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

Kertesz and Secretary, Department of Social Services (Social services second review) [2017] AATA 423 (5 April 2017)
Division:GENERAL DIVISION
File Number: 2016/3888
Re:Alexander Kertesz
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:5 April 2017
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd]..............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - 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)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
CASES
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
REASONS FOR DECISION
Member D K Grigg
5 April 2017
INTRODUCTION

On 10 September 2015 Mr Kertesz lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “degeneration & impinged nerves L3, L4, L5 & S1 – torn supraspinatus tendon right shoulder – depression – bursitis left shoulder & left leg” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T4, pages 60-89, Mr Kertesz’s Claim for DSP dated 10 September 2015.
To date Mr Kertesz’s claim for DSP has been rejected. Mr Kertesz seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr Kertesz’s claim was rejected by a Centrelink officer on 24 November 2015.[2] The JCA concluded that Mr Kertesz’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]
[2] Exhibit 1, T Documents, T5, page 90, Centrelink Decision dated 24 November 2015.
[3] Exhibit 1, T Documents, T39, pages 209-216, Job Capacity Assessment report dated 23 November 2015.
Mr Kertesz then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Kertesz’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T6, pages 92-96, ARO Decision dated 28 January 2016.
On 23 March 2016 Mr Kertesz lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Kertesz’s claim and affirmed the ARO’s decision on 16 June 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 2-13, SSCSD’s Decision and Reasons for Decision dated 16 June
2016.
Mr Kertesz has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, page 1, Application for Review of Decision dated 22 July 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Kertesz must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Kertesz’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Mr Kertesz must have a continuing inability to work.
[my emphasis]
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Kertesz meets the Section 94 Requirements is the date of the claim (in this instance as at 10 September 2015), unless Mr Kertesz becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Kertesz must have met the Section 94 Requirements between 10 September 2015 and 10 December 2015 (“Qualification Period”).
[8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration)
Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Kertesz’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[9]
DID MR KERTESZ HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,]
and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.
Mr Kertesz’s Medical Conditions
In 1993 Mr Kertesz’s lower lumbar spine showed minor degenerative changes.[11]
[11] Exhibit 1, T Documents, T9, page 118, CT – Lumbar dated 19 March 1993.
In 2000 Dr W Lee, General Practitioner, reported that Mr Kertesz’s lumbar spine condition made him unable to work.[12]
[12] Exhibit 1, T Documents, T10, pages 119-123, Work ability information – professional’s report by Dr Lee dated 19
December 2000.
In 2001 Mr Kertesz was assessed by Dr Balestrieri who reported that his “spinal condition is attributed to spondylosis with intermittent left leg sciatica (with no neurological deficits)”.[13]
[13] Exhibit 1, T Documents, T11, page 124, Medical assessment report by Dr Balestrieri dated 16 February 2001.
A CT scan was performed in 2004 which demonstrated:[14]
L2/3 – early disc prolapse
L3/4 prominent disc annulus and early disc prolapse
L4/5 – disc prolapse, thickening of the merging root on the left side and early osteoarthritic changes at the facet joints
L5/S1 – mild disc bulge, early osteoarthritic changes at the facet joints and swelling of the S1 root on the right side behind S1
[14] Exhibit 1, T Documents, T12, page 125, CT Scan report dated 23 November 2004.
An x-ray of Mr Kertsesz’s chest in 2006 showed “a slight thoracic scoliosis convex to the right [and] a little bronchial wall thickening in the right parahilar region”.[15]
[15] Exhibit 1, T Documents, T12, page 126, X-ray report dated 3 November 2006.
A further x-ray of Mr Kertsesz’s lumbar spine in 2013 found “spondylotic changes” present.[16]
[16] Exhibit 1, T Documents, T20, page 160, X-ray report dated 28 August 2013.
A further CT scan of Mr Kertsesz’s lumbar spine in 2013 found:[17]
