Kenneth McGuinness and Secretary, Department of Social Services - [2014] AATA 202

Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2013/4841

General Administrative Division )
Re: Kenneth McGuinness

Applicant
And: Secretary, Department of Social Services
Respondent
DIRECTION
TRIBUNAL:             Mr S Webb, Member
DATE:   9 April 2014
PLACE:                  Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application by deleting the word ‘No’ in the last sentence of paragraph 5 and deleting the words ‘to await further documents’ in paragraph 6.
....................................................
Member
[2014] AATA 202

Division GENERAL ADMINISTRATIVE DIVISION

File Number(s)

2013/4841

Re

Kenneth McGuinness

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

Decision

Tribunal
Mr S. Webb, Member

Date 8 April 2014

Place Perth
The decision under review is affirmed.

..(Sgd) S Webb................
Mr S. Webb, Member
Catchwords
SOCIAL SECURITY – Disability Support Pension – impairments – requirement for 20 or more impairment points not satisfied – decision affirmed
Legislation
Social Security Act 1991, s 94

Social Security (Administration) Act 1999, Schedule 1
REASONS FOR DECISION
Mr S. Webb, Member
8 April 2014

Kenneth McGuinness suffers from several ailments, some of which have a very long history. His poor health caused him to cease work as a taxi driver. He has been paid Newstart Allowance for a number of years, but is excused from the activity test under medical certification from his treating doctors. He claimed Disability Support Pension (DSP), but this was rejected. He tested his review rights, but without success, and applied for review to this Tribunal.
The issue for determination is whether Mr McGuinness qualifies for DSP that he has claimed under s 94 of the Social Security Act 1991 (the Social Security Act). He will do so if he satisfies the qualification criteria in respect of –
(a)impairments attracting 20 or more impairment points under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination); and
(b)a continuing inability to work.
Furthermore, under the start date rules set out in Schedule 1 to the Social Security (Administration) Act 1999 (the Administration Act), Disability Support Pension is only payable pursuant to a claim if the claimant meets the qualification criteria on the day the claim is lodged or within 13 weeks thereafter.
As Mr McGuinness lodged the claim for Disability Support Pension that is presently the subject of these proceedings on 7 August 2012, it follows that for his claim to succeed he must be found to qualify before 8 November 2012. That is the period to which attention must be directed when determining this application (the Qualifying Period).
During the hearing, Mr McGuinness gave evidence of having participated in two programs of support. Whether this is correct is to be confirmed by Centrelink records. I ordered such records to be placed before the tribunal within seven days. After the hearing, Mr McGuinness stated that he was not able to provide further documents. No documents were filed by the Secretary during the allotted time.
As will appear, this issue is not determinative, and I do not need to await further documents or to consider it further.
Impairments and impairment points
Mr McGuinness explained the various ailments he suffers from. I have considered the medical reports and other documentation in evidence. I am satisfied that Mr McGuinness suffers from the following medical ailments –
(a)varicose veins, venous incompetence, peripheral oedema and lipodermatoschlerosis affecting his lower limbs;
(b)Factor V Leiden deficiency, affecting haematological clotting;
(c)multiple lipomas on his torso and limbs;
(d)bi-lateral shoulder joint pathology, including rotator cuff pathology, left shoulder bursitis, tendinopathy, adhesive capsulitis and a small inferior acromial spur;
(e)right elbow tendinopathy;
(f)bilateral carpal tunnel syndrome;
(g)lumbar spine disc degeneration and a transitional sacrilised lumbrosacral vertebra at L5;
(h)right hip degenerative joint disease;
(i)restless leg;
(j)reflux oesophagitis, dyspepsia, helicobacter and gastro-intestinal disease;
(k)asthma, allergic rhinitis and possible bronchiectasis, with shortness of breath;
(l)fatty liver;
(m)haemochromatosis;
(n)chronic upper limb, back, buttock and lower limb pain, affecting multiple joints; and
(o)depression.
These ailments are productive of or themselves constitute ‘physical, intellectual or psychiatric impairments’ for the purposes of s 94(1)(a) of the Social Security Act.
When it comes to rating Mr McGuinness’ impairments under the Determination, it is necessary to proceed according to the Rules set out in Part 2. Attention is directed at this point to the ‘functional impact of impairment’ rather than to the assessment of ‘conditions’ – the assessment of functional capacity in respect of an impairment ‘must be assessed on the basis of what the person can do, or could do, not on the basis of what the person chooses to do, or what others do for the person.’
