Kazimierz Madej and Secretary, Department of Social Services - [2015] AATA 162

[2015] AATA 162

Division GENERAL ADMINISTRATIVE DIVISION

File Number

2013/5091

Re

Kazimierz Madej

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr C Ermert, Member

Date 20 March 2015

Place Melbourne
The Tribunal affirms the reviewable decision.

...............................[sgd].........................................
Member
Social Services − disability support pension – impairment tables – impairment rating – fully treated – fully stabilised – whether 20 impairment points − decision affirmed
LEGISLATION
Social Security Act 1991

Social Security (Administration) Act 1999

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

Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011

REASONS FOR DECISION
Mr C Ermert, Member
20 March 2015
INTRODUCTION

On 1 February 2012 Mr Kazimierz Madej, the Applicant, suffered an injury to his knee at his workplace. On 3 December 2012 he lodged a claim for disability support pension (DSP) with Centrelink. Centrelink is the service provider for the Department of Social Services, the Respondent. On his claim form Mr Madej listed his impairments as knee injury, arthroscopy surgery, cartilage removal.
On 9 January 2013 a Centrelink officer notified Mr Madej that his claim had been rejected as he did not have an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables). This decision was affirmed upon reconsideration on 12 March 2013. On 3 June 2013 an authorised review officer (ARO) affirmed the decision. On 28 August 2013 the Social Security Appeals Tribunal (SSAT) affirmed the decision of the ARO.
This matter is a review of the SSAT decision.
THE HEARING
The hearing was held over four days. Mr Madej represented himself and gave evidence on oath. Mr Noonan, a departmental lawyer, represented the Respondent.
I had before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents) and correspondence from Ms Elizabeth Hickey of the Department of Employment (Exhibit R1).
For Mr Madej, I had before me:
(a)The Applicant’s Statement of Facts, Issues and Contentions dated 12 September 2014 with 11 enclosures;
(b)The Applicant’s Further Statement of Facts, Issues and Contention dated 24 October 2014.
I took into evidence:
(a)A report by Dr Stella Kwong, Consultant Psychiatrist, dated 1 April 2014 (Exhibit A1);
(b)A report by Dr Cong Nguyen, dated 8 December 2013 (Exhibit A2);
(c)A report from Radclin Medical Imaging dated 26 March 1998 (Exhibit A3);
(d)A report from Radclin Medical Imaging dated 8 July 1998 (Exhibit A4);
(e)A report by Dr Lawrence Lau dated 23 July 1996 (Exhibit A5);
(f)A report by Dr David Elder dated 29 September 2014 (Exhibit A6);
(g)A report by Dr David Elder dated 21 October 2014 (Exhibit A7);
(h)A report by Dr Chris Baker dated 23 May 2014 (Exhibit A8);
(i)A letter to Mr Madej from Masisa Rechichi dated 27 October 2014 (Exhibit A9); and
On the second day of the hearing Mr Madej tendered the following documents:
(a)A bundle of six photographs of himself dated 18 September 2012 showing his swollen legs (Exhibit A10); and
(b)A bundle of medical reports (Exhibit A11) containing reports by:
(i)Dr Nishan Amerasinghe dated 7 May 2013;
(ii)Dr Wayne McGregor dated 16 August 2012;
(iii)Dr Avinash Babu dated 23 January 2013;
(iv)Western Health Inpatient Progress Notes dated 25 January 2013;
(v)Sunshine Hospital Pharmacy Department dated 23 January 2013; and
(vi)Dr Sarah Leer dated 21 January 2013.
For the Respondent, I had before me the Secretary’s Statement of Facts and Contentions dated 23 September 2014 with the following Supplementary T Documents:
(a)A report by Dr David Barton dated 14 August 2012 (ST1);
(b)The ESS Program Participation Summary for Mr Madej, dated 12 November 2013 (ST2);
(c)An email from Nikita Sharpe, Department of Employment, dated 20 December 2013 (ST3);
(d)Table 3 – Lower Limb Function (ST4);
(e)Table 1 – Functions Requiring Physical Exertion and Stamina (ST5);
(f)Table 4 – Spinal Function (ST6); and
(g)Table 5 – Mental Health Function (ST7).
LEGISLATION
The following legislation is relevant in this matter:
·Social Security Act 1991 (the Act);
·Social Security (Administration) Act 1999 (the Administration Act);
·Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
·Social Security (Requirements and Guidelines – Active Participation for Disability Support Pension) Determination 2011 (the Active Participation Determination).
THE ISSUES
Section 94 of the Act relevantly prescribes the qualifications for DSP:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i)the person has a continuing inability to work;
…
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) In a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) the person has actively participated in a program of support within the meaning of subsection (3C).
The Secretary’s Statement of Facts and Contentions says that:
The Secretary accepts that the Applicant suffers physical impairments caused by:
-     Hepatitis C;
-     Left knee osteoarthritis;
-     Hypertension;
-     Obesity;
-     Lung hilar lymphadenopathy & hypoventilation syndrome;
-     Sarcoidosis;
-     Lower limb swelling & cellulitis;
-     Lumbar spine osteoarthritis & lumbosacral disc bulge;
-     Impaired fasting glycaemia;
-     Anxiety & depression.
The Secretary concludes that the Applicant satisfies subsection 94(1)(a) of the Act.
I am satisfied that Mr Madej satisfies section 94(1)(a) of the Act and find accordingly.
The remaining issues I must determine are: whether, during the relevant period, Mr Madej’s impairments attracted a rating of 20 points or more under the Impairment Tables; if so, I must determine whether he has a continuing inability to work and has actively participated in a program of support.
THE RELEVANT PERIOD
Citing section 4(1) of Schedule 2 of the Administration Act, the Secretary contends that Mr Madej’s qualification for DSP is to be determined for the period between 3 December 2012 and 4 March 2013.
Section 4(1) of Schedule 2 of the Administration Act provides relevantly:
If:
