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

Kennedy and Secretary, Department of Social Services (Social services second review) [2019] AATA 1201 (7 June 2019)
Division:GENERAL DIVISION
File Number:2018/7323
Re:Connie Kennedy
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:7 June 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............................[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 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
7 June 2019
INTRODUCTION

On 6 February 2018, Ms Connie Kennedy (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 28, pages 180-209, Claim for Disability Support Pension.
The claim was rejected on 26 February 2018,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 9 July 2018.[3]
[2] Exhibit 1, T Documents, T 31, pages 216-217, Centrelink Notice: Rejection of Disability Support Pension claim.
[3] Exhibit 1, T Documents, T 36, pages 240-245, Authorised Review Officer Decision and Notes.
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 of the ARO on

7 November 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 8-13, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 12 December 2018.[5]
[5] Exhibit 1, T Documents, T 1, pages 1-7, Application for Review.
On 17 May 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form[6] she lists the following disabilities, illnesses or injuries:[7]
-Spinal damage
-Missing left scapula
-Hip damage
-Bladder incontinence from spinal damage
-PTSD
-Carpal tunnel syndrome
[6] Exhibit 1, T Documents, T 28, pages 180-209, Claim for Disability Support Pension.
[7] Exhibit 1, T Documents, T 28, page 205, Claim for Disability Support Pension.
In October 2016, the Applicant made a claim for DSP which was rejected. The Applicant provided further medical evidence and on 21 November 2017 she underwent an Employment Services Assessment (ESA).[8] The Assessor found that the Applicant’s conditions were not fully diagnosed, fully treated or fully stabilised and therefore could not be assigned impairment ratings under the Impairment Tables.
[8] Exhibit 1, T Documents, T 25, pages 166-177, Employment Services Assessment.
On 13 February 2018, in a Disability Support Pension Medical Assessment Recommendation report the Assessor recommended that the Applicant’s claim for DSP made on 6 February 2018, be rejected based on a current and valid assessment (making reference to the 21 November 2017 ESA).[9]
[9] Exhibit 1, T Documents, T 29, pages 210-212, Disability Support Pension Medical Assessment Recommendation.
On 26 February 2018, a decision was made to reject the Applicant’s DSP application on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[10]
[10] Exhibit 1, T Documents, T 31, pages 216-217, Centrelink Notice: Rejection of Disability Support Pension claim.
The Applicant sought review of the decision and provided further medical evidence.
On 9 July 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[11]
·Your condition of post-traumatic stress disorder (PTSD) is not accepted as being permanent as there is insufficient medical evidence to support that this condition had been fully diagnosed, fully treated and fully stabilised within 13 weeks of you lodging your claim.
·Your conditions of left scapula removal, soft tissue injuries, bilateral carpal tunnel syndrome, degeneration of lumbar spine and mild kyphosis and osteoarthritis right hip are not accepted as being permanent as there is insufficient medical evidence to support that these conditions had been fully treated and fully stabilised within 13 weeks of you lodging your claim.
·Your conditions have not been assigned an impairment rating.
·You do not have an impairment rating of 20 points or more.
·As you have not met the requirement of an impairment rating of 20 points or more I have not considered whether you have met the continuing inability to work requirements.
·Your claim for Disability Support Pension was rejected on 6 February 2018.
·You sought a review of this decision on 4 April 2018 and the matter was referred for review to an Authorised Review Officer.
[11] Exhibit 1, T Documents, T 36, pages 240-245, Authorised Review Officer Decision and Notes.
On 16 August 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[12] On 7 November 2018, the SSCSD affirmed the decision under review.[13]
[12] Exhibit 1, T Documents, T 38, pages 247-248, Application to the SSCSD.
[13] Exhibit 1, T Documents, T 2, pages 8-13, Decision of the SSCSD.
THE LAW
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) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).
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;[14]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[15] and
3.Does the Applicant have a continuing inability to work?[16]
[14] Section 94(1)(a) of the Act.
[15] Section 94(1)(b) of the Act.
[16] Section 94(1)(c) of the Act.
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 that the purpose and general design principles of the Impairment Tables is that the Tables:
(i)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
(ii)are function based rather than diagnosis based; and
(iii)describe functional activities, abilities, symptoms and limitations; and
(iv)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[17] 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.[18] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[19]
[17] Section 6(1) of the Determination.
[18] Section 6(2) of the Determination.
[19] Section 8(1) of the Determination.
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.[20]
[20] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[21]
(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)more likely than not, in light of available evidence, to persist for more than 2 years.
[21] Section 6(4) of the Determination.
