHX uses hearing aids for his hearing difficulty.[28]
[28] Exhibit 1, T Documents, T42, pages 167 – 168, Medical Report of Dr Rowe dated 26 October 2016.

Headaches/Head Injury

Between December 2011 and November 2012, Dr Rowe, reported that JYHX was temporarily suffering from headaches as a result of his orbital fracture.[29]
[29] Exhibit 1, T Documents, T9, page 66, Medical Certificate of Dr Rowe dated 2 December 2011; T10, page 67, Medical certificate of Dr Rowe dated 31 January 2012; T11, page 68, Medical certificate of Dr Rowe dated 22 May 2012; T12, page 69, Medical certificate of Dr Rowe dated 21 August 2012; T13, page 70, Medical certificate of Dr Rowe dated 19 November 2012.
Dr Brown reported in January 2013 that:[30]
(a)an MRI brain scan showed a bony defect along the left orbital floor consistent with his fracture and no evidence of any diffuse axonal injury, recent infarct or stigmata of previous haemorrhage;
(b)JYHX’s headaches had deteriorated over the past two weeks; and
(c)a lumbar puncture will be performed the next visit and he will then be reviewed in a clinic in four months time.
[30] Exhibit 1, T Documents, T14, pages 71 – 72, Report of Dr Brown dated 14 January 2013.
In February 2013, Dr Rowe reported that JYHX was still temporarily suffering from headaches as a result of his orbital fracture.[31]
[31] Exhibit 1, T Documents, T15, page 73, Medical Certificate of Dr Rowe dated 7 February 2013.
In January 2014, Dr Rowe reported that:[32]
(a)JYHX was awaiting review at the Princess Alexandra Hospital as he was still suffering from headaches, confusion, poor focus and memory issues post the assault;
(b)JYHX had a raised intracranial pressure post his head injury;
(c)JYHX has difficulty with cognitive tasks; and
(d)these conditions were likely to have an impact on JYHX’s ability to function for more than 24 months and the effects of these conditions were likely to fluctuate.
[32] Exhibit 1, T Documents, T21, pages 82 – 84, Medical Report of Dr Rowe dated 17 January 2014.
In February 2014, Dr Rowe reported that JYHX has ongoing fatigue and headaches as a result of his closed head injury and was under the care of the Princess Alexandra Hospital (“PAH”).[33]
[33] Exhibit 1, T Documents, T23, page 96, Medical certificate of Dr Rowe dated 11 February 2014.
In July 2015, Dr Rowe reported that JYHX was having headaches and was still awaiting review at the PAH.[34]
[34] Exhibit 1, T Documents, T24, page 97, Medical certificate of Dr Rowe dated 24 July 2015.
A CT scan of JYHX’s brain taken in August 2015 indicated:[35]
(a)no subdural or acute intracerebral pathology;
(b)previous left floor of orbit fracture with inferior defect;
(c)likely involvement of the infra-orbital nerve but the inferior rectus muscle appears above the inferior herniation; and
(d)the fracture appeared unreduced.
[35] Exhibit 1, T Documents, T25, page 98, CT report dated 11 August 2015.
In August 2015, Dr Rowe reported that JYHX still had fatigue and headaches and was awaiting review at the Princess Alexandra Hospital.[36]
[36] Exhibit 1, T Documents, T27, page 100, Medical certificate of Dr Rowe dated 24 August 2015.
In October 2015, Dr Brown conducted a further review of JYHX who was complaining of chronic daily headaches and reported that:[37]
[37] Exhibit 1, T Documents, T29, pages 105 – 106, Report of Dr Brown dated 6 October 2015.
(a)JYHX said:
(i)he feels his headaches have worsened over the past couple of months;
(ii)he got relief from his headaches initially post lumbar puncture;
(iii)when he ran out of his Acetazolamide, his headaches worsened;