a.A person…makes a claim for a relevant social security payment; and
b.The person is not, on the day on which the claim is made, qualified for the payment; and
c.… the person will…become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
d.The person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In accordance with the provisions of the Administration Act, I find that the relevant period during which I need to determine Mr Madej’s qualification for DSP is between 3 December 2012 and 4 March 2013.
THE EVIDENCE
Mr Madej said that while working for a contractor in February 2012 he twisted his knee. Two and a half months later he had an operation on his knee. Since then his health has deteriorated. As he was not able to exercise he has gained 20 kilograms. Mr Madej said that three to four weeks after his operation his leg started to swell from the knee to the foot. He was treated once per week with hydrotherapy and physiotherapy. The skin on his leg started to crack and bleed. His doctor, Dr Nguyen, recommended he stop the hydrotherapy and instead walk in sea water. He was also given tablets to take. Mr Madej said initially his leg reduced in size but now it no longer responds to treatment.
Regarding his sleep apnoea, Mr Madej said he had a machine from The Alfred Hospital but could not use it. He could not sleep with the machine and had to constantly take it off to go to the toilet. He said his doctor has told him not to drive a car as he might fall asleep.
Mr Madej said he was losing his sight because of his diabetes. His blood circulation was bad and his long trousers were uncomfortable. He now has ingrown toenails and swollen feet and his shoes and socks are tight on his skin.
He said that before his accident he was fit, happy and working hard. One year later he had become a wreck. He cannot walk far as he gets tired.
Mr Madej was seen by a lung specialist in regard to his sarcoidosis. He said the specialist saw some spots on his lungs which were nearly invisible.
In regard to his eyesight, Mr Madej said he can no longer see properly and needs to go for a check-up. He is waiting for gastric band (bariatric) surgery for his obesity. For his psychiatric condition he has seen Dr Stella Wong.
In cross-examination, Mr Noonan referred to the report by the Job Capacity Assessor (JCA) dated 11 December 2012 (T15, page 90) in which he wrote that Mr Madej was unable to climb flight of stairs, walk for more than 10 minutes, stand for more than 10 minutes, walking around shopping centre without rest. When asked if this description was accurate Mr Madej agreed he had said 10 minutes to the JCA but stated that he should have said four to five minutes.
Left Knee
In regard to Mr Madej’s left knee condition, Mr Noonan referred him to Impairment Table 3 – Lower Limb Function. Mr Madej gave the following responses to the descriptors:
(a)5 Points:
(i)He can stand for no longer than four minutes ((2)(a));
(ii)He started to use a walking stick about one and a half years ago, but refuses to use a walking stick while with his wife ((2)(b));
(b)10 Points:
(i)He can walk to the letterbox but the shops are too far ((1)(a));
(ii)He uses stairs with the assistance of the hand rail ((1)(b);
(iii)He can stand for a maximum of four minutes because of the pain in his knee ((1)(c));
(iv)He can use public transport if he does not have to walk, he can drive a motor vehicle but he cannot walk around in a shopping centre (2);
(c)20 Points:
(i)He needs assistance from his wife to walk and can walk only five metres before having to rest (1)(a)(i);
(ii)He leans on a shopping trolley to walk from the car park into a shopping centre (1)(a)(ii);
(iii)His knees are not strong enough to stand up without his wife’s assistance (1)(a)(iii); and
(iv)He needs assistance to use public transport as he cannot walk to bus-stops or train stations (1)(b).
Lower Limb Swelling and Cellulitis
Mr Madej said his leg first started to swell in August 2012, about a month after the operation on his knee. Mr Noonan referred to Exhibit A2 and asked if Mr Madej had any treatment other than the antibiotic and topical treatment recorded in paragraph 5. Mr Madej said he saw a dermatologist at The Alfred Hospital and was told to buy compression stockings and use moisturiser cream.
Mr Madej gave the following responses to the descriptors in Impairment Table 3 – Lower Limb Function:
(a)10 Points:
(i)He can get around independently in a wheelchair but, because of his left knee, he needs help to transfer to and from a wheelchair (3)(a); and
(ii)He can move around independently using a shopping trolley however he needs help from someone to bring the trolley to the car (3)(b);
(b)20 Points:
(i)He needs assistance to drive him to a station or bus stop and to board the train or bus. He cannot alight without assistance (1)(b); and
(ii)He can walk around a shopping centre using a trolley (2)(b).
Hepatitis C
Mr Noonan referred to a report by Dr Gordon dated 23 November 2012 (T14, page 80), in which he recorded the use of peg interferon as a future treatment. Mr Noonan also referred to his report dated 18 April 2013 (T1, page 9), in which he noted that the unit psychiatrist, Dr Toby Syme, feels that Kazimierz is not currently suitable for interferon-based therapy for his hepatitis C infection and will continue to review him at regular intervals. Mr Madej said he had not yet tried this therapy as he is waiting for the psychologist to certify him as fit to undertake the treatment.
Obesity
Mr Noonan referred to the report by Dr Glaspole dated 25 February 2013 (T21, page 104), in which he records as future treatment [d]ietary modification, exercise programme, referral for bariatric surgery if unsuccessful. Mr Madej said that in the early stages he was sure he could lose weight by himself. He has been on the waiting list for bariatric surgery about six months to a year.
Sleep Apnoea
Mr Noonan referred to Dr Glaspole’s proposed treatment of the use of a CPAP machine (T21, page 105) and asked Mr Madej if he had used a CPAP machine. Mr Madej said he tried one in 2013 but used it for only two nights. He said he had a chest infection and was continually coughing. He said he also had to go the toilet frequently and had to disconnect the machine on each occasion. Mr Madej said he had not tried a CPAP machine since.
