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

[2020] AATA 439

Kalayzich and Secretary, Department of Social Services (Social services second review) [2020] AATA 439 (11 March 2020)

Division:GENERAL DIVISION

File Number:2019/5824            

Re:Angelo Kalayzich  

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:11 March 2020

Place:Brisbane

The decision under review is affirmed.

.............[SGD].................

Member D Mitchell

CATCHWORDS

SOCIAL SECURITY – Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALDA 133

Gallacher v Secretary, Department of Social Services  [2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

11 March 2020

INTRODUCTION

1. On 21 April 2017, Mr Angelo Kalayzich (the Applicant) lodged a claim for the Disability Support Pension (DSP)(April Claim).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “chronic sacroiliitis, chronic right peri-pelvic pain, chronic left shoulder pain, chronic left ankle and leg pain”.[2]

   [1]  Exhibit 1, T Documents, T31, pages 196-228, Claim for Disability Support Pension.

   [2]  Exhibit 1, T Documents, T31, page 224, Claim for Disability Support Pension.

2. The claim was rejected on 23 June 2017, on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.[3] On 21 May 2018, the Applicant sought review of this decision.[4]

   [3]  Exhibit 1, T Documents, T36, pages 253-254, Centrelink Notice: Rejection of your claim for Disability    Support Pension.

   [4]  Exhibit 1, T Documents, T50, page 371, Customer contact file note.

3. On 18 July 2017, the Applicant made a further claim for DSP (July Claim).[5]

   [5]  Exhibit 1, T Documents, T38, pages 257-287, Claim for Disability Support Pension.

4. The 23 June 2017 decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 31 May 2019.[6]

   [6]  Exhibit 1, T Documents, T47, pages 313-317, Decision and Notes of Authorised Review Officer.

5. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision to reject the Applicant’s claim for DSP on 22 August 2019.[7]

   [7]  Exhibit 1, T Documents, T2, pages 5-9, Decision of the Social Services and Child Support Division.

6. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal by way of an application received on 16 September 2019.[8]

   [8]  Exhibit 1, T Documents, T1, pages 1-4, Application for Review of Decision.

   THE HEARING

7. A Hearing was held on 20 February 2020. At the Hearing, the Applicant was self-represented and appeared by telephone.  The Respondent was represented by Ms Lisa Palmer.

8. The evidence before the Tribunal included:

   Exhibit 1 – Section 37 T-Documents (pages 1-375) filed by the Respondent on 14 October 2019

   Exhibit 2 – Respondent’s Statement of Facts, Issues and Contentions dated and filed by the Respondent on 9 December 2019

   Exhibit 3 – Medical report authored by Dr Robert Novic dated 17 February 2020 and filed by the Applicant on 19 February 2020.

9. At the outset of the Hearing the Applicant raised concerns in relation to why the Tribunal was reviewing his April Claim for DSP rather than his July Claim. The Applicant told the Tribunal that the Respondent had asked him whether he wanted to appeal the decision in relation to his April Claim or make a new claim. He said he made a new claim and thought that was the end of his April Claim.

10. The Tribunal explained that its jurisdiction was limited to reviewing the decision of the SSCSD dated 22 August 2019 and that decision related to his April Claim following the internal review decision of 31 May 2019.

11. The Applicant made reference to a previous matter that he said was heard in the Harry Gibbs building, where he said a Commissioner had told him that if he was able to contact Dr Vecchio that he would grant him the DSP. The Applicant said that the Commissioner was unable to contact Dr Vecchio and his claim for DSP was refused and since then he has had to continue to reapply.[9]

    [9]   Transcript, page 4.

12. The Applicant told the Tribunal that he had no faith in the Tribunal and that he wanted to have an opportunity to attend in person at the Harry Gibbs building and talk to a Commissioner.[10] The Tribunal confirmed that if he was unhappy with the Tribunal’s decision in this matter he could seek further review by the Federal Court.

    [10]  Transcript, pages 10-11.