(iv)his current headaches are constant with some relief from simple analgesia. However, they have been sufficiently troublesome that he had deferred studying his Masters in Sports Coaching;[38]
(v)his headaches have no clear pattern of occurrence but he sometimes wakes with a headache;
(vi)he has two types of headache – one that spreads from his occiput and spreads forward and on other occasions he will have retro-orbital headaches with associated photo and phono phobia
(b)headache precipitants include stress – financial stress, arguments with his teenage daughter and studying for prolonged periods;
(c)while some of JYHX’s headaches sounded as if they may be migrainous in nature, there are certainly some of the headaches that sound concerning for ongoing raised intracranial pressure and also the mild papilloedema on examination;
(d)she discussed with JYHX that the likely main precipitants would be that of the weight increase and also whether or not his sleep apnoea was under adequate control; and
(e)she asked JYHX to increase his medication.
[38] Exhibit 1, T Documents, T28, page 103, Employment Services Assessment Report dated 26 August 2015; T29, page 105, Report of Dr Brown dated 6 October 2015.
In January 2016, Dr Rowe reported that JYHX still had fatigue and headaches and was awaiting review at the Princess Alexandra Hospital.[39]
[39] Exhibit 1, T Documents, T32, page 113, Medical certificate of Dr Rowe dated 27 January 2016.
In July 2016, Dr Brown conducted a further review of JYHX who was still complaining of chronic daily headaches. Dr Brown reported that:[40]
[40] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
(a)JYHX said:
(i)he was currently studying full-time and about to start up his own consultancy agency;
(ii)he has a constant daily headache over his vertex and reports whooshing in his ears which at times worsens to a debilitating headache;
(b)JYHX’s intracranial hypertension was benign;
(c)he has no significant papilloedema;
(d)JYHX appears to be getting migraines superimposed on his continuous daily headache;
(e)she was going to commence him on Topirimate and up titrate over four months as requested by Dr Rowe;
(f)he needs to monitor his mood;
(g)she warned JYHX of the side effects of Topirimate including sedation, cognitive blunting, renal stones and hair thinning;
(h)she advised JYHX to stop using his Ibuprofen at night and to instead use a combination of Panadol and Ibuprofen within 15 minutes of the onset of the severe headaches as acute treatment; and
(i)she will review him in six months time and may need to organise repeat lumbar puncture to assess whether his raised intracranial pressure is under control.
In August 2016, Dr Rowe reported that JYHX has a history of chronic headaches, relating to his past head injury and that his symptoms had been diagnosed, are stable, and are unlikely to show any change in the next two years.[41]
[41] Exhibit 1, T Documents, T40, page 159, Report of Dr Rowe dated 11 August 2016.
In October 2016, Dr Rowe reported that:[42]
(a)JYHX was currently being treated for:
(i)raised intracranial pressure as a result of his sustained closed head injury;
(ii)chronic headaches;
(b)there has been no significant improvement in his symptoms over the last several years and that these conditions would be considered permanent;
(c)he is under the care of the PAH neurology unit for his headaches and raised intracranial pressure; and
(d)in the future he will need to continue with the neurosurgery department of the PAH hospital.
[42] Exhibit 1, T Documents, T42, pages 167 – 168, Medical Report of Dr Rowe dated 26 October 2016.