Lung Condition
Mr Noonan referred to the report by Dr Nguyen dated 8 December 2013 (Exhibit A2), in which he recorded [l]ung hilar lymphadenopathy has not been fully diagnosed or treated as the cause is still unclear. Mr Noonan asked if there had been any investigations into the cause of the condition. Mr Madej said he has had regular CT scans and was seen by a lung specialist in early 2013. He described his symptoms as struggling for air at night and after getting into a car.
Sarcoidosis
Mr Noonan referred to the report by Dr Glaspole dated 16 January 2013 (T17, page 97), in which he records that he has organised a number of investigations. Mr Madej said he had blood tests at The Alfred Hospital in January or February 2013. He said that he saw another doctor in March or April 2013.
Hypertension
Mr Noonan referred to the report by Dr Nguyen dated 28 April 2014 (Enclosure 10 to the Applicant’s Statement of Facts, Issues and Contentions) in which he recorded a recommended treatment plan of medication, exercise and dietary changes for this condition. When asked about the functional effect of his high blood pressure Mr Madej said he did not know he had high blood pressure.
Impaired Fasting Glycaemia
When asked what treatment he was having for impaired fasting glycaemia, Mr Madej said he had been taking tablets since mid-2013.
In response to questions about the effects of his hepatitis C, obesity, sleep apnoea, lung condition, sarcoidosis, hypertension and impaired fasting glycaemia Mr Madej said (with reference to the descriptors in Impairment Table 1 – Functions Requiring Physical Exertion and Stamina):
(a)5 Points:
(i)He experiences occasional symptoms when walking without stopping to rest. He cannot walk more than five metres (1)(a)(i);
(ii)He is unable to perform household tasks because of his back and knee conditions (1)(a)(ii); and
(iii)He is unable to perform work-related tasks as he gets short of breath and tired. He said the worst problem is his lung condition and then his obesity. He cannot perform sedentary tasks as he falls asleep after 15 to 20 minutes (1)(b);
(b)10 Points:
(i)He experiences frequent symptoms of shortage of breath when performing day to day activities (1)(a);
(ii)He is unable to walk or mobilise in a wheelchair far outside his home but he does not suffer a shortage of breath when in a wheelchair or walking with a shopping trolley (1)(a)(i);
(iii)He has difficulty performing day to day household tasks because he becomes short of breath (1)(a)(ii); and
(iv)He is unable to use public transport or walk around a shopping centre (1)(b) and
(c)20 Points:
(i)He experiences the symptoms all the time (1)(a);
(ii)He cannot walk from the carpark into a shopping centre (1)(a)(ii);
(iii)He cannot use public transport without assistance (1)(a)(iii);
(iv)He cannot perform light household activities because standing makes him tired and he can sit for only short periods of time (1)(a)(iv); and
(v)He would have difficulty doing sedentary work for three hours (1)(b); and
(d)30 Points:
He is completely unable to perform activities requiring physical exertion (1)(a).
Lumbar Osteoarthritis
In regard to his back injury, Mr Madej said he received $300,000 compensation for his work accident in 1999 and did not work from then until about 2003. Mr Noonan referred him to the JCA report (T15, page 87) which stated [t]he client notes several sessions of chiropractor treatment, ceased treatment approximately 2 months ago because work cover ceased paying for his treatment. Mr Madej stated that the report was not correct and that he had had no treatment for his back condition.
Mr Noonan referred to the report of Dr Nguyen dated 8 December 2013 (Exhibit A2) which records no plan from specialists for active treatment with surgical interventions and conservative medical management not offering much relief in the past. Mr Madej said the report was correct. He stated he was offered five chiropractic treatments by Mr Bonnano; however he went only four times as he felt worse than before. Mr Madej agreed that he went to see Mr Haw last year however he received no treatment. He said he had no treatment for his back injury during the period in question. His last treatment was in 2007. He did not undertake hydrotherapy treatment as it was not good for his leg condition. Mr Madej said he took pain killers every time he had to go somewhere or undertake some activity.
Mr Madej gave the following responses to the descriptors in Impairment Table 4 – Spinal Function:
(a)5 Points:
(i)He has no difficulty with activities over head height (1)(a);
(ii)He has difficulty with bending to knee level (1)(b); and
(iii)Turning causes him pain (1)(c); and
(b)10 Points:
(i)He can sit in a car for 30 minutes if he takes pain killers in advance (1);
(ii)He has no problem reaching overhead however he cannot sustain an overhead activity because he cannot stand for long (1)(a);
(iii)He can move his head to look in all directions (1)(b);
(iv)He has great difficulty in bending forward (1)(c); and
(v)He requires assistance to get up out of a chair (1)(d); and
(c)20 Points:
(i)He is able to perform overhead activities (1)(a);
(ii)He is able to turn his head (1)(b);
(iii)He suffers pain if he attempts to bend forward (1)(c); and
(iv)He can sit for 10 minutes if he has taken some pain killers (1)(d).
Anxiety and Depression
Mr Noonan referred Mr Madej to the report of Dr Kwong dated 18 September 2013 (T1, page 8) in which she recorded Depression. Diagnosed by Dr Syme, a psychiatrist of Alfred Hospital, on 27^th March 2013. Mr Noonan referred also to the report of Dr Kwong dated 1 April 2014 (Exhibit A1) in which she stated I first saw him on 9^th May 2013. Mr Madej stated he first experienced symptoms of depression in 2012, long before the diagnosis in May 2013. He said he had not had any treatment before seeing Dr Syme.
Program of Support and Work Capacity