For this reason it is necessary to identify the functional impairments that arise from the medical ailments afflicting Mr McGuinness.
At this point, it is important to observe that an impairment rating under the Tables set out in the Determination may only be assigned if the condition causing the impairment is ‘permanent’ and the impairment is likely to persist for more than two years.
Under Rule 6, for a condition to be permanent, it must be ‘fully diagnosed’ by an appropriately qualified medical practitioner. It must also be ‘fully treated’, ‘fully stabilised’ and likely to persist for more than two years. When determining whether a condition is fully diagnosed and fully treated the following are to be considered –
(a)Whether there is corroborating evidence of the condition;
(b)What treatment or rehabilitation has occurred in relation to the condition; and
(c)Whether treatment is continuing or is planned in the next two years.
A condition is fully stabilised if –
(a)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 within two 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 two 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.
The steps to be followed when assigning an impairment rating are set out in Rule 10 - the functional loss must be identified, then the relevant Table selected and finally the appropriate rating assigned. Where multiple conditions cause the same impairment, a single rating should be assigned under a single Table.
Under this framework of Rules, the first step is to determine whether each of the conditions Mr McGuiness suffers from which cause impairment are permanent. A condition that is not permanent or that does not cause impairment cannot be assigned a rating.
Varicose veins, venous incompetence, peripheral oedema and lipodermatoschlerosis
Mr McGuinness suffers from the following lower limb vascular conditions - varicose veins, venous incompetence, peripheral oedema and lipodermatoschlerosis. The history of these conditions is set out in the report of Dr Rahmatzadeh, a vascular registrar at the Royal Perth Hospital.[1] As can be seen, the history spans 40 years. The conditions are well documented and diagnosed, and treatment has been obtained. His most recent problems commenced in 2000 when he obtained right subfacsial perforator ligation and multiple varicose vein management. It appears that recent venous incompetence, deep vein thrombosis and lipodermatoschlerosis were diagnosed and treated in 2011[2] by Dr Teasdale,[3] a vascular surgeon.
[1] T1 folio 3.
[2] T1 folio 3.
[3] T17 folio 73.
On the evidence of Dr Grabowski, a vascular and endovascular surgeon, Mr McGuiness’ deep venous incompetence contributes to peripheral oedema, and this “can only be managed with long term compression therapy”.[4] It appears that no surgical options are recommended.
[4] Exhibit 6.
On Dr Roddy’s evidence, Mr McGuiness developed lower right leg pain following superficial schlerotherapy treatment by Dr Jansen. A number of thrombi were identified and treated that Dr Roddy considered were consistent with schlerotherapy. She reported that ‘post-schlerotherapy pain’ was diagnosed. He was treated with Endone, an opioidal analgesic, but this caused an adverse allergic reaction. Consequently pain management has involved Fentanyl patches and Mr McGuinness was referred to a pain management clinic for treatment. This had not been undertaken in 2012, when he applied for Disability Support Pension.
Whether treatment of this kind in a pain management clinic is likely to result in significant functional improvement to a level enabling Mr McGuinness to undertake work in the next two years is very far from clear. Lower limb pain is only one of several impairments that result from his various lower limb conditions. Pain management may increase Mr McGuinness’ ability to manage his lower limb pain, but it is not likely to have any effect on the underlying conditions that cause the pain - varicose veins, venous incompetence, peripheral oedema and lipodermatoschlerosis. These conditions cause impairments that are not confined to pain alone. Review of the medical evidence concerning the lower limb conditions I have found to be permanent reveals the following impairments other than pain[5] –
(a)restless leg;
(b)difficulty walking distances;
(c)difficulty standing for long periods; and
(d)difficulty negotiating steps without a handrail.
[5] T 13 folio 55.
These functional impairments are not solely attributable to pain and they are unlikely to be improved by a pain management program.