Broad disc bulges…present and calcification at the L3/4 disc…consistent with disc degenerative changes. There is also a calcified broad disc bulge extending close to the right S1 nerve root, but no significant impingement noted. No focal disc protrusions…No spinal stenosis…Mild degenerative change…at the L5/S1 facet joints.
[17] Exhibit 1, T Documents, T21, page 161, CT scan report dated 2 September 2013.
Dr Olivia Waturuocha, Mr Kertesz’s General Practitioner, provided a medical report to Centrelink on 7 September 2013 and reported that Mr Kertesz:[18]
(a)was experiencing back stiffness and lower back pain which radiated down his left leg with pins and needles;
(b)bilateral shoulder strain, rotator cuff tendinopathy and bursitis with impingement which began in August 2013.
[18] Exhibit 1, T Documents, T22, page 162-168, Medical report by Dr Waturuocha dated 7 September 2013.
Dr Waturuocha described Mr Kertesz’s medical conditions:
(a)in her November 2013 report as:[19]
[19]         Exhibit 1, T Documents, T23, pages 169-179, Medical Report completed by Dr Waturuocha dated 13 November
2013.
(i)“lower back strain”. Dr Waturuocha reports that, as a result, Mr Kertesz experiences “lower back pain, muscle spasms, worse with certain postures/prolonged standing/sitting” and that it is uncertain whether this condition would effect Mr Kertsesz’s ability to function within the next 2 years;
(ii)“depression”. Dr Waturuocha reports that, as a result, Mr Kertesz experiences “low mood, poor concentration/attention…low energy levels” and that this condition should significantly improve Mr Kertsesz’s ability to function as his back condition improves.
(b)in a medical certificate in December 2013 as:[20]
(i)Anxiety and depression; and
(ii)Lumbar disc disease.
(c)in a medical certificate in February 2014 as:[21]
(i)Adjustment disorder/depression; and
(ii)Low back strain.
[20]    Exhibit 1, T Documents, T24, page 180, Medical Certificate completed by Dr Khammar dated
[21]         Exhibit 1, T Documents, T26, page 182, Medical Certificate completed by Dr Waturuocha dated 3 February 2014.
An ultrasound of Mr Kertesz’s left shoulder was performed in January 2014 and found “subscapularis and supraspinatus tendonosis”.[22] A further ultrasound of Mr Kertesz’s right shoulder was performed in March 2014 and found “a full thickness tear involves the supraspinatus tendon. Bursitis is also present”.[23] Another ultrasound of Mr Kertesz’s left shoulder was performed in May 2014 and found “rotator cuff tendonopathy [and] bursitis with impingement”.[24]
[22]         Exhibit 1, T Documents, T25, page 181, Ultrasound report dated 3 January 2014.
[23]         Exhibit 1, T Documents, T27, page 183, Ultrasound report dated 24 March 2014.
[24]         Exhibit 1, T Documents, T29, page 185, Ultrasound report dated 27 May 2014.
In May 2014, Dr Waturuocha, described Mr Kertesz’s medical conditions in a medical certificate as:[25]
(a)depression;
(b)low back strain; and
(c)shoulder strain and tendinosis.
[25] Exhibit 1, T Documents, T28, page 184, Medical Certificate completed by Dr Waturuocha dated 2 May 2014.
In August 2014, Dr Waturuocha, described Mr Kertesz’s medical conditions in a medical certificate as:[26]
(a)depression;
(b)low back strain; and
(c)shoulder strain and tendinosis.
[26] Exhibit 1, T Documents, T30, page 186, Medical Certificate completed by Dr Waturuocha dated 25 August 2014.
A further CT scan of Mr Kertesz’s lumbar spine in 2014 found:[27]
L2/3 – no disc herniation
L3/4 – mild posterior bulge of the disc annulus with no herniation evidence
L4/5 – posterior bulge of the disc annulus
L5/S1 – early right posterolateral protrusion of the disc [that] may compromise the right nerve root at this level.
Facet joints are satisfactory. S1 joints are within normal limits.
Early disc bulges at L3/4 and L4/5. There is a possible early right posterolateral protrusion of the L5/S1 disc.
[27] Exhibit 1, T Documents, T31, page 187, CT scan report dated 29 September 2014.
An ultrasound of Mr Kertesz’s left hip was performed in November 2014 and found:[28]
The greater trochanteric bursa is thickened and has an effusion suggestive of a bursitis…There is also a subcutaneous ovoid mass in the anterior leg…suggestive of a lipoma.
[28] Exhibit 1, T Documents, T32, page 188, Ultrasound report dated 25 November 2014.
In December 2014, Dr Waturuocha, described Mr Kertesz’s medical conditions in a medical certificate as:[29]
(a)depression;
(b)low back strain; and
(c)shoulder strain and tendinosis.
[29]Exhibit 1, T Documents, T33, page 189, Medical Certificate completed by Dr Waturuocha dated 2 December 2014.
Dr Waturuocha described Mr Kertesz’s medical conditions in her January 2015 report as:[30]