Mr Noonan referred Mr Madej to the records of his earnings shown in T documents pages 167 to 170. Mr Madej agreed the entries were correct. He stated that he found the jobs by himself (not with the help of the employment agency Job Prospects), for example, by contacting people with whom he had already worked. He did not use the resume prepared with the assistance of Job Prospects. Mr Noonan referred to the Return to Work Arrangements Template attached to Mr Madej’s Statement of Facts, Issues and Contentions and asked Mr Madej why he did not take up the job shown on page 3. Mr Madej said the job required standing, sitting and kneeling. The surgeon, Mr Hunt, had told him he should not do anything before the operation on his knee. Mr Madej said that soon after his operation the job advisor tried to give him the same job. Mr Madej asked for another job, however no other position was offered. He said the disagreement about the job then proceeded through conciliation to a matter before the court.
SUBMISSIONS
For his submissions Mr Madej relied on the material contained in his Statement of Facts, Issues and Contentions.
Because of the level of detail involved in this case Mr Noonan sought an adjournment to provide written submissions. Mr Madej also requested additional time to seek legal assistance to prepare any submissions he might wish to make in response to Mr Noonan’s submissions.
The Secretary’s Submissions are dated 12 December 2014. I resumed the hearing on 24 February 2015. Mr Madej explained that he was not successful in finding affordable legal assistance. He accepted the opportunity for a further adjournment to prepare his own submissions. Mr Madej orally presented his final submissions on 4 March 2015.
TRIBUNAL CONSIDERATIONS
Consideration of Conditions
I will consider each condition separately to determine their impairment points.
Lower Limb Cellulitis and Swelling
In his report dated 8 December 2013 (Exhibit A2) Dr Nguyen recorded:
Lower limb swelling and cellulitis was incompletely diagnosed and not fully treated. The condition has not stabilized and is not considered permanent.
Mr Noonan submitted that an impairment rating cannot be assigned as the condition is not permanent. Mr Madej made no submissions on this condition.
From the evidence I find that the condition of lower limb cellulitis and swelling is not permanent. The condition does not satisfy section 6(3) of the Impairment Tables which provides that an impairment rating can only be assigned to a condition if it is permanent. I find that an impairment rating cannot be assigned to this condition.
Left Knee Osteoarthritis
The medical evidence relevant to the consideration of this condition comprises:
·The report of Mr Justin Hunt, orthopaedic surgeon, dated 21 May 2013 (Enclosure 8 to the Applicant’s Statement of Facts, Issues and Contentions) stating:
I told him there was no active treatment I consider viable for him. I thought joint replacement surgery was an option in the future but only after he had lost a significant amount of weight and his other health issues were stable.
·The report of Dr Nguyen dated 8 December 2013 (Exhibit A2), stating:
Osteoarthritis of the left knee is considered fully diagnosed and fully treated as he has been considered too young for a knee replacement and there are no other surgical options at present from his orthopaedic surgeon Mr. John Hunt. It is considered permanent.
The Secretary’s Statement of Facts and Contentions acknowledges that the conclusion of Dr Nguyen and the JCA that this condition was fully treated and stabilised is probably correct.
In the Applicant’s Statement of Facts, Issues and Contentions Mr Madej contends that the condition was fully diagnosed, treated and stabilised as Mr Madej was under the care of an orthopaedic surgeon, had undergone multiple arthroscopies, and that any future treatment depended on a reduction in his weight. In addition, as Dr Nguyen noted, knee replacement surgery is generally done later in life.
In considering the medical evidence I note that Dr Nguyen was aware of Mr Hunt’s report when preparing his own report. I accept that his assessment is a fully informed medical opinion and find that the condition of Left Knee Osteoarthritis is permanent for the purpose of the Impairment Tables. Accordingly, an impairment rating can be assigned to the condition.
Mr Madej’s evidence relating to this condition was:
·although he told the JCA that he was unable to walk or stand for more than 10 minutes, he should have said four minutes;
·he can walk to his letterbox;
·he can walk only five metres before having to rest;
·he cannot walk to the shops which are 150 metres away ;
·he can use buses and trains only if it involves no walking;
·he can drive a motor car;
·he needs the help of his wife to stand up from a chair or bench; and
·he can walk independently for 20 minutes around a shopping centre by supporting his weight on a shopping trolley, however he needs his wife’s assistance to bring a trolley to the car.