At this point it is important to observe that Mr McGuinness’ complaints of pain in other parts of his body, particularly in his shoulders, right hip and back, are well documented in the medical evidence. The causes of these symptoms, however, are multifactorial. Mr McGuinness has clear bi-lateral rotator cuff tears and tendinopathy in his shoulders. These conditions are productive of pain. He also has right hip pathology, following a motor vehicle accident several years ago, which is productive of pain. Furthermore, he has a degenerative lumbar spine and this, too is productive of pain. These pains and their causes are to be distinguished from the pain Mr McGuinness experiences as result of his lower limb conditions.
In his report dated 22 December 2011, Dr Grabowski discussed the possible onset of chronic “throbbing” pain in the right leg associated with “recurrent oedema” consequent to right leg injection schlerotherpy, although at that time it was not clear whether analgesic treatments (Fentanyl patches) would be effective in controlling this problem. Dr Mustapha’s evidence suggests that this treatment was only partly effective. He reported recurrent pain and swelling in the medical part of Mr McGuinness’ claim form. On 29 July 2013, Dr Roddy, a rheumatologist, reported bi-lateral shoulder pathology and right hip pathology, and “features to suggest fibromyalgia”.[6] While the Doctor does not locate the possibly fibromyalgia specifically, it may be inferred from her report that this relates to shoulder and hip joint pains. How this relates to the chronic pain Dr Grabowski subsequently referred to in his report of 22 December 2011,[7] or to the pains Dr Ker, a consultant physician in rehabilitation medicine, described in his report of 13 September 2013[8] is not entirely clear.
[6] T1 folio 6.
[7] T22 folio 88.
[8] Exhibit 7.
In view of the lack of clarity on this point, I will proceed on the basis that the chronic pain or fibromyalgia affecting Mr McGuinness’ shoulders, back and hip is itself a ‘condition’, consistent with Rule 6(9)(b) of the Determination. As will appear, this condition had not been fully diagnosed, treated or stabilised during the Qualifying Period. But this does not mean that Mr McGuinness’ lower limb vascular condition did not meet those tests at the requisite time. I am satisfied that it does.
Weighing the present evidence, it is quite clear that the varicose veins, venous incompetence and lipodermatoschlerosis were likely to persist for more than two years when Mr McGuinness made his claim for Disability Support Pension in 2012. No further treatment was (or is) likely to produce significant functional improvement enabling him to work within two years. For the purposes of the Determination, I am satisfied that these conditions are properly considered as ‘permanent’ during the qualifying period.
The impairments that result from the permanent lower limb conditions must be rated using the rating levels and criteria set out in Table 3.
The present evidence establishes a moderate functional impact that meets the rating criteria or descriptors at the 10 point level. Dr Mustapha confirms that Mr McGuinness has difficulty standing for long. I accept that he is able to use public transport or a motor vehicle and that he is able to walk around in a shopping centre, albeit perhaps with some difficulty and with a need for rest breaks, or with the use of a walking stick.
Factor V Leiden deficiency, affecting haematological clotting
This condition is documented in Mr McGuinness’ medical history. It is a permanent condition that requires ongoing maintenance treatment. Mr McGuinness was placed on Aspirin for the rest of his life, but he developed gastric problems.
I accept that this condition was fully diagnosed, fully treated and fully stabilised in the qualifying period. Future treatment is likely to involve anticoagulant medications of one kind or another, but treatment is simply maintenance to prevent deterioration or the development of thrombi. Mr McGuinness’ difficulties with Aspirin is not determinative and this may be resolved if his gastric conditions improve with treatment.
Mr McGuinness says that he has very poor circulation. But this is not supported by probative medical evidence.
I am satisfied that Mr McGuinness’ Factor V Leiden Deficiency is not, itself, productive of impairment, even though it may affect his circulation from time to time.
This results in a rating of 0.
Lipomatosis
There is no question that Mr McGuinness suffers from lipomatosis, with multiple lipomas on his limbs and his torso. This condition is, in all likelihood, autosomal dominant. It appears from the 6 August 2013 report of Dr Clarke, a general surgeon, that Mr McGuinness has a history of surgical treatment for this condition.[9] I accept that this is correct.
[9] T1 folio 7.