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.[22]
[22] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[23]
(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.
[23] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability 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.[24]
[24] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[25] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and 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.[26] 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.[27]
[25] Section 10 of the Determination.
[26] Sections 10(3) and (4) of the Determination.
[27] Sections 10(5) and (6) of the Determination.
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 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[28]
[28] Section 11(1) of the Determination.
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; 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.
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.[29]
[29] Section 94(3B) of the Act.
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.[30]
[30] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
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 are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[31]
[31] 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
The Relevant Period in this matter commences on 6 February 2018, being the date the Applicant lodged her claim for DSP, and ending 13 weeks later on 8 May 2018. 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
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[32] and the Respondent considers the Applicant’s impairments include: spinal condition,[33] urinary incontinence,[34] lower limb condition,[35] upper limb condition,[36] mental health condition,[37] and neuralgia.[38]
[32] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 9, paragraph 50.
[33] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 10-12, paragraphs 52-65.
[34] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 12-14, paragraphs 66-70.
[35] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 14-15, paragraphs 71-75.
[36] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 15-16, paragraphs 76-79.
[37] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 16, paragraphs 80-82.
[38] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 16, paragraph 83.
The remaining issues for the Tribunal to consider are:
1Whether, within the relevant period, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
2If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant gave honest answers to the questions she was asked. I accept that the Applicant suffers impairments and has had a particularly difficult time since being involved in a major motor vehicle accident in 2015.
The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[39] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[40] 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.[41] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[42]
[39] Section 6(3) of the Determination.
[40] Section 6(4) of the Determination.
[41] Section 6(2) of the Determination.
[42] Section 8(1) of the Determination.
It is noted that there is a large amount of medical evidence before the Tribunal dating from 1998 to March 2019. The Applicant has continued to seek medical treatment for her conditions and has provided further medical reports since making her initial claim for DSP on 31 October 2016.
The Respondent contended that the Applicant’s lower limb conditions (being bilateral ankle pain and hip pain);[43] mental health condition;[44] and neuralgia[45] (collectively described as other conditions) were not fully diagnosed, fully treated and fully stabilised during the Relevant Period and could not be assigned impairment ratings under the Impairment Tables.
[43] Exhibit 3, Secretary’s Statement of Facts and Contentions, pages 14-15, paragraphs 71-75.
[44] Exhibit 3, Secretary’s Statement of Facts and Contentions, page 16, paragraphs 80-82.
[45] Exhibit 3, Secretary’s Statement of Facts and Contentions, page 16, paragraph 83.
The Respondent contended that the Applicant’s upper limb condition that related to her absent left scapula was fully diagnosed, fully treated and fully stabilised at the Relevant Period and that the evidence indicates that the functional impact from this condition could not be separated from that of her carpal tunnel syndrome. The Respondent submitted that the Applicant’s upper limb condition as it relates to her absent left scapula can therefore not be assigned an impairment rating under the Impairment Tables.[46]
[46] Exhibit 3, Secretary’s Statement of Facts and Contentions, pages 15-16, paragraphs 76-79. This is also supported by Dr Marie Carmody’s response to a DSP Questionnaire dated 21 February 2018 – Exhibit 1, T-Documents, T 30, pages 213-215.
The Respondent contended that the Applicant’s upper limb condition that related to her carpal tunnel syndrome was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period and could not be assigned impairment ratings under the Impairment Tables.[47]
[47] Exhibit 3, Secretary’s Statement of Facts and Contentions, pages 15-16, paragraph 76-79.
At Hearing, the Applicant told the Tribunal that she was not contesting that her lower limb conditions (being bilateral ankle and hip pain), upper limb conditions (being absent left scapula and carpal tunnel syndrome), mental health condition or neuralgia (nerve pain) condition could not be assigned impairment points. This position was also reflected in the Applicant’s written submissions.[48]
[48] Exhibit 5, Applicant’s Response to Secretary’s Statement of Facts, Issues and Contentions.

The Applicant confirmed that her spinal and urinary incontinence conditions were the primary conditions before the Tribunal in relation to her claim for DSP.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am not satisfied that the Applicant’s other conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s other conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Based on the medical evidence before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s upper limb condition as it relates to her absent left scapula was fully diagnosed, fully treated and fully stabilised and that during the Relevant Period the functional impact caused by this condition could not be separated from that caused by her carpal tunnel syndrome. Accordingly, I find that the Applicant’s upper limb condition as it relates to her absent left scapula cannot be assigned impairment points for the condition.