13. The Tribunal asked the Applicant whether there was any evidence he would like to give in relation to his current Tribunal application, he said:[11]

    Well, I’d like to simply say that I would like to apply for the disability pension, okay.  I cannot work. I haven’t worked for nearly 12 years it will be this April, okay. So whilst my friends are sitting on $300,000 - $400,000 in their superannuation account, I don’t even have 40 yet, okay. That’s my life.

    …..

    Look, at the end of the day, when I walk into the Harry Gibbs building, I just have to basically repeat everything again anyway, so why do that twice when I can just turn up at the Harry Gibbs building and explain it once to a commissioner?

    [11]  Transcript, pages 11-12.

14. The Tribunal then gave the Respondent the opportunity to put forward their case.  The Respondent relied upon the filed Statement of Facts, Issues and Contentions (including attachments) dated 9 December 2019.   

15. The Respondent did not object to the report of Dr Robert Novic, the Applicant’s general practitioner, dated 17 February 2020[12] being filed. The Respondent contended however that little to no weight should be afforded to the report in circumstances where:[13]

    ·the report was provided some 34 months after the Applicant lodged the claim under review and Dr Novic does not refer to the Applicant’s conditions or functional capacity during the 2017 Relevant Period;

    ·the opinion is inconsistent with contemporaneous evidence; and

    ·the report was filed the day before the final Hearing in the matter, despite the Applicant being required by direction to provide any further medial reports on or before 21 November 2019 and file any response to the Respondent’s Statement of Facts, Issues and Contentions on or before 9 January 2020, and where on both occasions being advised that the Applicant did not intend to file anything further. The Respondent therefore did not have the opportunity to seek that the Applicant have Dr Novic available at Hearing for cross-examination.

    [12]  Exhibit 3, Medical report by Dr Robert Novic.

    [13]  Transcript, page 14.

16. The Tribunal gave the Applicant a further opportunity in the Hearing to provide any further evidence in support of his application.  The Applicant responded by telling the Tribunal “No, there isn’t”[14].

    [14]  Transcript, page 15.

17. The Tribunal notes that as a result of the Applicant’s submissions it has proceeded to consider the application based solely on the material entered into evidence.

    JURISDICTION

18. This is an application to review a decision of the SSCSD which affirmed a decision to reject the Applicant’s claim for DSP.

19. Section 179(1) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), provides that:

    Application may be made to the AAT for review (AAT second review) of a decision   of the AAT on AAT first review made under subsection 43(1) of the AAT Act.

20. The Applicant’s April Claim has been reviewed in accordance with section 135 of the Administration Act by an ARO, and subsequently reviewed by the SSCSD in accordance with section 179(1) of the Administration Act. The decision of the SSCSD under review dealt only with the April Claim. The Tribunal’s jurisdiction is therefore limited to considering the Applicant’s claim for DSP dated 21 April 2017.

    THE LAW

21. The relevant law in assessing a person’s qualification for DSP is found in the
    Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The following is a summary of the key requirements which relate to the Applicant.

22. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

    1.Does the applicant have a physical, intellectual or psychiatric impairment;[15]

    2.Do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[16] and

    3.Does the Applicant have a continuing inability to work?[17]

    [15]  Section 94(1)(a) of the Act.

    [16]  Section 94(1)(b) of the Act.

    [17]  Section 94(1)(c) of the Act.

23. The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out the purpose and general design principles of the Impairment Tables insofar that the Tables:

    (a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and

    (b)are function based rather than diagnosis based; and

    (c)describe functional activities, abilities, symptoms and limitations; and

    (d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.

24. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[18] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[19] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[20]

    [18]  Section 6(1) of the Determination.

    [19]  Section 6(2) of the Determination.

    [20]  Section 8(1) of the Determination.

25. Further, an impairment rating can only be assigned to an impairment: if the person’s condition causing the impairment is “permanent”; and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[21]

    [21]  Section 6(3) of the Determination.

26. In order for a person’s condition to be considered permanent the condition must:[22]

    (a)have been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)have been fully treated; and

    (c)have been fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than 2 years.