The condition is life-long, but of fluctuating severity – as Mr McGuinness pointed out, some of the lipomas do not trouble him whereas other cause direct and indirect symptoms of pain and discomfort. This is confirmed by Dr Clarke. I accept that Mr McGuinness experiences symptoms of varying intensity where a lipoma acts upon or is acted upon by surrounding tissues. For example, the lipomas between Mr McGuinness’ ribs and on the sides of his torso cause pain if he attempts to sleep on his side. Treatment is in the form of surgery.
As to whether this condition is fully diagnosed for the purposes of the Determination, I am satisfied that it is. In all likelihood the condition will require surgical treatment from time to time, and it appears that on 6 August 2013 Dr Clarke considered that further surgical treatment is required. This has not yet been undertaken. Even though the underlying condition may persist despite any amount of surgery, surgical intervention to resection lipomas that cause symptoms and impairment may lead to some improvement of functional capacity, at least temporarily.
Whether the prospect of further surgery means that this condition cannot be found to be fully treated at this stage, there is very scant evidence that it causes any significant functional impairment in terms of Mr McGuinness’ ability to undertake work.
For this reason, a rating of 0 points will result, whether or not the condition is permanent.
Bi-lateral shoulder joint pathology, including rotator cuff pathology, left shoulder bursitis, tendinopathy, adhesive capsulitis and a small inferior acromial spur
Mr McGuinness suffers from bi-lateral shoulder joint pathology, including rotator cuff pathology, left shoulder bursitis, tendinopathy, adhesive capsulitis and a small inferior acromial spur. The adhesive capsulitis has been diagnosed only very recently, and this aspect of his shoulder condition is well outside the qualifying period I must consider.
Nevertheless, bi-lateral shoulder pathology was apparent in 2012, when he lodged his claim for a Disability Support Pension. In a medical certificate dated 13 August 2012, Dr Mustapha reported “Both shoulders rotator cuff injury” and indicated that the conditions were permanent.[10] Past and future treatment was cortisone injection, but the Doctor indicated that the effects of the conditions would affect Mr McGuinness’ capacity to work or study fore “More than 24 months”. In a further medical certificate on 9 November 2012, Dr Mustapha set out similar information in respect of the shoulder conditions, but indicated (confusingly) that the conditions were temporary, but the effect of the conditions on Mr McGuinness’ capacity to work or study would continue for more than 24 months.[11]
[10] T14 folio 60.
[11] T16 folio 69.
On 1 December 2012, Dr Mustapha reported that Mr McGuinness suffered from a right shoulder rotator cuff injury in the form of a partial thickness tear of the supraspinatus tendon with right sub-acromial bursitis, which caused difficulty lifting and carrying objects and difficulty driving as a taxi driver. The presence of right shoulder pathology was confirmed by ultrasound on 27 August 2010.[12]
[12] T19 folio 85.
But he made no reference to this on 10 December 2012 in a Medical Report provided to Centrelink in connection with Mr McGuinness’ claim for DSP. Dr Mustapha reported that a left shoulder rotator cuff injury was diagnosed on 15 June 2012 and it was treated with a sub-deltoid cortisone injection. The presence of left shoulder pathology was confirmed by ultrasound on 15 June 2012.[13] The Doctor reported that future treatment would involve a further cortisone injection and that he considered the effect of the condition on Mr McGuinness’ ability to function was likely to persist for “3-24 months”, but this was “uncertain”.[14]
[13] T25 folio 93.
[14] T17 folio78.
Dr Mustapha was not called to give evidence so the content of his medical certificates and reports could not be clarified or tested.
Mr McGuinness told me that he has suffered from restricted movement and pain in both shoulders for a long time, and that the cortisone injections gave very temporary relief. On his evidence, he first injured his shoulders when working as a nurse in 1991, in respect of which he was paid compensation.
On 13 September 2013, Dr Ker, a physician, reported some “subtle curtailment of [Mr McGuinness’] range of shoulder movement, but the remainder of his upper limb movement was… within normal limits.”[15] Even though the Doctor reported no specific evidence of advancing musculo-skeletal pathology, he considered the likelihood of Mr McGuinness undertaking gainful employment was “somewhat remote.” Further radiological investigations were undertaken in October and November 2013, whereupon Dr Mustapha described the bi-lateral shoulder condition as “chronic”.[16]
[15] Exhibit 7, page 2.
[16] Exhibits 5, 8 and 10.