In February 2017, Dr Rowe reported that regarding JYHX’s intra-occular pressure/intra-cranial pressure/headaches/post head injury:[43]
(a)he is under the care of the PAH;
(b)his appointments are at the PAH’s discretion;
(c)his condition is stable;
(d)he has recurrent headaches;
(e)no change in treatment is currently likely; and
(f)no improvement in the condition is expected in the next two years.
[43] Exhibit 1, T Documents, T44, pages 176 – 177, Medical Report of Dr Rowe dated 10 February 2017.
In July 2017, Dr Rowe reported that JYHX takes Diamox to assist with pressure reduction.[44]
[44] Exhibit 5, Report of Dr Rowe dated 11 July 2017.
Sleep disorder
Dr Brown reported in January 2013 that, since the alleged assault, JYHX remains constantly fatigued and still has ongoing initial insomnia.[45]
[45] Exhibit 1, T Documents, T14, pages 71 – 72, Report of Dr Brown dated 14 January 2013.
In February 2013, JYHX was reviewed in a sleep disorder clinic by Dr Michael Trotter, Registrar. Dr Trotter reported that:[46]
(a)he suspected some of JYHX symptoms may relate to his assault; and
(b)given that he snores through the continuous positive airway pressure device (“CPAP”), he should be reassessed to ensure residual obstructive sleep apnoea (“OSA”) through treatment was not contributing; and
(c)he had therefore booked a repeat CPAP rotation.
[46] Exhibit 1, T Documents, T16, page 74, Report of Dr Trotter dated 13 February 2013.
In January 2014, Dr Rowe reported that JYHX had sleep apnoea.[47]
[47] Exhibit 1, T Documents, T21, page 81, Medical Report of Dr Rowe dated 17 January 2014.
In October 2015, Dr Brown conducted a further review of JYHX and reported that:[48]
(a)JYHX said:
(i)he did not have a sleep study as planned and he has significant daytime somnolence at present;
(ii)he sleeps 12 hours per night and reports that he can fall asleep very quickly in front of the television; and
(b)she referred JYHX to the sleep clinic.
[48] Exhibit 1, T Documents, T29, pages 105 – 106, Report of Dr Brown dated 6 October 2015.
In July 2016, Dr Brown conducted a further review of JYHX who was complaining of OSA. Dr Brown reported that JYHX said he has been given a new sleep apnoea machine and he finds that he cannot sleep for more than six hours per night but that, at present, he feels he is getting refreshing sleep.[49]
[49] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
In February 2017, Dr Rowe reported in relation to JYHX’s sleep apnoea that JYHX uses a CPAP machine and is currently stable and no further treatment is required other than ongoing use of the CPAP machine which requires regular monitoring by a CPAP technician.[50]
[50] Exhibit 1, T Documents, T44, pages 176 – 177, Medical Report of Dr Rowe dated 10 February 2017.
Mental health
Dr Brown reported in January 2013 that:[51]
(a)JYHX did reasonably well in the neuropsychology review with his main area of deficit being his immediate attention span which explains his current symptoms. “The attention deficit could be explained by ongoing recovery post assault and/or mood concerns” and it was recommended that JYHX would benefit from review with a clinical psychologist to try to assist with this;
(b)JYHX is having ongoing issues at home following the death of his wife. His 18-year-old son is moving to Melbourne and they are not speaking and his 15-year-old daughter, who has borderline Aspergers, is now living with family friends in Brisbane to continue her schooling and did not come home for Christmas. His 12-year-old daughter lives with him and they have a good relationship;
(c)he should be referred for psychology with regard to his memory issues; and
(d)she discussed with JYHX whether some of his current symptoms, in particular his fatigue, may be related to a reactive depression and suggested that a trial of an antidepressant may be of benefit.
[51] Exhibit 1, T Documents, T14, pages 71 – 72, Report of Dr Brown dated 14 January 2013.
In 2013, JYHX was referred to Dr Richard Goddard, Psychologist. Dr Goddard reported in May 2013 that:[52]
(a)he had conducted six consultations with JYHX since January 2013;
(b)JYHX was responding very well to cognitive behavioural therapy and supportive psychotherapy aimed at his grief and low self-worth;
(c)JYHX reported significant improvements in anxiety, depression and self-worth and was looking forward to commencing work overseas as a manager of an indoor ski complex; and
(d)he had referred JYHX for a comprehensive cognitive and psychosocial assessment at the University of Southern Queensland Psychology Assessment Clinic (that assessment is yet to take place and, given that JYHX is leaving Australia, is now unlikely to be undertaken).
[52] Exhibit 1, T Documents, T17, page 75, Report of Dr Goddard dated 8 May 2013.
Between October 2013 and January 2014, Dr Rowe reported that JYHX had depression.[53]
[53] Exhibit 1, T Documents, T18, page 76, Medical Certificate of Dr Rowe dated 24 October 2013; T19, page 77, Medical certificate of Dr Rowe dated 11 November 2013; T20, page 78, Medical certificate Dr Rowe dated 6 January 2014;
In January 2014, Dr Rowe reported that:[54]
(a)JYHX was taking antidepressants and the planned future treatment was to continue having psychological therapy;
(b)JYHX had a depressed mood which was affecting his relationships and his ability to perform cognitive tasks; and
(c)this condition was likely to have an impact on JYHX’s ability to function for more than 24 months and the effect of this condition was likely to fluctuate.