    [22]    Section 6(4) of the Determination.

27. To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered: whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[23]

    [23]    Section 6(5) of the Determination.

28. A condition is considered to be fully stabilised if:[24]

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.

    [24]    Section 6(6) of the Determination.

29. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[25]

    [25]    Section 6(7) of the Determination.

30. In selecting the applicable Impairment Table, the Determination considers it necessary to: identify the loss of function; refer to the Table related to the function affected; and then identify the correct impairment rating.[26]

    [26]    Section 10 of the Determination.

31. In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table. Where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[27] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[28]

    [27]    Sections 10(3) and (4) of the Determination.

    [28]    Sections 10(5) and (6) of the Determination.

32. An impairment rating: can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 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.[29]

    [29]    Section 11(1) of the Determination.

33. In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support; and

    (b)be unable to work for at least 15 hours per week independently of a program of support within the next 2 years; and

    (c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

34. A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[30]

    [30]    Section 94(3B) of the Act.

35. The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[31]

    [31] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.

36. Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[32]

    [32]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123 at [25]-[28].

    RELEVANT PERIOD

37. The Relevant Period in this matter commenced on 21 April 2017, being the date the Applicant lodged his claim for DSP, and ended 13 weeks later on 21 July 2017.  The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.

    ISSUES

38. Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[33] The Respondent considers the Applicant’s impairments include back,[34] shoulder,[35] foot[36] and mental health[37] conditions.

    [33]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 36.

    [34]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-8, paragraphs 41-47.

    [35]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 8-9, paragraphs 48-52.

    [36]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 53-56.

    [37]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraphs 57-59.

39. The remaining issues for the Tribunal to consider are:

    1.Whether, within the Relevant Period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and

    2.If so, did the Applicant have a continuing inability to work?

    CONSIDERATION

    Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    Lower Back Condition

40. A number of scans, medical certificates and reports have been provided to the Tribunal in relation to the Applicant’s lower back condition. Dr Phillip Vecchio, Director of Rheumatology at the Princess Alexandra Hospital provided a report dated 11 January 2017 which provided the following:[38]

    Diagnostically, my opinion is:

    1.    Moderate lower lumbar degenerative disc disease

    2.    No evidence of spondyloarthritis

    3.    Chronic right per-pelvic pain due to pelvic instability, and muscular dysfunction of the right hind-quarter.

    4.    Definitely not suited to work as a motor mechanic or in any field which requires heavy lifting or loading/flexion of his lumbar spine.

    [38]  Exhibit 1, T Documents, T32, page 231, Report of Dr Phillip Vecchio.

41. In a further report dated 5 July 2017, Dr Vecchio provided:[39]

    You know that we have been grappling with [the Applicant’s] chronic lower lumbar and perlpelvic pain, due to various aetiologies, but not inflammatory.

    The functional disturbances include difficulty with working within confined spaces, difficulty with static sitting and standing and definitely difficulty with heavy manual work which requires twisting and bending or sustaining a load.

    The problem has been apparent for years now and it is unlikely that his functional status will improve further. Treatment is symptomatic and avoidance of aggravation. Therefore, he would be unable to work in a trade or manual capacity.

    [39]  Exhibit 1, T Documents, T40, page 292, Report of Dr Phillip Vecchio.

42. It is accepted that the Applicant has in the past had steroid injections, undertaken physiotherapy and hydrotherapy, engaged with specialists and continues to use pain medication and a TENS machine when required.[40]

    [40]  Past treatment has been consistently reported by both the Applicant and his medical practitioners.

1. Based on the evidence before the Tribunal I am satisfied that the Applicant’s lower back condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned an impairment rating under the Impairment Tables.  This finding is not in contention.[41]

   [41]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 7, paragraph 41.

2. Table 4 of the Impairment Tables deals with spinal function and is 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, truck or neck.  The descriptors in relation to a moderate or severe functional impact are as follows:[42]

   [42]  Impairment Table 4 – Spinal Function, Part 3 of the Determination. 