In a further report dated 24 March 2014, Dr Ker wrote “Although with treatment some improvement might be achieved in his range of left shoulder movement, such is the extent of bilateral shoulder pathology that he has that a circumstance whereby this surgical treatment would allow him to undertake useful work is I think not viable”.[17]
[17] Exhibit 1, page 2.
As can be seen, both of Dr Ker’s reports are well outside the qualifying period, and the most recent report follows a further injury to Mr McGuinness left shoulder that Dr Ker reported “is commensurate with a substantial capsulitis (“frozen shoulder”)”, a condition that is “a contraindication for surgical treatment”.
While the overlay of present evidence, well outside the qualifying period, may support a finding that Mr McGuinness’ shoulder conditions are permanent (at least on Dr Ker’s report), I cannot make such a finding in respect of the qualifying period from 7 August to 8 November 2012. At that time, further cortisone injections were proposed and the subsequent investigations and specialist referrals had not taken place.
That being so, I cannot be satisfied that Mr McGuinness’ shoulder conditions were fully treated or fully stabilised before the end of the qualifying period on 8 November 2012. It follows that these conditions cannot be assigned an impairment rating as of that time.
This is no doubt frustrating for Mr McGuinness. But as I explained to him during the hearing, the Tribunal’s consideration is directed to his claim for DSP on 7 August 2012, and in that regard, the legislation sets out the period in which a claimant must qualify in order for DSP to be payable. Mr McGuinness has made subsequent claims for DSP. But those claims are not before the Tribunal in these proceedings.
Right elbow tendinopathy
On 1 December 2012, Dr Mustapha reported the presence of a right elbow condition in the form of minor tendinopathy affecting the extensor tendon.[18]
[18] T 17 folios 81 and 82.
Mr McGuinness complained of ongoing bilateral elbow pain of varying intensity.
A nerve conduction study of the right ulnar nerve was undertaken on 13 October 2012 and no abnormality was reported, although a further study in two months was suggested if the symptoms persist;[19] no further study was undertaken. There is no further reference to the right elbow tendinopathy condition in the documents before me.
[19] T24 folio 91.
It is not presently established that this condition is permanent for the purposes of the Determination, and it cannot be assigned an impairment rating.
It appears that Dr Roddy has diagnosed a chronic pain condition affecting various parts of Mr McGuinness’ body, including his elbows. I will deal with this condition below.
Bilateral carpal tunnel syndrome
On 1 December 2012, Dr Mustapha reported the presence of bilateral carpal tunnel syndrome.[20]
[20] T 17 folios 81 and 82.
There is no further reference to this condition in the documents before me. It is not presently established that this condition is permanent for the purposes of the Determination, and it cannot be assigned an impairment rating.
Insofar as Mr McGuinness complains of persistent upper limb pain that is consistent with Dr Roddy’s diagnosis of a chronic pain condition, this will be addressed as a separate condition.
Lumbar spine disc degeneration and a transitional sacrilised lumbrosacral vertebra at L5
In his medical report for the purposes of Mr McGuinness’ DSP claim on 7 August 2012, Dr Mustapha noted lumbar disc degeneration that was generally well managed that caused limited or minimal effect on function. It appears that, at that time, treatment was Pandeine Forte and the condition caused difficulty standing, and lifting and carrying objects.
Mr McGuinness complained of low back pain over several years. This is referred to in Job Capacity Assessment reports on 8 June 2011,[21] 22 May 2012[22] and 20 August 2012.[23]
[21] T6.
[22] T11.
[23] T15.
There is a report dated 20 January 2011 of an X-ray taken of Mr McGuinness’ lumbar spine which refers to “a transitional lumbrosacral vertebra which has features of a sacralised L5”, but concludes “No abnormality seen. Disc heights are well preserved”.[24]
[24] T7 folio 8.