(a)“chronic low back pain (bulging disc)”. Dr Waturuocha reports that, as a result, Mr Kertesz experiences “low back pain, stiffness, restricted movement”;
(b)“depression with anxiety adjustment disorder”; and
(c)“shoulder strain – full thickness tear to the right supraspinatus tendon with bursitis” and “left shoulder strain – old injury”. Dr Waturuocha reports that Mr Kertesz experiences “intermittent periods of pain, stiffness and restricted movement in his shoulders”.
[30]Exhibit 1, T Documents, T34, pages 190-198, Medical Report completed by Dr Waturuocha dated 21 January 2015.
In May 2015 Mr Kertesz was examined by Dr Nicole Arthur, Clinical Psychologist. Dr Arthur reports that:[31]
(a)upon presentation Mr Kertesz was suffering from severe depression, severe anxiety and severe stress;
(b)after 6 counselling sessions, Mr Kertesz:
(i)was still suffering from severe depression and severe stress but there had been some improvement in his testing scores; and
(ii)was still suffering from anxiety but that it had improved from severe to moderate.
[31] Exhibit 1, T Documents, T37, page 207, Medical Report by Dr Arthur dated 21 July 2015.
Dr Waturuocha referred Mr Kertesz to Mr Paul Nothdurft, a Chiropractor, in July 2015. Mr Nothdurft reported that the x-rays and scans of Mr Kertesz’s back and shoulders “indicate a diagnosis of multi-level spinal joint strain with underlying spondylosis and disc degeneration”.[32]
[32] Exhibit 1, T Documents, T36, page 206, Report of Mr Nothdurft dated 20 July 2015.
In August 2015, Dr Waturuocha, listed Mr Kertesz’s medical conditions in a medical certificate as:
(a)Anxiety with depression;
(b)Chronic low back pain;
(c)Bilateral shoulder pain and tendinosis;
(d)Shoulder bursitis;
(e)Hip bursitis;
(f)Torn supraspinatus of right shoulder;
(g)Cervical spondylosis; and that
Mr Kertesz’s conditions were “currently stable and stationary”.[33]
[33] Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015.
Mr Kertesz did not indicate in his DSP Application how his Claimed Medical Conditions affect his functional ability.[34]
[34] Exhibit 1, T Documents, T4, at pages 60-89, Mr Kertesz’s Claim for DSP dated 10 September 2015.
The JCA was conducted face-to-face with Mr Kertesz on 27 October 2015 by a Registered Nurse, Registered Occupational Therapist and Registered Psychologist. The JCA assessors’ report confirmed that Mr Kertesz suffered from the following medical conditions:[35]
·Intervertebral disc disorder (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Depression (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Bursitis, Capsulitis and tendonitis – left hip, neck, lower back and shoulder (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Shoulder and upper arm disorder (which was found to be fully diagnosed but not fully treated and not fully stabilised
[35] Exhibit 1, T Documents, T39, pages 209-216, Job Capacity Assessment report dated 23 November 2015.
The Secretary accepts that Mr Kertesz had Impairments which satisfied section 94(1)(a) during the Qualification Period.[36] I am satisfied on the medical evidence that that is correct.
[36] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 20 January 2017, at para 26.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Mr Kertesz suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
(a)Depression and Anxiety;
(b)Lumbar spine Impairment;
(c)Shoulder Impairment; and
(d)Hip Impairment.
DO MR KERTESZ’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[37] They are function based[38] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[39]
[37] Determination, ss 4(2) and 5(2)(a).
[38] Determination, s 5(2)(b) and (c).
[39] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[40]
(a)the condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[40] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[41]
[41] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Kertesz’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[42]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[42] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[43] the following is to be considered:[44]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[43] For the purposes of ss 6(4)(a) and (b) of the Determination.
[44] Determination, see s 6(5).
A condition is fully stabilised[45] if:[46]
(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;[47] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[45] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[46] Determination, see s 6(6).
[47] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Mr Kertesz’s medical history, in relation to the condition causing the Impairments.[48]
DEPRESSION AND ANXIETY IMPAIRMENT
[48] Determination, see s 6(2).
Is Mr Kertesz’s Depression and Anxiety impairment permanent and likely to persist

Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, the 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). Without such evidence no Impairment Rating can be assigned.
In May 2015 Mr Kertesz was examined by Dr Nicole Arthur, Clinical Psychologist. Dr Arthur reported that upon presentation Mr Kertesz was suffering from severe depression, severe anxiety and severe stress.[49]
[49] Exhibit 1, T Documents, T37, page 207, Medical Report by Dr Arthur dated 21 July 2015.
The Secretary accepts that Mr Kertesz’s depression and anxiety was fully diagnosed.[50] Dr Arthur’s report supports the earlier diagnosis made by Dr Waturuocha and therefore satisfies the requirements in Table 5.
[50] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 20 January 2017, paras 37-38.
The JCA concluded that Mr Kertesz’s depression was fully diagnosed but not fully treated and not fully stabilised because subsequent assessment and treatment options may further reduce symptoms.[51] The JCA reported that Mr Kertesz told them he was not currently on any medication.
[51] Exhibit 1, T Documents, T39, page 211, Job Capacity Assessment dated 23 November 2015.
The Secretary also submits that Mr Kertesz’s depression was not fully treated and not fully stabilised in the Qualification Period because he had not received appropriate treatment, such as a sustained period of counselling in conjunction with pharmacological intervention.[52]
[52] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 20 January 2017, para 39.
At the hearing Mr Kertesz gave evidence that:
(a)he continued to have a few counselling sessions with Dr Arthur in July/August 2015 and then stopped;
(b)he had one session with a psychiatrist;
(c)Dr Waturuocha advised him that there was no further benefit to him in continuing counselling treatment;
(d)he is against taking anti-depressant medication; and
(e)he can control his depression and anxiety to an extent by not putting himself in stressful situations.
The difficulty with this evidence is that there is no corroborating medical evidence to support it. There is no report from Dr Waturuocha confirming that counselling treatment was not working. In fact Dr Arthur’s report in July 2015 noted that there had been some improvement in the severity of Mr Kertesz’s depression and anxiety after several sessions with her.[53] Further, Dr Arthur recommended Mr Kertesz continue his treatment.[54] There is also no evidence from the psychiatrist with whom Mr Kertesz says he had a single session and the medical certificate provided by Dr Waturuocha in August 2015 reports that the planned treatment for these two conditions was to continue psychological therapy.[55]
[53]         Exhibit 1, T Documents, T37, page 207, Medical Report by Dr Arthur dated 21 July 2015.
[54]         Exhibit 1, T Documents, T37, page 207, Dr Arthur’s report dated 21 July 2015.
[55]         Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015
There is no other treatment information available.
I agree with the Secretary. I find, that for the purposes of the legislation and the requirement that Mr Kertesz becomes qualified within the Qualification Period, Mr Kertesz’s condition has not been fully treated or fully stabilised. From the evidence available it is uncertain whether:
(a)Mr Kertesz would likely benefit from further treatment and therapy;
(b)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Kertesz to undertake work in the next 2 years; and, therefore
(c)Mr Kertesz has undertaken reasonable treatment for the condition.
As a result I find that Mr Kertesz’s depression and anxiety Impairment is not permanent and no Impairment Rating can be assigned.
Mr Kertesz is, of course, able to submit a new application for DSP in the event that his condition is now permanent.
LUMBAR SPINE IMPAIRMENT
Is Mr Kertesz’s lumbar spine impairment permanent and likely to persist for at least 2 years?
The medical evidence concerning Mr Kertesz’s lumbar spine condition is set out in paragraphs 12-20, 24, 27, 29 and 30 above.
Dr Waturuocha, Mr Kertesz’s General Practitioner, reported in November 2014 that it was uncertain whether this condition would affect Mr Kertsesz’s ability to function within the next 2 years.[56]