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their 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.

1. The Respondent contends that the Applicant’s lower back condition at most can be assigned 10 points under Table 4 of the Impairment Tables, relying on the Job Capacity Assessment (JCA) Report dated 19 June 2017.[43] The Assessors recommendation and associated reasoning was outlined in the JCA Report as follows:[44]

   Functional Impact:

   There is a moderate functional impact on activities involving spinal function.

   (1)   The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

   (c) the person is unable to bend forward to pick up a light object placed at knee height.

   [43]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 7-8, paragraphs 41-44.

   [44]  Exhibit 1, T Documents, T34, pages 244-245, JCA Report.

   Discussion with GP on 13/06/2017: Tolerances vary. The client is not able to stand in one spot for more than a few minutes. He needs to move around, e.g. will sometimes walk in circles when attending GP appointments. Sitting capacity varies, some days he is able to sit in the waiting room and appointment, some days he needs to alternate between standing and sitting (every 5-10 minutes), walking: varies from a few meters to a couple of hundred metres (gentle walking). He is not able to perform heavy lifting - about 2kg (also due to a shoulder condition). Client is not able to pick something up from the floor, he is not sure whether he is able to pick something from chair height – if able it will be with significant difficulty. The client is able to perform household tasks, however he will take much longer to perform tasks. He does not think the client will go shopping for 3-4 hours, he will probably be just in and out of a shop. Functioning is better on warmer days.

   Client reported the following symptoms and impact:

   He sometimes need to "crack" his back about 10 times/day to ease the pain, sometimes only once. He reported poor sleeping due to back.

   Pain fluctuates, he has good and bad days.

   On bad days he does not do anything that may aggravate pain. He stated that his 21 year old child recently moved in with him (son suffers ill health) - the son does the lawn mowing, hanging of washing (also due to shoulder condition) and heavy lifting.

   Client lives in his parents' home, a high-set home on a sloping property, 3 steps at the back, 10-15 steps at the front.

   He sometimes uses only the back door if his back is too painful to climb the stairs at the front.

   He has a driver's licence and the use of a car, he only drives short distances. He reported some difficulty getting in and out of car - some days it is okay.

   He is independent with activities of daily living and managing household tasks, does shopping (once to twice a fortnight - leans on trolley), pacing himself when performing household tasks including cooking, doing dishes, sweeping the porch. He used to do very light gardening (not anymore).

   Some days he has difficulty leaning/bending forward e g. washing and drying his feet.

   Tolerances: standing: depending on the day - standing in one spot aggravates the condition (he could not advise about a specific time, however said he sometimes stands for 10 minutes under a hot shower), sitting for 30 -60 minutes, sometimes he can only sit for 5 minutes then he needs to stand or move around. Stated that he is able to walk a couple of 100 metres (in previous JCA {2016} the client stated 500 metres to 1 kilometre). He noted that the current colder weather aggravates pain.

   It depends on the day whether he will be able to pick something up from the floor (he generally squat down to pick something from the floor), he stated that he is able to pick up a light object from a chair with some difficulty.

   Some days he has difficulty getting out of bed, sometimes lying down is difficult, he generally sits and leans backward to put on trousers and socks.

   Assessor observation: during the interview the client stood up after 25 minutes, stood for about a minute and sat again. He stood up again after 40 minutes for about a minute. He was observed to stand up from a sitting position without difficulty. He does not use a walking stick to mobilise. It is noted that the client stood without difficulty for the entire duration of a previous face-to-face assessment (06/07/2016) which lasted 50 minutes.

   Supporting Reasons:

   The client does not meet criteria for 20 points as he is able to bend forward to pick up a light object from a desk or table and observed to remain seated for longer than 10 minutes during the assessment. He does not have any difficulties performing overhead activities or turning his head.

2. The Tribunal notes that the Respondent submitted that the Applicant’s lower back condition, in particular the associated pain, should not be assigned an impairment rating under Table 1 of the Impairment Tables pursuant to section 10(4) of the Determination.[45]

   [45]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraphs 45-47.