Based on the medical evidence before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, while I am satisfied that that the Applicant’s upper limb condition as it relates to her carpel tunnel syndrome was fully diagnosed at the Relevant Period, I am not satisfied that the condition was fully treated or fully stabilised at the Relevant Period. Consequently, the Applicant’s upper limb condition as it relates to her carpel tunnel syndrome is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Spinal Condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a spinal condition during the Relevant Period. This point is not in contention.[49]
[49] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 10-12, paragraphs 52-65.
The Applicant suffered from back pain following a motor vehicle accident in 2015. A whole spine MRI was conducted on 22 December 2016 and identified some early disc degeneration in the cervical spine, no abnormality in the thoracic spine, and some disc degeneration in the lumbar spine. Moderately severe bilateral degenerative facet arthrosis was present in L4/5 and L5/S1.[50]
[50] Exhibit 1, T Documents, T 13, page 122, MRI whole spine: Dr Cameron Napper, Radiologist.
Further assessment was undertaken in 2016 and 2017 in relation to the Applicant’s spinal condition with recommendations that the Applicant would benefit from treatment with a multi-disciplinary chronic pain team[51] and ongoing physiotherapy.[52]
[51] Exhibit 1, T Documents, T 11, pages 105-120, Report: Dr Gauguin Gamboa, Orthopaedic Surgeon.
[52] Exhibit 1, T Documents, T 18, pages 128-142, Report: Rebecca Hague, Occupational Therapist.
In a report dated 5 December 2017, Dr Hugh English noted that the Applicant had a referral to Dr Richard Kahler for the purpose of further investigation to determine ‘if anything can be done’ for her back.[53]
[53] Exhibit 1, T Documents, T 26, page 178, Report: Dr Hugh English, Orthopaedic Surgeon.
On 9 April 2018, Dr Abdul Rahmani referred the Applicant to Dr John Albietz for opinion and management requesting that consideration of corticosteroid injection in the facet joints to help with pain relief and to improve functional status.[54]
[54] Exhibit 2, Supplementary T Documents, ST 22, pages 156-157, Referral from Dr Abdul Rahmani to Dr John Albietz.
Dr Albietz, Adult and Paediatric Spinal Surgeon, examined the Applicant on 11 May 2018 and opined that the Applicant would not reliably respond to surgical intervention on her spine, but notes that he considered trialling bilateral L4/5 and L5/S1 medial branch clocks or +/- facet ablations, and provided a referral for this. Such treatment was noted to possibly reduce pain to facilitate active participation in regular gentle exercise and stretching.[55]
[55] Exhibit 1, T Documents, T 35, page 239, Report: Dr John Albeitz, Spinal Surgeon.
In an Employment Services Assessment on 22 November 2018, the Assessor recorded the following:
The client noted constant overall back pain with limitations with sitting/standing and walking for any length of time. She reported seeing specialist Dr Albeitz in August 2018 and had 2 nerve blocks in her spine (May and June 2018) with limited improvement in symptoms. The client noted she has been attending physiotherapy since 2015 and noted she commenced physiotherapy with the Royal Brisbane Hospital in August 2017 (2-3 times a week).[56]
[56] Exhibit 1, T Documents, T 39, page 250, Employment Services Assessment.
The Respondent contends, that:
a. the extant referral to Dr Kahler for further investigation of her back condition (as noted in the letter of Dr English);
b. the referral for and commencement of additional treatment contemporary to and following the qualification period (with reference to the report of Dr Albietz particularly); and
c. the referral to a pain management clinic (which had been recommended on a number of occasions), and the likelihood of engaging in such a program;
demonstrate that the Applicant's spinal condition was not fully treated and stabilised as at the Relevant Period.[57]
[57] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 11, paragraph 60.
The Applicant contends that her spinal condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and should be assigned 10 points under Table 4 of the Impairment Tables.[58] At Hearing, the Applicant told the Tribunal:
[58] Exhibit 5, Applicant’s Response to Secretary’s Statement of Facts, Issues and Contentions.
·That her doctor did not recommend further treatment, rather she was the one looking for relief from the pain;
·If she is having a bad day, she cannot sit for 30 minutes;
·She can get things from an overhead cupboard if she stands back, the item is not heavy and she does not need both hands;
·She has trouble moving her head to look in all directions, she had to move her trunk;
·She can bend forward to pick up a light object placed at knee height at the right moment, but she could not do this repetitively;
·She has learnt which chairs she can sit in so that she can get in and out of them unassisted;
·When she is having severe back pain, she cannot function or communicate for two to three days, she is bedridden;
·She was receiving physiotherapy and being treated with medication during the Relevant Period;
·She had an injection in her spine after the Relevant Period, but that was at her insistence not the doctors; and
·She had been referred to the hospital pain clinic, however has not been called in yet.