The present materials do not establish that this condition was fully diagnosed, fully treated or fully stabilised, such that it can be found permanent during the qualifying period. Even if the duration of symptoms, the 2011 X-ray, Dr Mustapha’s brief description and treatment with Panadeine Forte provide sufficient basis to conclude that the condition is fully diagnosed, treated and stabilised, the present evidence is that this condition had only a limited or minimal effect on function. This is not sufficient to assign a rating greater than 0 during the qualifying period.
Right hip degenerative joint disease
This condition is not referred to in Dr Mustapha’s medical report for the purposes of Mr McGuinness’ DSP claim. The Doctor refers to it in a subsequent report on 10 December 2012 as a condition that is generally well managed, which causes minimal or limited impact on function.[25]
[25] T17 folio 79.
An ultrasound was conducted on 4 April 2012 by Dr Patel, who reported[26] –
“Small groin adenopathy. Pain appears to correspond with the anterior right hip joint, perhaps further evaluation of the right hip joint should be performed.”
[26] T23 folio 90.
Further radiological investigations were undertaken on 19 November 2012.[27] These were reported to show mild joint space narrowing in the right hip joint and mild degenerative disease, as well as “Mild tendinopathic origin of the rectus femoris muscle on the right side at the anteroinferior iliac spine”.
[27] T28 folio 97.
Clearly, as these investigation were undertaken after the qualifying period, it cannot be said that the right hip condition of which Mr McGuinness complains was fully diagnosed during the qualifying period.
It follows that this condition was not permanent for present purposes during the qualifying period and it cannot be assigned an impairment rating.
Restless leg
On 6 August 2012, Dr Mustapha reported that Mr McGuinness suffers from restless leg.[28] This was said to be generally well controlled and causing minimal or limited impact on function. Treatment was with Diazepam. The condition was not likely to significantly improve and the functional difficulty it caused related to difficulty sleeping.
[28] T13 folio 57.
There is very scant evidence about this condition. It appears the condition was present on 19 July 2013, when Mr McGuinness was examined by Dr Rahmatzahdeh.[29]
[29] T1 folio 3.
On the present evidence, even if the condition was found to be permanent such that it could be assessed under Table 3, a 0 rating would be assigned.
Reflux oesophagitis, dyspepsia, helicobacter and gastro-intestinal disease
It appears that Mr McGuinness has suffered from epigastric symptoms for several years. He told me that he was treated for helicobacter pylori, and his symptoms improved, although the symptoms have returned again and he is due to undergo further tests.
He was investigated in respect of dyspepsia in 2011 – on 9 February 2011 duodenal and gastric biopsies were taken and a diagnosis of gastritis was made.[30]
[30] T20 folio 86.
Dr Mustapha referred to reflux oesophagitis in his medical report for the purposes of Mr McGuinness’ DSP claim.[31] It appears that he formed the opinion that this condition was unlikely to improve, but it was generally well managed and caused minimal or limited impact on function. That Mr McGuinness suffered from epigastric symptoms of reflux is apparent from medical certificates issued by Dr Mustapha in 2011.[32]
[31] Ibid.
[32] T4, T5, T7.
Even if there was sufficient evidence to establish that dyspepsia, gastritis or reflux oesophagitis was permanent during the qualifying period (and there is not), and an assessment was to be made under the relevant Table, there is not sufficient evidence to assign a rating greater than 0.
The diagnoses of helicobacter pylori and gastro-intestinal disease post-date the qualifying period.
Asthma, allergic rhinitis and possible bronchiectasis, with shortness of breath
In his medical report on 6 August 2012, Dr Mustapha referred to Mr McGuinness’ asthma as a condition that is generally well managed that causes minimal or limited impact on function. He indicated that significant improvement was expected. On 13 November 2012, Dr Gabbay, a respiratory physician, reported “suboptimally controlled asthma with possible associated bronchiectasis” and put in place a new treatment regime as well as arrangements for further investigations.[33]