The relevant Impairment Table is Table 3 – Lower Limb Function. The Introduction to Table 3 stipulates that by itself, self-reporting of the symptoms is insufficient and that there must be corroborating evidence of the person’s impairment. In this case the only corroborating evidence is that provided by Dr Nguyen in his most recent report dated 28 April 2014, recording that:
Mr Madej has a moderate functional impairment using his lower limbs, as he is unable to walk far outside his home and needs to drive or get other transport to local shops or community facilities. 10 Points.
From the corroborated evidence available I find that the impairment rating for Mr Madej’s condition of left knee osteoarthritis is 10 points.
Hypertension
In his report dated 8 December 2013 (Exhibit A2) Dr Nguyen recorded that [p]oorly controlled hypertension with left ventricular hypertrophy was fully diagnosed and fully treated and stabilized. Adjustments may be need and regular review of hypertension over time but it is considered permanent. I accept this evidence and find that the condition of hypertension is permanent. Accordingly, the impairment from hypertension may be rated according to the Impairment Tables.
In evidence Mr Madej said he did not know he had high blood pressure. In his report dated 28 April 2014 Dr Nguyen recorded that [d]ue to hypertension alone he has no functional impairment. 0 points.
From the available evidence I find that the impairment rating for the condition of hypertension is zero points.
Hepatitis C
In the Applicant’s Statement of Facts, Issues and Contentions, Mr Miles Browne, solicitor for Mr Madej, submits that in their respective decisions and assessments the SSAT, the ARO and the JCA found that this condition was fully diagnosed, treated and stabilised. He also relies on the report of Dr Nguyen dated 28 April 2014 in which Dr Nguyen allocates an impairment rating of five points.
In determining whether this condition is permanent I note the reports of:
·Dr Adam Gordon, gastroenterologist, dated 23 November 2012 (T-14, page 80) in which he records peg interferon as a possible future treatment;
·Dr Gordon, dated 18 April 2013 (T-1, page 9), in which he states that it is best to wait before commencing interferon-based therapy and we will review him again in our clinic in six months; and
·Dr Nguyen, dated 8 December 2013 (Exhibit A2) in which he records that [c]hronic Hepatitis C infection was fully diagnosed but not fully treated. The reason for not being fully treated is awaiting liver clinic team at the Alfred to assess fitness for treatment which has yet to be determined.
I note also that the latest report of Dr Nguyen is not within the relevant period of 3 December 2012 to 4 March 2013.
Section 6(4) of the Impairment Tables provides that a condition is permanent if, among other things, it has been fully treated. In determining whether a condition is fully treated section 6(5) requires me to consider:
·what treatment has occurred, and
·whether treatment is continuing or is planned in the next two years.
In this case the evidence is that peg interferon treatment was planned within a period of six months from April 2013 but had not yet taken place. I find that during the relevant period treatment was planned within the next two years and as a result the condition was not fully treated. Consequently, within the relevant period, the condition cannot be considered to be permanent within the requirements of section 6(4) of the Impairment Tables. Section 6(3)(a) of the Impairment Tables precludes the assignment of an impairment rating to a condition that is not permanent. I find that an impairment rating cannot be assigned to the condition of Hepatitis C.
Obesity
Before considering the assignment of an impairment rating to this condition I must first determine whether it is permanent; that is, whether it is fully treated, diagnosed and stabilised. In the Applicant’s Statement of Facts, Issues and Contentions the solicitor for Mr Madej stated that this condition is fully diagnosed, treated and stabilised within the claim period as the only treatment that was likely to lead to a significant improvement within the next two years is subject to a lengthy waiting list in the public health system and that Mr Madej was not able to afford the costs of having bariatric surgery in the private system.
In the Secretary’s Statement of Facts and Contentions, Mr Noonan contends that the condition was not fully treated and fully stabilised at the qualification period. Mr Noonan refers to the reports of:
·Dr Ian Glaspole, dated 25 February 2013 (T-documents page 104) who records the future/planned treatment of dietary modification and exercise program, but recognising that most interventions were minimally effective;