3. As discussed in paragraphs 30 and 31 above, where a person has multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one table. It is clear based on the evidence before the Tribunal that a symptom of the Applicant’s lower back condition is chronic pain however there is no evidence before the Tribunal that establishes chronic pain as a stand-alone impairment. As such the appropriate Impairment Table to consider the Applicant’s lower back condition is under is Table 4.

4. In a medical report dated 17 February 2020, Dr Novic provided:[46]

   Please note that [the Applicant] suffers from chronic lumbar spine degenerative disease. As a separate diagnosis, he also suffers from right sacroilieitis. He has had these conditions for many years. There are permanent and gradually deteriorating. His functionality is also gradually deteriorating due to chronic back pain and right pelvic pain. I believe that [the Applicant] qualifies for the 20 points required in assessment as there is severe functional impact on activities involving the spine.  He is unable to sustain overhead activities which qualifies for the 20 points required. As mentioned earlier this will only deteriorate and not improve.  There is no surgical intervention possible. Treatment is simply conservative with pain management and home-based gentle spinal stretches and exercises.

   [46]  Exhibit 3, Medical report by Dr Robert Novic.

5. It is clear that the Applicant’s lower back condition causes him pain and functional impacts.  Based on the evidence before the Tribunal I find that this condition can be assigned 10 impairment points under Table 4 of the Impairment Tables.

6. The evidence as it relates to the Relevant Period indicates that the Applicant would be able to sit in or drive a car for at least 30 minutes and was unable to bend forward to pick up a light object placed a knee high. The evidence as it relates to the Relevant Period does not establish that the Applicant’s lower back condition met the severe functional impact descriptors for Table 4 of the Impairment Tables.

7. The report of Dr Novic dated 17 February 2020 provides a recommendation that the Applicant’s lower back condition does cause a severe functional impact, however this report does not make reference to the Relevant Period and contradicts his reports made during the Relevant Period. As such the report of Dr Novic is of no assistance to this matter.

   Left Shoulder Condition

8. The Applicant’s left shoulder condition has been considered fully diagnosed, fully treated and fully stabilised since at least the JCA report dated 22 August 2009.[47] The Applicant sustained an injury in 2008 when he fell and landed heavily on his left shoulder resulting in a full thickness tear of the left supraspinatus tendon.[48] The Applicant underwent a left shoulder acromioplasty and arthroscopic excision and debridement in 2008 followed by physiotherapy, cortisone injections and manipulation under anaesthesia.[49]

   [47]  Exhibit 1, T Documents, T5, pages 53-58, JCA Report.

   [48]  Exhibit 1, T Documents, T10, page 76, JCA Report.

   [49]  Exhibit 1, T Documents, T10, pages 75-81, JCA Report; T34, pages 238-249, JCA Report.

9. Based on the evidence before the Tribunal I am satisfied that the Applicant’s left shoulder condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned an impairment rating under the Impairment Tables.  This finding is not in contention.[50]

   [50]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 8-9, paragraph 48.

10. Table 2 of the Impairment Tables deals with upper limb function and is used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. The descriptors in relation to no, a mild or moderate functional impact are as follows:[51]

    [51]  Impairment Table 2 – Upper Limb Function, Part 3 of the Determination. 

0

There is no functional impact on activities using hands or arms.

(1)      The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)      The person can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:

(a)      picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);

(b)      handling very small objects (e.g. coins);

(c)      doing up buttons;

(d)      reaching up or out to pick up objects.

10

There is a moderate functional impact on activities using hands or arms.

(1)      The person has difficulty with most of the following:

(a)      picking up a 1 litre carton full of liquid;

(b)      picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)      holding and using a pen or pencil;

(d)      doing up buttons or tying shoelaces;

(e)      using a standard computer keyboard;

(f)       unscrewing a lid on a soft-drink bottle.