[54] Exhibit 1, T Documents, T21, pages 85 – 87, Medical Report of Dr Rowe dated 17 January 2014.
In February 2014, Dr Rowe reported that JYHX still had depression for which he was taking medication.[55]
[55] Exhibit 1, T Documents, T23, page 96, Medical certificate of Dr Rowe dated 11 February 2014.
In August 2015, Dr Rowe reported that JYHX still had depression.[56]
[56] Exhibit 1, T Documents, T27, page 100, Medical certificate of Dr Rowe dated 24 August 2015.
In August 2015, JYHX was again referred to Dr Goddard who reported in November 2015 that:[57]
(a)he had conducted six consultations with JYHX since August 2015;
(b)JYHX’s depression had improved;
(c)he had reintroduced cognitive behavioural therapy and behavioural activation strategies and there seemed to be good progress; and
(d)he recommended continuing therapy over the coming months as JYHX’s court case reaches finalisation and he adjusts to being off his antidepressant medication.
[57] Exhibit 1, T Documents, T30, page 107, Report of Dr Goddard dated 6 November 2015.
In October 2015, Dr Brown conducted a further review of JYHX who was complaining of depression. Dr Brown reported that JYHX said his depression has worsened and he is seeing a psychologist again and is having vivid dreams regarding his wife’s death.[58]
[58] Exhibit 1, T Documents, T29, pages 105 – 106, Report of Dr Brown dated 6 October 2015.
In January 2016, Dr Rowe reported that JYHX still had depression.[59]
[59] Exhibit 1, T Documents, T32, page 113, Medical certificate of Dr Rowe dated 27 January 2016.
In July 2016, Dr Brown conducted a further review of JYHX. Dr Brown reported that JYHX said he feels sharper and better and is doing better with his course admission since he has ceased taking his antidepressant and he continues to see a psychologist to work through his grief issues.[60]
[60] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
In October 2016, Dr Rowe reported that:[61]
(a)JYHX was currently being treated for depression/anxiety; and
(b)there has been no significant improvement in his symptoms over the last several years and that these conditions would be considered permanent;
(c)he continues to have psychologist intervention for his depression and anxiety and is also treated with antidepressant medication; and
(d)in the future he will need to continue his psychological intervention.
[61] Exhibit 1, T Documents, T42, pages 167 – 168, Medical Report of Dr Rowe dated 26 October 2016.
In February 2017, Dr Rowe reported that in relation to JYHX’s depression/anxiety:[62]
[62] Exhibit 1, T Documents, T44, pages 176 – 177, Medical Report of Dr Rowe dated 10 February 2017.
(a)JYHX is not currently taking medication as this was causing cognitive concerns;
(b)JYHX was diagnosed in 1997 and his condition was exacerbated by the loss of his wife in 2010 and an assault in 2011;
(c)JYHX has had counselling, psychology and medications;
(d)JYHX is clinically stable;
(e)JYHX has decreased mood, decreased motivation and hypersomnia at stages;
(f)JYHX has access to psychology as required;
(g)it has impacts on his relationships and how relates to others and he has anger issues at times;
(h)JYHX is not likely to show any improvement over the next two years;
(i)it is impacting on his concentration, study and memory at times; and
(j)no additional treatment is currently required.
In July 2017, Dr Sarah Young, Clinical Psychologist, reported that she had commenced treating JYHX in July 2017 for his symptoms of depression and anxiety, which occur within the context of trauma. Dr Young reported that JYHX meets criteria for “other specified trauma-and-stressor-related disorder: persistent complex bereavement disorder; in addition to major depressive disorder, recurrent episode, severe, with anxious distress”.[63]
[63] Exhibit 7, Report of Dr Young dated 24 July 2017.
Cervical Spine Condition
A CT scan of JYHX’s cervical spine demonstrated:[64]
Moderately severe cervical spondylosis on the right see 4/5 involving the exiting right C5 nerve root and bilaterally C5/6 and C6/7 involving the exiting C6 and C7 nerve route.
[64] Exhibit 1, T Documents, T26, page 99, CT Report dated 14 August 2015.
In July 2016, Dr Brown conducted a further review of JYHX and reported that:[65]
(a)JYHX said he has been seeing a physiotherapist with regard to his neck pain but it was making it worse so he stopped; and
(b)she is arranging an MRI scan of his cervical spine; and
(c)she advised using heat packs, massage and neck stretching exercises as it may be that he has a secondary occipital aching component because of his migraines.
[65] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
Rib Fracture
In September 2011, Dr Mills, General Practitioner, reported that JYHX:[66]
(a)had a rib fracture which was temporary and was causing him pain; and
(b)was unable to perform high impact activities but could drive once the pain was tolerated; and
(c)was likely to show considerable improvement within two years.
[66] Exhibit 1, T Documents, T6, page 63, Medical Certificate of Dr Mills received 7 September 2011.
In September 2011, Dr Yardley, General Practitioner, reported that JYHX’s fractured ribs had stabilised.[67]
[67] Exhibit 1, T Documents, T8, page 65, Medical Certificate of Dr Yardley received 21 September 2011.
Other
In January 2014, Dr Rowe reported that JYHX had:[68]
(a)ischaemic heart disease;
(b)hypertension; and
(c)diverticulitis.
[68] Exhibit 1, T Documents, T21, page 81, Medical Report of Dr Rowe dated 17 January 2014.