·Dr Nguyen, dated 8 December 2013 (Exhibit A2) who states the condition was not fully treated because the proposed exercise programs and dietary changes had not started.
In the relevant period Dr Glaspole diagnosed obesity in his reports dated 16 January 2013 (T-17, page 96) and 25 February 2013 (T-21, page 103). I am satisfied that the condition of morbid obesity is fully diagnosed.
In considering whether the condition is fully treated in the relevant period I note Dr Glaspole’s future/planned treatment is dietary modification … [and an] exercise programme. Referral for bariatric surgery if unsuccessful.
At the hearing Mr Madej provided no evidence of having modified his diet or adopting an exercise program in the relevant period. I note also that, in his report of 8 December 2013 (Exhibit A2), Dr Nguyen records that [m]orbid obesity was fully diagnosed but is not fully treated. The exercise programs and dietary changes have not been able to be initiated mainly due to access issues at the Alfred hospital and deteriorating general health.
In the Impairment Tables, access to treatments and their cost are issues to be considered in determining whether a condition is fully stabilised (sections 6(6)). However, the issues for determining whether a condition is fully treated are not qualified. Section 6(5) provides relevantly:
In determining whether a condition has been…fully treated…the following is to be considered:
(a)   …
(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.
In this case the evidence is that Mr Madej has not undergone the prescribed treatment of exercise programs and dietary changes. Nor has he had bariatric surgery. As a consequence, I find that the condition of obesity is not fully treated. Since the condition is not fully treated it is not permanent in the terms of section 6(4) and I cannot assign an impairment rating to it.
Sleep Apnoea
The relevant medical evidence is contained in the following reports:
·Dr Glaspole, 12 February 2013 (T-20, page 101) – it is clear that he has very severe sleep disordered breathing with a total apnoea hypopnoea index of 122 events per hour…I have organised for him to undergo CPAP implementation at Western Hospital and hopefully obtain a CPAP machine via the CPAP program run by the hospital;
·Dr Glaspole, 25 February 2013 (T-21, pages 105-106) – Diagnosis - Severe obstructive sleep apnoea; Treatment – awaiting CPAP implementation; and
·Dr Gordon, 18 April 2013 (T-1, page 9) – He has had a sleep study and was prescribed a CPAP machine at one point. I understand there has been a decision to perform another sleep study before pursuing the option of CPAP.
Mr Noonan contends that the sleep apnoea had not been fully diagnosed as it was still under investigation. In his report dated 25 February 2013 (T-21, page 105) Dr Glaspole recorded the diagnosis of Severe Obstructive Sleep Apnoea as confirmed. Dr Gordon recorded his understanding of a decision to perform another sleep study however that understanding does not necessarily affect the confirmed diagnosis. The further sleep study may be related only to treatment options for the condition. I do not consider that Dr Gordon’s understanding disturbs Dr Glaspole’s confirmed diagnosis. I find that sleep apnoea has been fully diagnosed.
In relation to the question of whether the condition was fully treated, the Applicant’s Statement of Facts, Issues and Contentions relates :
25. That the Applicant was awaiting implementation of the CPAP study is accepted.
…
26. However, in his report dated 28 April 2014 Dr Cong Nguyen notes that the Applicant required treatment with a CPAP machine but was unable to afford to buy or purchase it, and the CPAP was the only appropriate treatment at the time.
27. Section 6(7) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 states that reasonable treatment is that [which], inter alia, can be obtained at a reasonable cost. It is contended that what cost is reasonable must be ascertained with reference to the person’s ability to pay it, otherwise the requirement is meaningless.
I note the submissions in regard to the cost of CPAP treatment; however Mr Madej’s oral evidence was that he did indeed obtain a CPAP machine for treatment but that he used it for only two nights. He did not use it for longer because of the inconvenience of disconnecting the machine each time he needed to get up during the night. Mr Madej stated further that he has not tried a CPAP machine since.
I am not satisfied that the use of the CPAP machine for only two nights is sufficient to meet the requirement for the condition to be fully treated. I find that the condition is not fully treated. Therefore, the condition is not permanent according to the terms of section 6(4) of the Impairment Tables and I cannot assign an impairment rating to it.
Lung Hilar Lymphadenopathy and Hypoventilation Syndrome
The medical evidence regarding this condition is contained in the report by Dr Nguyen dated 8 December 2013 (Exhibit A2); in which he recorded that [l]ung hilar lymphadenopathy has not been fully diagnosed or treated as the cause is still unclear.