1. The Respondent contends that the Applicant’s left shoulder condition should be assigned 0 points under Table 2 of the Impairment Tables, relying on the JCA Report dated 19 June 2017.[52] The Assessors recommendation and associated reasoning was outlined in the JCA Report as follows:[53]

   [52]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 9, paragraphs 49-52.

   [53]  Exhibit 1, T Documents, T34, pages 245, JCA Report.

   Functional Impact:

   There is no functional impact on activities using hands or arms.

   (1)   The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

   Discussion with GP, Dr R Novic on 13/06/2017: Client unable to perform heavy lifting - is able to pick up a 2kg jug, difficulty lifting about shoulder height. He has no difficulties using his right arm.

   The client is right-hand dominant and is able to perform most activities with his right arm. He reported: he unable to lift above shoulder height, difficulty reaching out, client reports his left arm discolours at times (especially in winter), he is able to pick up a 2 litre container of milk with his left (injured non-dominant) hand with some difficulty, no issues with fine motor skills reported: he is able to write, open bottles, taps, uses, a computer keyboard, is able to do buttons, prefers not to wear shoes with shoelaces - generally wears slip-ons.

   Supporting Reasons:

   The client does not meet criteria for mild impairment as he does not meet most of the criteria. He only meets two of the descriptors e.g. reaching up or out to pick up objects and picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag). He does not have any issues with tasks requiring the use of fine motor skills. He is independent with self-care tasks and activities of daily living and is able to drive a motor vehicle.

2. In a medical report dated 17 February 2020, Dr Novic provided:[54]

   Added to the above conditions are also chronic conditions of left Achilles tendinopathy and left rotator cuff tendinopathy. These conditions have been present for over 10 years. They are permanent and stable. They cause added functional impairment that would qualify for mild functional impairment for both conditions separately.

   [54]  Exhibit 3, Medical report by Dr Robert Novic.

3. It is clear that the Applicant’s left shoulder condition causes him pain and functional impacts.  Based on the evidence before the Tribunal I find that this condition can be assigned 0 impairment points under Table 2 of the Impairment Tables.

4. The evidence as it relates to the Relevant Period indicates that the Applicant did not meet the majority of the mild or moderate functional impact descriptors on Table 2 of the Impairment Tables.

5. The report of Dr Novic dated 17 February 2020 provides a recommendation that the Applicant’s left shoulder condition does cause a mild functional impact, however this report does not make reference to the Relevant Period and contradicts his reports made during the Relevant Period. As such the report of Dr Novic is of no assistance to this matter.

   Left Foot Condition

6. There are a number of x-ray, ultra sound and other references to the Applicant’s sore left foot dating back to 2012, before the Tribunal.  On 14 February 2014, Dr Novic referred the Applicant to a podiatrist at the Princess Alexandra Hospital stating that the presenting problem was: “Chronic left heel and left foot pain associated with periarticular erosions of the head of the 1^st metatarsal. Ultrasound of his heel shows chronic calcific  enthesopathy of the lower Achilles tendon”.[55]

   [55]  Exhibit 1, T Documents, T28, page 182, Referral from Dr Robert Novic to PAH Podiatry.

7. In a discussion with an Assessor for the purposes of a JCA Report on 13 June 2017, Dr Novic told the Assessor:[56]

   Left foot pain: diagnosis is unclear, maybe a collapsed arch but not sure. Client also suffers a lump next to his left knee and the cause is unknown. Client is seeing a podiatrist to manage conditions. Client able to walk from a few to a couple of hundred metres (also due to a spinal condition).

   [56]  Exhibit 1, T Documents, T35, page 252, Additional Medical Evidence for DSP Record.

8. The Respondent contends that the Applicant’s left foot condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period and relies on the JCA Report dated 19 June 2017.[57] The Assessors remarks are outlined in the JCA Report as follows:[58]

   Client reported symptoms and impact: pain at the back of the left ankle, sometimes he experiences pins and needles sensations, he is developing a lump next to the left knee which sometimes can be painful. He noted putting on heat helps. He is currently seeing a podiatrist, podiatry/shoe inserts have been cut, he needs to buy shoes for the inserts to be fitted. He has further appointment scheduled. He cannot run, he is able to walk a couple of hundred metres, he does not need a walking stick to mobilise. Other functional impacts as for the spinal condition.