[56] Exhibit 1, T Documents, T23, pages 169-179, Medical Report completed by Dr Waturuocha dated 13 November
2013.
In August 2015 Dr Waturuocha reported that this condition was “currently stable and stationary”.[57] At that time Mr Kertesz was being treated with Panadol Osteo and Nurofen and physiotherapy and chiropractic care were planned treatments.
[57] Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015.
Mr Kertesz began chiropractic care in July 2015 and exercises were recommended.
The JCA reported that Mr Kertesz said he had:
(a)seen a specialist in approximately March 2014 who had recommended Laminectomy surgery. However, there are no records of this assessment;
(b)not attended physiotherapy since March 2015; and
(c)attended three sessions with the chiropractor but that his symptoms were exacerbated as a result.
The Secretary concedes that Mr Kertesz’s spinal condition is fully diagnosed, fully treated and fully stabilised.[58] I agree with the Secretary.
[58] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 January 2017, para 57.
Using the Impairment Tables
I have to assess the level of impact of Mr Kertesz’s lumbar spine Impairment against the descriptors[59] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[60]
[59]Determination, see ss 3 and 5(3).
[60] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[61]
[61] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[62]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[62] Determination, see s 7.
I must not take into account the following information in applying the Tables:[63]
1symptoms reported by Mr Kertesz in relation to his condition where there is no corroborating evidence;
2unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Kertesz’s local community.
[63] Determination, see s 8.
Which Tables are appropriate are determined by:[64]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[64] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[65]
[65]Determination, see s 10(3).
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.[66]
[66]Determination, see s 11(1)(c)
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[67]
[67]Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[68]
[68]Determination, see s 11(5).
Evidence Identifying the Loss of Function
The corroborating medical evidence identifying the impact on Mr Kertesz’s ability to function as a result of this Impairment is provided by Dr Waturuocha and Mr Nothdurft.
In November 2013 Dr Waturuocha reported that Mr Kertesz’s lumbar spine Impairment impacts on:[69]
Walking, bending, sitting & standing are fine
Lifting, carrying & manipulating objects aggravates his condition
[69] Exhibit 1, T Documents, T23, page 174, Medical Report completed by Dr Waturuocha dated 13 November 2013.
In July 2015 Mr Nothdurft reported that this Impairment was affecting Mr Kertesz’s “ability to lift and move in his daily routine”.[70]
[70] Exhibit 1, T Documents, T36, page 206, Report of Mr Nothdurft dated 20 July 2015.
The JCA reported as follows:[71]
Symptoms – Low back pain, stiffness and restricted movement. The client noted he has back pain majority of the time and limited physical tolerances e.g. sitting ½ hour, standing – limited, walking 10-15 minutes, difficulty with hills/bending and noted he can drive for ½ hour-45 minutes (rolled up towel behind his back when driving) and attends to showering/dressing independently…he uses a walking stick at times when pain has increased
[71] Exhibit 1, T Documents, T39, page 210, JCA Report dated 23 November 2015.
At the hearing, Mr Kertesz:
(a)disputed the JCA’s report that he could sit comfortably for 30 minutes; and
(b)gave evidence that, albeit with varying degrees of pain, he:
ocan walk for 10-15 minutes
ocan drive for ½ hour,
oattends to showering/dressing independently
ouses a walking stick on occasions when pain has increased
ocan bend forward to pick up a light object from a desk or table but not from knee height.
In his DSP claim form Mr Kertesz indicated that this condition does not make it difficult for him to use public transport or care for himself.[72]