Conclusion on Impairment
The Secretary accepts that JYHX suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[69]
[69] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 31 August 2017, para 5.1.
Considering the medical evidence, the Tribunal finds that, at the Qualification Date, JYHX suffered from a Vision Impairment, Hearing Impairment, Headache Impairment, Sleep Apnoea Impairment, Mental Health Impairment, and a Cervical Spine Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to the rib fracture, ischaemic heart disease, hypertension and diverticulitis conditions, the evidence indicates that these conditions are having either a minimal or limited impact on JYHX’s ability to function. There is also a paucity of evidence before the Tribunal such that they are unable to be assessed. Therefore, those conditions cannot be considered for the purpose of this DSP application.
DO JYHX’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
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.[70] They are function based[71] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[72]
[70] Determination, ss 4(2) and 5(2)(a).
[71] Determination, ss 5(2)(b) and (c).
[72] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[73]
(a)JYHX’s 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.
[73] Determination, see s 6(3).
JYHX’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[74]
(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.
[74] 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,[75] the following must be considered:[76]
(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.
[75] For the purposes of ss 6(4)(a) and (b) of the Determination.
[76] Determination, see s 6(5).
A condition is fully stabilised[77] if:[78]
(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:
(iii)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[79]; or
(iv)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[77] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[78] Determination, see s 6(6).
[79] 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 can then 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.
Before applying the Tables, JYHX’s medical history, in relation to the condition causing the Impairments, must be considered.[80]
[80] Determination, see s 6(2).
Is JYHX’s VISION IMPAIRMENT permanent?
Table 12 of the Determination, which concerns visual function, specifically provides that there must be a diagnosis by an appropriately qualified medical practitioner “with supporting evidence from an ophthalmologist”. The Tribunal gave JYHX leave after the hearing to produce supporting evidence from an ophthalmologist, however he has failed to do so. After the hearing, JYHX informed the Tribunal that while he is now consulting with an ophthalmologist, they were not treating him during the Qualification Period.
Therefore, the Tribunal finds that JYHX’s Vision Impairment was not fully diagnosed as required by the Act and no Impairment Rating can be assigned for this condition.
Once evidence from an ophthalmologist has been obtained, it is open to JYHX to make a new DSP application.
Is JYHX’s HEARING IMPAIRMENT permanent?
Table 11 of the Determination, which concerns hearing function, specifically provides that “diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat (ENT) specialist”. The Tribunal gave JYHX leave after the hearing to produce supporting evidence from an audiologist, however he has failed to do so.
Therefore, the Tribunal finds that JYHX’s Hearing Impairment was not fully diagnosed as required by the Act and no Impairment Rating can be assigned for this condition.
JYHX confirmed at the hearing that his hearing condition was not the reason he had applied for the DSP.
Is JYHX’s HEADACHE/HEAD INJURY IMPAIRMENT permanent?
The Tribunal finds that JYHX’s Headache Impairment was permanent. This is accepted by the Secretary.[81] An Impairment Rating can now be assigned.
[81] Exhibit 2, Secretary's Statement of Facts Issues and Contentions, para 6.3.
Using the Impairment Tables
The Tribunal has to assess the level of impact of JYHX’s Impairments against the descriptors[82] (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).[83]
[82] Determination, see ss 3 and 5(3).
[83] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an 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.[84]
[84] Determination, see s 6(1).
Pursuant to the Determination, the following information:
(a)must be taken into account in applying the Tables:[85]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account in applying the Tables:[86]
(i)symptoms reported by JYHX in relation to his condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in JYHX’s local community.
[85] Determination, see s 7.
[86] Determination, see s 8.
Which Tables are appropriate are determined by:[87]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[87] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[88]
[88] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[89]
[89] 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.[90]
[90] 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.[91]
[91] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date & Impairment Rating
Table 7 of the Determination which concerns brain function is the relevant Table. The introduction to Table 7 provides:
·     Table 7 is to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.
·     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 purposes of this Table include, but are not limited to, the following:
o    a report from the person’s treating doctor;
o    a report from a specialist health practitioner (e.g. neurologist, rehabilitation physician, psychiatrist or neuropsychologist) supporting the diagnosis of conditions associated with neurological or cognitive impairment (e.g. acquired brain injury, stroke (cerebrovascular accident (CVA)), conditions resulting in dementia, tumour in the brain, some neurodegenerative disorders, chronic pain);
o    results of diagnostic tests (e.g. Magnetic Resonance Imagery (MRI), Computerised (Axial) Tomography (CT) scans, Electroencephalograph (EEG));
o    results of cognitive function assessments.
·     The signs and symptoms of neurological or cognitive impairment may vary over time. The person’s presentation on the day of the assessment should not solely be relied upon.
·     For neurological or cognitive conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
·     A person with Autism Spectrum Disorder who does not have a low IQ should be assessed under this Table.
·     Table 7 should not be used when a person has an impairment of intellectual function already assessed under Table 9, unless the person has an additional condition affecting neurological or cognitive function
To obtain a 5-point rating under Table 7:
(1)The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a)memory;
Example: The person occasionally forgets to complete a regular task or sometimes misplaces important items.
(b)attention and concentration;
Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.
Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.
(c)problem solving;
Example1: The person has difficulty solving complex problems that may involve multiple factors or abstract concepts.
Example 2: The person shows a lack of awareness of problems in some situations.
(d)planning;
Example: The person has some difficulty planning and organising complex activities (such as arranging travel and accommodation for an interstate or overseas holiday).
(e)decision making;
Example: The person has some difficulty in prioritising and complex decision making when there are several options to choose from.
(f)comprehension.
Example: The person has some difficulty in understanding complex instructions involving multiple steps.
To obtain a 10-point rating under Table 7:
1)The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a)memory;
Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.
Example 2: The person often misplaces items.
Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.
(b)attention and concentration;
Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.
Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.
(c)problem solving;
Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.
(d)planning;
Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).
(e)decision making;
Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.
(f)comprehension;
Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.
(g)visuo-spatial function;
Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.
(h)behavioural regulation;
Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).
(j)self awareness.
Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.
JYHX told the SSCSD Member that he:[92]
(a)had chronic headaches;
(b)would wake tired and foggy, “with a headache like a hangover”; and
(c)felt dizzy and unbalanced and could not exercise.
[92] Exhibit 1, T Documents, T3, pages 5 – 11, SSCSD’s Decision and Reasons for Decision dated 15 March 2017, para [22].
During the Qualification Period, JYHX was studying a Masters degree full-time.
As the Secretary points out, there is no medical evidence that JYHX requires assistance from another person with cognitive tasks.
The Tribunal finds that the fact that JYHX was engaged in full-time postgraduate study is indicative of someone who, at best, would have a mild impairment. Studying requires cognitive ability, decision making, comprehension and an ability to concentrate. JYHX tried to downplay his ability to undertake his degree by saying it was easy for him, that it was not a significant degree to undertake and that he was able to do it because he was granted extensions to complete assignments. In written submissions provided after the hearing, JYHX says he was able to complete the degree due to “the help and understanding of the faculty and its lecturer to matters pertaining to deadlines, extensions and time management in general”.[93] He also says he had to take a semester off due to ill health. However, the semester he deferred was in 2015. In semester 1 of 2016, JYHX commenced studying again. By May 2016, he was studying 30-40 hours per week.
[93] Applicant’s Response to Written Submissions dated 3 August 2018.
In July 2016, Dr Brown reported that not only was JYHX studying full-time, he was also about to start his own consultancy business.[94] JYHX says his consultancy business never went anywhere. That may be true but the fact that he had plans to start his own business points to how well he thought he was at that time and his functional capability during the Qualification Period.
[94] Exhibit 1, T Documents, T37, pages 149 – 150, Report of Dr Brown dated 22 July 2016.
It is implausible that someone with the capability of studying full-time would be considered to have a moderate impairment rating under Table 7 in relation to brain function. The evidence does not support a moderate impairment rating.