On cross-examination, the Applicant told the Tribunal:
·When there is nothing more the doctors can do, they refer you to a pain clinic and she has been to one before and there is nothing they could do;
·She had not been to the private pain clinic she was referred to as she could not afford it and that she was only referred to the public hospital pain clinic after the Relevant Period because she had asked to be referred;
·She expected that the wait to get an appointment with the public pain clinic would be 12 months from referral;
·She had attended a pain clinic for neuralgia 15-18 years ago, but that it was alternative medicine, vitamins, a lifestyle change and a holistic approach that helped her be able to work as a pilot driver; and
·She is able to wash her own hair, however uses only one hand.
Based on the evidence before the Tribunal and the evidence provided by the Applicant at Hearing, I find that the Applicant’s spinal condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period.
I accept that the Applicant’s spinal condition caused a functional impact and that she was proactive in seeking further review of her spinal condition. During the Relevant Period, the Applicant was being referred for specialist investigation and treatment, which then subsequently occurred outside the Relevant Period. As such the Applicant’s spinal condition cannot be considered fully treated and fully stabilised during the Relevant Period. This does not mean that the Applicant’s spinal condition may not be considered fully diagnosed, fully treated and fully stabilised at a later date in time.
Accordingly, as I have found that the Applicant’s spinal condition is not fully treated and fully stabilised at the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Urinary Incontinence Condition
The first time the Applicant had raised her urinary incontinence condition with the Respondent was in her current claim for DSP made on 6 February 2018. The Applicant’s urinary incontinence condition was therefore not considered in any of the Respondent’s assessments prior to her claim and was also not considered by the ARO.
The Respondent contended that the Applicant’s urinary incontinence condition cannot be found to be fully diagnosed, fully treated and fully stabilised during the Relevant Period.[59]
[59] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, page 14, paragraph 70.
The evidence regarding the Applicant’s urinary incontinence condition as summarised by the Respondent is as follows:[60]
a.    a record of a surgery consultation recorded by Dr Michelle Porter on 19 August 2015, which states that the Applicant had 'Urge incontinence of bladder', that she had started doing pelvic floor exercises and review would occur if it did not improve and that she could go back to work;[61]
b.    the Applicant's General Practitioner, Dr Marie Carmody, completed a Continence Aids Payment Scheme Application Form in relation to the Applicant on 18 January 2018, which reported that the Applicant had a permanent and severe loss of bladder function;[62]
c.    the Applicant reported having urinary incontinence issues in her DSP claim form lodged on 5 February 2018;[63]
d.    Dr Carmody provided a brief response to a questionnaire dated 21 February 2018, which stated that the Applicant's urinary incontinence occurred following the motor vehicle accident in 2015, and that there was `no current reversible cause' of the condition;[64] and
e.    the Applicant reported to the Assessor who undertook the ESA on 22 November 2018 that she was currently attending physiotherapy to help with managing her condition.[65]
[60] Exhibit 3, Secretary’s Statement of Facts, Issues and Contentions, pages 12-13, paragraph 66.
[61] Exhibit 1, T Document, T 34, page 238, Patient Health Summary.
[62] Exhibit 1, T Document, T 27, page 179, Continence Aids Payment Scheme Application Form.
[63] Exhibit 1, T Document, T 28, page 205, Claim for Disability Support Pension.
[64] Exhibit 1, T Document, T 30, page 215, Questionnaire: Dr Marie Carmody.
[65] Exhibit 1, T Document, T 39, page 256, Employment Services Assessment.
On 21 February 2018, Dr Carmody provided an outpatient referral to the Gynaecology (Urogynaecology) specialist at the Royal Brisbane Women’s Hospital (RBWH) to seek review of the Applicant’s urinary incontinence.[66]
[66] Exhibit 2, Supplementary T Document, ST 20, pages 152-153, Outpatient referral form to the Gynaecology (Urogunaecology) Public clinic at RBWH from Dr Marie Carmody.
At the SSCSD Hearing on 7 November 2018, the Applicant told the Tribunal that:[67]
She had undergone physiotherapy for her continence issues at the RBWH and had previously kept a bladder diary. She stated that she had suffered from worsening incontinence, and was referred to the urology department at the RBWH around eight weeks prior to the hearing (so presumably around early September 2018), at which time it was recommended that she undergo sling surgery. Surgery was deferred because the Applicant had a urinary tract infection, and she subsequently advised the RBWH that she did not wish to proceed with the surgery because her symptoms had reverted to how they were previously, and she had concerns about the safety of sling surgery.