[72] Exhibit 1, T Documents, T4, page 86, DSP Claim form dated 10 September 2015.
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 4 of the Determination which deals with Spinal Functions is the relevant Table.
Table 1 – Functions requiring Physical Exertion and Stamina Impairment Rating
The introduction to Table 4 provides that:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
The Secretary submitted that the appropriate Impairment Rating under Table 4 is 10 points.[73] Mr Kertesz submitted that the appropriate Impairment Rating under Table 4 is 20 points.
[73]See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 20 January 2017, para 58.
In order to assign an Impairment Rating of 20 points under Table 4 the evidence would need to show that Mr Kertesz’s lumbar spine Impairment was having a “severe” functional impact and he was unable to:
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Kertesz is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[Mr Kertesz] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[Mr Kertesz] has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)[Mr Kertesz] is unable to bend forward to pick up a light object placed at knee height; or
(d)[Mr Kertesz] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
There was no corroborating medical evidence presented that Mr Kertesz is unable to:
(a)perform any overhead activities; or
(b)turn his head, or bend his neck, without moving his trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
The evidence available indicates that Mr Kertesz:
(a)can drive a car for 30 minutes;
(b)may have some difficulty lifting items over his head for a sustained period; and
(c)is unable to bend forward to pick up a light object placed at knee height.
The evidence supports an Impairment Rating of 10 points under Table 4.
SHOULDER IMPAIRMENT
Is Mr Kertesz’s shoulder impairment permanent and likely to persist for at least 2 years?
The medical evidence concerning Mr Kertesz’s shoulder condition is set out in paragraphs 21, 27, 29 and 30 above.
In August 2015 Dr Waturuocha reported that this condition was “currently stable and stationary”.[74] At that time Mr Kertesz was being treated with Panadeine Forte and Voltaren and physiotherapy was the planned treatment.
[74] Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015.
The JCA reported that Mr Kertesz said he had:[75]
(a)seen a specialist in approximately November 2014 who had recommended injections but he refused. There are no records of this specialist assessment;
(b)he had undertaken physiotherapy. There are no records of this treatment; and
(c)attended three sessions with the chiropractor but said his symptoms were exacerbated as a result.
[75] Exhibit 1, T Documents, T39, page 212, Job Capacity Assessment dated 23 November 2015
The JCA concluded that with specialist assessment and treatment that Mr Kertesz’s symptoms may be further reduced.[76]
[76] Exhibit 1, T Documents, T39, page 212, Job Capacity Assessment dated 23 November 2015
The Secretary submits that Mr Kertesz’s shoulder conditions were fully diagnosed but not fully treated and not fully stabilised.[77]
[77] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 January 2017, para 48.
At the hearing, Mr Kertesz gave evidence that:
(a)he had been examined by an orthopaedic specialist, Dr Remington, who recommended surgery for his torn tendon. The surgery was estimated to cost $10,000, require significant care and assistance post-surgery and would restore 80% function of his shoulder. Mr Kertesz says he could not afford the surgery, lives alone so would have no care available and did not consider the benefit of surgery outweighed those factors.
(b)while acknowledging that cortisone injections had been recommended to him he did not want to inject “poison” into his system, particularly when it would only provide a short-term relief from pain; and
(c)he treats his shoulder conditions with over-the-counter pain medication as and when required.
Unfortunately, there is no corroborating medical evidence from a Dr Remington or orthopaedic specialist, confirming what is the recommended reasonable treatment. Nor is there any corroborating medical evidence that Mr Kertesz had physiotherapy treatment which did not assist his condition.