[33] T27.
Dr Gabbay’s involvement commenced after the end of the qualifying period. It cannot be said, therefore, that Mr McGuinness’ respiratory condition was fully diagnosed, treated and stabilised during the qualifying period.
For this reason it cannot be assigned an impairment rating.
Fatty liver
There is evidence that Mr McGuinness suffered from abdominal pain prior to making his DSP claim, on 11 August 2010.[34] Investigations were undertaken on 27 and 28 August 2010[35] and fatty liver was diagnosed.
[34] T3.
[35] T18 and T19 folio 84.
Dr Mustapha makes no reference to this condition in his medical reports on 6 August 2012, 19 December 2012 and 10 December 2012.
On the present evidence, no rating can be assigned to this condition as it is not established that it was permanent or productive of impairment during the qualifying period.
Haemochromatosis
This condition was diagnosed well after the qualifying period. It is not referred to in any of the contemporaneous materials.
For this reason it was not permanent during the qualifying period and it cannot be assigned a rating.
Chronic upper limb, back, and hip pain and fibromyalgia
Mr McGuinness complained of pain in various parts of his body over an extended period. There is extensive reference to these symptoms in medical reports that post-date the qualifying period – see reports by Dr Ker, Dr Grabowski, Dr Roddy, Dr Nair and Dr Rahmatzadeh for example.
On 22 December 2011, Dr Grabowski reported “If however, the pain fails to respond to the Fentanyl patches, I would then consider referring [Mr McGuinness] to a chronic pain specialist”.[36]
[36] T22 folio 89.
It was not until 29 July 2013 that Dr Roddy made a diagnosis of fibromyalgia.
On this evidence, it is quite clear that Mr McGuinness’ pain symptoms were not fully diagnosed, fully treated or fully stabilised, such that a finding could be made that they were permanent during the qualifying period.
For this reason I am unable to assign an impairment rating to these conditions.
Depression
Dr Mustapha referred to Mr McGuinness suffering from depression in his report dated 6 August 2012. This condition was reported to be generally well managed and causing minimal or limited impact on function, treatment was Merlazapan and it was said to cause lack of motivation, sleep disturbance and insomnia.[37]
[37] T13 folio 57.
Mr McGuinness was not treated or examined by a psychiatrist or by a psychologist prior to or during the qualifying period.
As Dr Mustapha made the diagnosis of depression, evidence from a clinical psychologist is required for a rating to be assigned under Table 5. Without such evidence a rating cannot be assigned.
It follows that even if there was sufficient evidence to conclude that the condition was permanent during the qualifying period (and I draw no such conclusion from the present evidence), no rating could be assigned.
Impairment points
Considering all of Mr McGuinness’ medical conditions under the Determination, I am satisfied that his impairments attracted a rating of 10 impairment points.
It follows, that Mr McGuinness does not satisfy the requirements of s 94(1)(b) and he did not qualify for DSP during the qualifying period.
This means that the decision under review must be affirmed.
It is not necessary to proceed further to determine whether or not he has a continuing inability to work, or whether he has undertaken a program of support.

I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
...(Sgd) T Freeman....................
Associate
Dated 8 April 2014

Date of hearing 26 March 2014

Applicant In person

Representative for the Respondent Mr P Corbould

Solicitors for the Respondent Australian Government Solicitor

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2013/4841
Re	Kenneth McGuinness
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	8 April 2014
Place	Perth

Date of hearing	26 March 2014
Applicant	In person
Representative for the Respondent	Mr P Corbould
Solicitors for the Respondent	Australian Government Solicitor