In his oral evidence Mr Madej testified that he has had regular CT scans and saw a lung specialist in early 2013. However, he has made no submissions regarding this condition.
From the evidence I find that the condition is not fully diagnosed and treated. I find that the condition is not permanent in the terms of sub-section 6(4) of the Impairment Tables and I cannot assign an impairment rating to it.
Sarcoidosis
The medical evidence regarding the diagnosis of sarcoidosis is in the following reports of Dr Glaspole:
·16 January 2013 – His pulmonary imaging demonstrates trivial interstitial changes which are likely to reflect sarcoidosis…I have organised a number of investigations (T-17 page 97);
·30 January 2013 – Problem List:… Probable sarcoidosis…
His blood tests have demonstrated an elevated serum ACE level and lowered
lymphocyte count, in keeping with my clinical suspicion of sarcoidosis. We are
still to obtain his echocardiogram
…I will review him once his sleep study has been performed (T-18
page 98);
·12 February 2013 – His lung function tests remain mildly restrictive with an FVC of 3.44 L, 66% predicted with a normal gas transfer. This implies that it is his obesity rather than parenchymal lung disease that is the basis for that deficit.
… I will review him once he has undergone CPAP implementation (T-
20 page 101);
·25 February 2013 – Dr Glaspole includes pulmonary sarcoidosis in a list of other medical conditions that are generally well managed and that cause minimal or limited impact on ability to function. In the column headed Treatment Dr Glaspole has inserted a ditto mark to indicate repetition of his earlier comment see other reports (T-21, page 107).
In his report dated 27 February 2013 (T-22, page 119) Dr Nguyen includes sarcoidosis in a list of other medical conditions.
Although Dr Glaspole and Dr Nguyen include sarcoidosis in their lists of conditions from which Mr Madej suffered, neither doctor states that the condition is fully diagnosed. Dr Glaspole’s report of 12 February 2013 casts doubt on whether Mr Madej has sarcoidosis, implying that his obesity is the cause of his lung function problem. Dr Glaspole reported his intention to review Mr Madej after his CPAP treatment. There is no evidence that sarcoidosis was confirmed as a result of the planned treatment.
In his later reports dated 8 December 2013 (Exhibit A2) and 28 April 2014 Dr Nguyen does not mention sarcoidosis as a condition suffered by Mr Madej. Mr Madej makes no submissions in regard to the condition.
From the evidence I am not satisfied that the condition is fully diagnosed and I find accordingly. As the condition is not fully diagnosed, it is not permanent in the terms of section 6(4) of the Impairment Tables and I cannot assign an impairment rating to it.
Impaired Fasting Glycaemia
In his report dated 8 December 2013 (Exhibit A2) Dr Nguyen states that during the relevant period Mr Madej suffered from, inter alia, impaired fasting glycaemia which subsequently developed in type II diabetes mellitus. He states further that the condition was fully diagnosed.
In the same report Dr Nguyen states that the condition was not fully treated for the same reasons as Mr Madej’s morbid obesity.
Mr Madej makes no submissions regarding this condition.
From the evidence I find that the condition was fully diagnosed but not fully treated. As a result the condition is not permanent in the terms of section 6(4) of the Impairment Tables and I cannot assign an impairment rating to it.
Lumbar Spine Osteoarthritis and Lumbosacral Disc Bulge
In his report dated 8 November 2012 Dr Moosa recorded a condition of lumbar disc degeneration.
In his report dated 8 December 2013 (Exhibit A2) Dr Nguyen stated that:
(a)During the period 3 December 2012 to 4 March 2013 Mr Madej suffered from …osteoarthritis and lumbosacral disc bulge with compression of nerve roots
(b)There was no current treatment plan regarding his lower back osteoarthritis and disc bulge during the pension qualification period, as his other medical problems were more active … Osteoarthritis of the lumbar spine and lumbosacral disc bulge with compression of the nerve roots was considered fully diagnosed and fully treated. The condition is considered permanent due to no plan from specialists for active treatment with surgical interventions and conservative medical management not offering much relief in the past.
On 11 December 2012 (T-15, page 87) the JCA recorded his opinion that:
The client notes several sessions of chiropractor treatment, ceased treatment approximately 2 months ago because work cover ceased paying for his treatment …This condition is assessed as permanent but not fully diagnosed, treated and stabilized for Centre link [sic] purposes due to the fact that the client has not obtained reasonable treatment for this condition to date.