I also note that cortisone injections had been recommended to Mr Kertesz on multiple occasions since 2009.[78]
[78] Exhibit 1, T Documents, T18, page 151, Medical Report from Dr Wilson dated 31 March 2009; T22, page 166,
Medical Report from Dr Waturuocha dated 7 September 2013.
The medical certificate provided by Dr Waturuocha in August 2015 reports that the planned treatment for the shoulder conditions was physiotherapy.[79]
[79] Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015
I find that there is insufficient evidence to determine whether Mr Kertesz’s shoulder condition was fully treated and fully stabilised.
I find, that for the purposes of the legislation and the requirement that Mr Kertesz becomes qualified within the Qualification Period, Mr Kertesz’s condition has not been fully treated or fully stabilised. From the evidence available it is uncertain whether:
(a)Mr Kertesz would likely benefit from further treatment and therapy;
(b)any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Kertesz to undertake work in the next 2 years; and, therefore
(c)Mr Kertesz has undertaken reasonable treatment for the condition.
Therefore, I am unable to assign an Impairment Rating for this condition.
HIP IMPAIRMENT
Is Mr Kertesz’s hip impairment permanent and likely to persist for at least 2 years?
The medical evidence concerning Mr Kertesz’s hip condition is set out in paragraphs 25 and 30 above.
In August 2015 Dr Waturuocha reported that this condition was “currently stable and stationary”.[80]
[80] Exhibit 1, T Documents, T38, page 208, Medical Certificate completed by Dr Waturuocha dated 13 August 2015.
The JCA reported that Mr Kertesz said he had:[81]
(a)not seen a specialist;
(b)he had undertaken physiotherapy but had not improved. There are no records of this treatment; and
(c)attended three sessions with the chiropractor but said his symptoms were exacerbated as a result.
[81] Exhibit 1, T Documents, T39, page 211-212, Job Capacity Assessment dated 23 November 2015.
The JCA concluded that with specialist assessment and treatment that Mr Kertesz’s symptoms may be further reduced.[82]
[82] Exhibit 1, T Documents, T39, page 212, Job Capacity Assessment dated 23 November 2015.
I note there is no further medical evidence available.
The Secretary submits that Mr Kertesz’s hip condition was not fully treated and not fully stabilised.[83] I agree with the Secretary.
[83] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 20 January 2017, para 62.
I find that there is insufficient evidence to determine whether Mr Kertesz’s hip condition is fully treated and fully stabilised. Therefore I am unable to assign an Impairment Rating for this condition.
CONCLUSION

As I have concluded that Mr Kertesz’s Impairments do not attract an Impairment Rating of 20 points during the Qualification Period it is unnecessary for me to consider whether Mr Kertesz had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period. I note that at the hearing Mr Kertesz provided information that, as at 27 February 2017, he had completed a program of support.[84] However, he accepted that as at the Qualification Period he had not completed a program of support.
[84] Exhibit 3, Information about participation in a program of support form completed by Roxanne Brouwer, HELP
Employment, dated 27 February 2017.
Mr Kertesz’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b).
The decision under review is affirmed.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg
..........................[Sgd]..............................................
Associate
Dated 5 April 2017

Date of hearing 3 March 2017

Applicant In person

Solicitors for the Secretary Department of Human Services

19 December 2013.

[2017] AATA 423

5 April 2017

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Statutory Interpretation

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Appeal

Date of hearing	3 March 2017
Applicant	In person
Solicitors for the Secretary	Department of Human Services