In the circumstances, the Tribunal assigns a 5-point impairment rating to JYHX’s Head Impairment under Table 7.
JYHX also contended that Table 1 should apply. Table 1 is concerned with functional impairment when performing activities requiring physical exertion or stamina. There is no corroborating evidence that he would meet the descriptors in Table 1. The Tribunal again notes that his fatigue did not hinder his ability to complete a full-time degree.
Is JYHX’s SLEEP APNOEA IMPAIRMENT permanent?
The Tribunal accepts that JYHX’s sleep apnoea is permanent but finds that it attracts a zero impairment rating because, during the Qualification Period, JYHX reported he was having refreshing sleep using his sleep apnoea machine. The condition was therefore not impacting on JYHX’s ability to function.
Is JYHX’s MENTAL HEALTH IMPAIRMENT permanent?
The Secretary submits that JYHX’s Mental Health Impairment was not fully diagnosed during the Qualification Period because there was no diagnosis by a clinical psychologist or psychiatrist during that time as is required by Table 5 of the Determination.
The Tribunal agrees with the Secretary’s submission. While Dr Young, a clinical psychologist, provided a report in July 2017, she was not able to report on JYHX’s condition as it was during the Qualification Period. Although Dr Goddard had been treating JYHX for depression, he is not a clinical psychologist.
There is no question, as far as this Tribunal is concerned, that a clinical psychologist is a psychologist who has had specialist training. A clinical psychologist is not merely a psychologist that has a clinical practice as was found in May and Secretary, Department of Social Services [2016] AATA 1061. The Secretary provided comprehensive submissions setting out the requirements a psychologist must meet to be a “clinical psychologist”. I do not propose to set out all those requirements other than to note that additional postgraduate specialist training and continuing professional development is required. The term “clinical psychologist” has a defined meaning within the psychology profession and the profession’s accrediting body. It is not merely a description of a psychologist that operates in a clinic. If that were the meaning in Table 5, all that would have been required would have been the word “psychologist”.
The Secretary also referred the Tribunal to the Guide to Social Security Law which is used by Centrelink as a guide to the interpretation application of the Act. The Tribunal is not bound to apply the Guide but it may, and it should, apply it in exercising its discretion unless it is unlawful or “tends to produce an unjust decision”.[95]
[95] Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634, at 645.
The Guide sets out (at 3.6.3.50) that:
A clinical psychologist is taken to be a psychologist registered with the Australian Health Practitioner Regulation Authority with an area of practice endorsed as clinical psychology by the Psychology Board of Australia
JYHX provided written submissions after the hearing and indicated that Dr Young had informed him that Dr Goddard is currently registered as a Clinical Psychologist, although he does not know when he attained this speciality and he believes Dr Goddard is no longer in private practice. There is no evidence before the Tribunal that Dr Goddard was a clinical psychologist at the time he treated JYHX.
The Tribunal finds that JYHX’s mental health conditions were not fully diagnosed as required by the Act during the Qualification Period and therefore no impairment rating can be assigned.
In the event that the mental health conditions diagnosed by Dr Young have now been fully treated and stabilised, it is open to JYHX to make a new DSP claim.
Is JYHX’s CERVICAL SPINE IMPAIRMENT permanent?
The Tribunal finds that this condition was not permanent during the Qualification Period because JYHX was still receiving physiotherapy treatment and further investigations were planned. The Tribunal notes there is also limited evidence regarding how this condition was impacting on JYHX’s ability to function.
Therefore, no impairment rating can be assigned in relation to JYHX’s cervical spine impairment.

WERE JYHX’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: s 94(1)(b)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
The total Impairment Rating for JYHX’s permanent Impairments was 5 points. Therefore, JYHX did not satisfy section 94(1)(b) of the Act at the Qualification Date.
DID JYHX HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
The Tribunal has concluded that JYHX’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables at the Qualification Date.Therefore, it is not necessary to consider whether JYHX had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
JYHX’s claim fails. His permanent Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables during the Qualification Period and as a result he did not qualify for DSP.
The decision under review is affirmed.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 27 August 2018

Date of hearing:

4 April 2018

Date last submissions received:

3 August 2018

Applicant:

By Phone

Advocate for the Respondent:

Solicitors for the Respondent:

Ms Clare Campbell

Sparke Helmore Lawyers

[2018] AATA 3093

27 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date of hearing:	4 April 2018
Date last submissions received:	3 August 2018
Applicant:	By Phone
Advocate for the Respondent: Solicitors for the Respondent:	Ms Clare Campbell Sparke Helmore Lawyers