In his report dated 28 April 2014 Dr Nguyen wrote that Mr Madej has had conservative treatment in the form of chiropractor treatment with Mr Joe Bonanno and he has seen an orthopaedic surgeon for an opinion regarding surgery with Mr Chris Haw.
From the reports of Dr Moosa and Dr Nguyen I am satisfied that the condition was fully diagnosed.
Mr Noonan contends that, in light of the reports of the JCA, Dr Moosa and Dr Nguyen, the condition was not fully treated and stabilised. The JCA considered the condition to be not fully treated and stabilized as Mr Madej had not obtained reasonable treatment. Dr Nguyen recorded that there was no treatment plan at the time for this condition and he considered the condition permanent. In this case I prefer the opinion of Dr Nguyen, the treating doctor. I accept that, at the qualification period, Mr Madej’s back condition was fully diagnosed, treated and stabilised in the terms of the Impairment Tables, and find accordingly.
The relevant Impairment Table is Table 4 – Spinal Function. Dr Nguyen’s evidence is the only evidence corroborating Mr Madej’s account of the functional impairments resulting from his back condition. In his report dated 28 April 2014 Dr Nguyen assigns an impairment rating of five points, stating Mr Madej has a mild functional impairment involving spinal function because he has difficulty bending to knee level and straightening up again. Dr Nguyen’s description is consistent with the descriptors for five points in Table 4. I accept Dr Nguyen’s assessment and find that Mr Madej’s back condition attracts an impairment rating of five points.
Anxiety and Depression
The Introduction to Impairment Table 5 – Mental Health Function provides that [t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).
The first record of Mr Madej being seen by an appropriately qualified medical practitioner is that contained in the report by Dr Gordon dated 18 April 2013 (T-1, page 9). Dr Gordon wrote that Kazimierz recently has been reviewed by Dr Toby Syme (our unit psychiatrist) in relation to suitability for interferon-based therapy for chronic hepatitis C.
In her report dated 18 September 2013 (T-1, page 8) Dr Stella Kwong, psychiatrist, records Depression. Diagnosed by Dr Syme, a psychiatrist of Alfred Hospital, on 27^th March 2013 and is currently treated by me. As this condition is not an endogenous illness, I am quite confident that it could be treated and stabilized providing his physical problems and psychosocial situations could be stabilized or improved. In her report dated 1 April 2014 (Exhibit A1) Dr Kwong records that [o]n 8^th May 2013, I received a referral from Dr Mahomed Moosa re Mr Madej (Attachment One) and I first saw him on 9^th May 2013.
There is no evidence that a condition of anxiety or depression was diagnosed in the qualifying period. Accordingly I find that, in the qualifying period, this condition was not fully diagnosed and was not permanent within the terms of the Impairment Tables. As a result I cannot assign an impairment rating to this condition.
Total Impairment Points
I have assigned impairment ratings to the conditions as follows:
·Lower limb cellulitis and swelling – no rating assigned;
·Left knee osteoarthritis – 10 points;
·Hypertension – zero points;
·Hepatitis C – no rating assigned;
·Obesity – no rating assigned;
·Sleep apnoea – no rating assigned;
·Lung hilar lymphadenopathy and hypoventilation syndrome – no rating assigned;
·Sarcoidosis – no rating assigned;
·Impaired fasting glycaemia – no rating assigned;
·Lumbar spine osteoarthritis and lumbosacral disc bulge – five points; and
·Anxiety and depression – no rating assigned.
For the relevant period I find that Mr Madej’s conditions attract a total impairment rating of 15 points.
CONCLUSION
In order to qualify for a disability support pension a person must satisfy all of the sub-sections of section 94(3) of the Act. Section 94(1)(b) provides that a person must have an impairment of 20 points or more. I have found that Mr Madej’s impairment attracts 15 points. Consequently Mr Madej’s impairments do not satisfy the requirements of section 94(1)(b) of the Act.
As Mr Madej’s conditions do not satisfy the provisions of section 94(1)(b) of the Act he cannot satisfy the provisions of s 94(1) of the Act. Therefore, there is no need for me to consider whether he has a continuing inability to work (section 94(1)(c)(i)) or whether he has participated in a program of support (section 94(2)).
I find that, during the relevant period, Mr Madej is not qualified for a disability support pension and affirm the decision under review.
Although Mr Madej is not successful in this application, he should understand that the decision in this case relates only to the period from 3 December 2012 to 4 March 2013. If he considers that the severity of his conditions has changed since that period, he can submit a new application for disability support pension to Centrelink, which will be considered in light of his conditions at the date of a new application.
DECISION
The Tribunal affirms the reviewable decision.

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

...............................[sgd]...................................
Associate
Dated 20 March 2015

Dates of hearing
17 November 2014, 2 December 2014,
24 February 2015 & 4 March 2015

Applicant In person

Advocate for the Respondent Mr Tim Noonan, Department of Social Services

Division	GENERAL ADMINISTRATIVE DIVISION
File Number	2013/5091
Re	Kazimierz Madej
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr C Ermert, Member
Date	20 March 2015
Place	Melbourne

Dates of hearing	17 November 2014, 2 December 2014, 24 February 2015 & 4 March 2015
Applicant	In person
Advocate for the Respondent	Mr Tim Noonan, Department of Social Services