[67] Exhibit 1, T Document, T 2, page 11, paragraph 17, Decision of SSCSD.
In a response to questionnaire dated 21 February 2019, the person’s name is illegible on the document but it records the qualification as being ‘RBWH Gynaecology – Uerology’ it is stated that the Applicant:[68]
Suffers from mixed urinary incontinence, bad overactive bladder not responding to Ditropan 5mg PD, it is not obvious whether increasing the dose or having other medication will help. Having RP-MUS [Retropubic mid urethral sling] will not change her incontinence totally because it is not meant to treat OAB [overactive bladder] it is for SUI [stress urinary incontinence].
[68] Exhibit 2, Supplementary T-Document, ST 23, pages 158-160; Email from the Application to Tribunal with attached questionnaire – RBWH.
The Applicant contends that her urinary incontinence condition was fully diagnosed, fully treated and fully stabilised by Dr Carmody at the Relevant Period and that the referral to the specialist was only made to confirm diagnosis for her DSP claim.[69]
[69] Exhibit 5, Applicant’s Response to Secretary’s Statement of Facts, Issues and Contentions.
At Hearing, the Applicant told the Tribunal:
·She attended physiotherapy at the hospital urinary continence clinic, this did not improve her condition;
·She was referred to a urologist because she asked to be - to see if there was anything that could be done to improve her condition;
·The sling operation would be of no assistance at all;
·She met the requirements for the 20 point descriptors under Table 13 of the Impairment Tables; and
·The Job Capacity Assessor did not ask about incontinence.
On cross-examination, the Applicant told the Tribunal:
·That the condition started in August 2015 and at the time she was referred for blood tests, colonoscopy and endoscopy to try and establish the cause of the condition;
·That her urinary incontinence condition had remained unchanged since her motor vehicle accident;
·That she was referred to the RBWH in 2018 where she first saw a urologist who suggested sling surgery, however the urologist had not read all of her history and when she saw the doctor again in February 2019 the urologist agreed the sling surgery would not be of assistance due to the Applicant’s type of incontinence; and
·That the urologist does not want to see her again.
Understandably, the Applicant finds it difficult to talk about her urinary incontinence condition and as a consequence there is limited medical evidence before the Tribunal in relation to the condition. While I accept that the Applicant has a urinary incontinence condition which impacts upon her functional capacity, self-reported symptoms need to be corroborated.[70]
[70] Section 8(1) of the Determination.
Based on the evidence before the Tribunal, it is clear that the Applicant had not seen a specialist until well after the Relevant Period and there is no corroborating evidence of any treatment being provided for the Applicant’s urinary incontinence condition during the Relevant Period.
The Tribunal is limited at looking at the Applicant’s urinary incontinence condition, its diagnosis, treatment and stabilisation during the Relevant Period. As such while I accept the contentions made by the Applicant, the evidence before the Tribunal indicates that during the Relevant Period the Applicant’s urinary incontinence condition was still being investigated. The evidence submitted by the Applicant in relation to her urinary incontinence condition that was provided outside of the Relevant Period has little weight in relation to her current claim for DSP. It makes no reference to applying to the Applicant’s condition at the Relevant Period and therefore is taken to apply to the Applicant’s condition at the date of the report. This does not mean that the Applicant’s urinary incontinence condition may not be considered fully diagnosed, fully treated and fully stabilised at a later date in time.
Based on the evidence before the Tribunal and the evidence provided by the Applicant at Hearing, I find that the Applicant’s urinary incontinence condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.
Accordingly, as I have found that the Applicant’s urinary incontinence condition is not fully treated and fully stabilised at the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing Inability to Work
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
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s spinal condition and upper limb condition as it relates to her carpel tunnel syndrome were fully diagnosed, however were not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
I find that the Applicant’s urinary incontinence, lower limb, mental health and neuralgia conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s upper limb condition as it relates to her absent left scapular was fully diagnosed, fully treated and fully stabilised during the Relevant Period and that during the Relevant Period the functional impact caused by this condition could not be separated from that caused by her carpal tunnel syndrome and therefore I am unable to assign impairment points for these conditions.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 76 (seventy-six) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............................[SGD]..............................
Associate
Dated: 7 June 2019

Dates of hearing: 17 May 2019

Applicant: By Phone

Advocate for the Respondent: Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2019] AATA 1201

7 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Dates of hearing:	17 May 2019
Applicant:	By Phone
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services