   Condition is considered permanent due to the timeframe of symptoms, however it cannot be considered fully diagnosed (GP stated diagnosis is unclear and radiologist report in 2014 notes there is no plantar fasciitis), it also cannot be considered fully treated and stabilised as the client is currently in consultation with a podiatrist with further treatment pending.

   [57]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 9-10, paragraphs 53-56.

   [58]  Exhibit 1, T Documents, T34, page 242, JCA Report.

9. In a medical report dated 17 February 2020, Dr Novic provided the Applicant’s left foot condition has been present for over 10 years.[59] The report provides a recommendation that the Applicant’s left foot condition is permanent, stable and causes a mild functional impact, however this report does not make reference to the Relevant Period and contradicts his reports made during the Relevant Period. As such the report of Dr Novic is of no assistance to this matter.

   [59]  Exhibit 3, Medical report by Dr Robert Novic.

10. While I accept that the Applicant has a left foot condition, based on the evidence before the Tribunal, I find that this condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Applicant’s treatment in relation to this condition was ongoing.

11. As such, the Applicant’s left foot condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Mental Health Condition

12. There is limited evidence before the Tribunal in relation to the Applicant’s mental health condition during the Relevant Period. In his discussion with the Assessor on 13 June 2017, Dr Novic, noted that the Applicant may suffer from anxiety related to his medical conditions. Dr Novic indicated that treatment was nil apart from GP consultation.[60]

    [60]  Exhibit 1, T Documents, T34, page 242, JCA Report; T35, page 252, Additional Medical Evidence for DSP     Record.

13. To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[61]

    [61]  Impairment Table 5 – Mental Health Function, Part 3 of the Determination. 

14. The Respondent contends that the Applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, as there is no evidence from a psychiatrist or clinical psychologist confirming a mental health diagnosis.[62]

    [62]  Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 10, paragraph 59.

15. While I accept that the Applicant may have anxiety, based on the evidence before the Tribunal, I find that this condition was not fully diagnosed during the Relevant Period. There is no corroborating evidence that this condition was diagnosed by a psychiatrist or clinical psychologist during the Relevant Period.

1. As such, the Applicant’s mental health condition cannot be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

   Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?

2. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

   CONCLUSION

3. The Applicant has made a number of claims for DSP which both pre and post-date the application at hand. The Tribunal has been provided with medical and other associated documents dating from 2007 to 2020.

4. The Applicant sustained a work place injury in 2008 and slipped and fell on a slippery driveway in 2010 and consequently has medical conditions which are impacting upon his ability to function.

5. The Tribunal is limited to considering the Applicant’s conditions during the Relevant Period and the supporting evidence as it relates to that Relevant Period.  It may be that the Applicant’s conditions have worsened since the window in time that is currently before the Tribunal, being 21 April 2017 to 21 July 2017. The Applicant may test his eligibility for DSP at any time.

6. Based on the medical evidence before the Tribunal I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included lower back, left shoulder, left foot and mental health conditions.

7. Based on the evidence before the Tribunal, I find that the Applicant’s:

   a.    lower back condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 10 impairment points under Table 4 of the Impairment Tables;

   b.    left shoulder condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 0 impairment points under Table 2 of the Impairment Tables;

   c.     left foot and mental health conditions were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and as such cannot be considered permanent for the purposes of assigning impairment ratings under the Impairment Tables.

8. Consequently, the Applicant does not have 20 impairment points under the Impairment Tables and the requirements of section 94(1)(b) of the Act are not met.

9. Accordingly, the decision under review is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of

Member D Mitchell

..................[SGD]............................

Associate

Dated: 11 March 2020

Date of hearing:	20 February 2020
Applicant:	By phone
Advocate for the Respondent:	Ms Lisa Palmer
Solicitors for the Respondent:	Department of Human Services