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

Kingswood and Secretary, Department of Social Services (Social services second review) [2021] AATA 166 (9 February 2021)
Division:GENERAL DIVISION
File Number: 2019/0029
Re:Cindy Kingswood
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member M East
Date:9 February 2021
Place:Perth

The decision of the authorised review officer dated 24 August 2018, as affirmed by the AAT1 on 17 December 2018, is affirmed.
...........[Sgd].............................................................
Member M East
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – whether the Applicant’s conditions were fully diagnosed, treated and stabilised – chronic pain/osteoarthritis, shoulder condition and other conditions – assigning impairment ratings – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed
LEGISLATION
Social Security Act 1991 (Cth) – ss 26, 94, 94(1)(a), 94(1)(b), 94(2), 94(3B), 94(3C), 94(5)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 6, 6(1), 6(3), 6(4), 6(4)(a), 6(4)(b), 6(5), 6(6), 10(5), 10(6), Table 1, Table 5
REASONS FOR DECISION
Member M East
9 February 2021
INTRODUCTION

The decision under review is a decision of the Social Services and Child Support Division (AAT1) of the Administrative Appeals Tribunal (the Tribunal), made on

17 December 2018,[1] that affirmed the decision of an authorised review officer (the ARO) of the Department of Human Services (Centrelink) to reject the Applicant’s claim for the Disability Support Pension (DSP).
[1] T2, pages 5-18.
ISSUE
The issue in this matter is whether the Applicant was qualified for the DSP on the day she lodged her claim or within 13 weeks thereafter.
The Tribunal finds that the date of claim is 12 October 2017, making the Qualification Period until 11 January 2018. In making this finding, the Tribunal relies on the ARO’s decision and the Department’s records.[2]
[2] T47, pages 235-242 and T35, pages 179-208.
The issue in this matter requires consideration of whether the criteria set out in s 94 of the Social Security Act 1991 (Cth) (the Act) are met; in particular:
(a)whether the Applicant had any physical, intellectual or psychiatric impairments;
(b)whether the Applicant’s impairments may be assigned an impairment rating of 20 points or more under the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables) and if so:
(i)whether those 20 impairment points are achieved under a single Impairment Table such that the Applicant has a severe impairment; or
(ii)whether those 20 impairment points are achieved under multiple Impairment Tables; and
(c)whether the Applicant has a continuing inability to work (CITW), which includes:
(i)that she is unable to work for 15 hours or more per week within the next two years, independently of a program of support; and
(ii)if, and only if, the Applicant does not have a severe impairment, has the Applicant participated in a program of support.
The Applicant must meet all of the above criteria in order to be qualified for the DSP.
FACTUAL BACKGROUND
The Tribunal agrees with the facts as outlined in the Respondent’s Statement of Facts and Contentions. These facts are as reproduced below:
3.1On 12 October 2017, the Applicant lodged a claim for DSP (T35 page 179 to 208).
3.2On the claim form the Applicant listed the following conditions “chronic low back pain, chronic neck pain, left shoulder rotator cuff injury, carpal tunnel syndrome, hypertension, gastro oesophageal reflux and ross river virus (2014)” (T35 page 204).
3.3On 19 October 2017, an assessment was undertaken by an Occupational Therapist as to the Applicant's eligibility for a disability support pension (T38 page 214 to 216). The recommendation made was that the Applicant was ineligible because none of the conditions were fully diagnosed, treated and stabilised.
3.4The Applicant requested a review of the decision.
3.5On 24 August 2018, a Departmental Authorised Review Officer (ARO) reviewed and affirmed the decision under review (T47 page 235 to 242). The ARO found that the only fully diagnosed, treated and stabilised condition was the hypertension and that it rated zero impairment points under Table 1.
3.6On 6 September 2018, the Applicant requested a further review by the AAT1 (T2).
3.7On 17 December 2018 the AAT1 reviewed and affirmed the decision under review. The AAT1 did not consider any of the medical conditions were fully diagnosed, fully treated and fully stabilised and therefore no impairment rating could be assigned (T2).
3.8On 3 January 2019, the Applicant lodged an Application for Review of the Decision to the AAT2 (T1).
MATERIAL BEFORE THE TRIBUNAL
The matter initially came before this Tribunal on 24 September 2019. At the outset of the hearing it became apparent that the Applicant had further medical evidence she wished to submit. As the hearing was by telephone, the hearing was adjourned so that the Applicant could provide the further medical evidence to the Respondent and the Tribunal.
When the matter resumed on 18 February 2020, the Applicant did not have a copy of any of the documents before her and did not know their whereabouts. The Tribunal requested the Respondent to send a further copy of all relevant documents to the Applicant by registered post. The Tribunal had no option other than to adjourn the hearing again.
The application was referred back to the conference registrar so that the parties could attempt to resolve the matter, but this attempt was unsuccessful. Accordingly, the matter came back for hearing on 12 August 2020.
The parties appeared by telephone at the hearing. Ms Kingswood was unrepresented. The Respondent was represented by Mr Calaby of Services Australia. The Applicant did not have her documents with her at this hearing either and did not seem to know where they were. Given the substantial delays that had already occurred and the Tribunal’s objective of resolving matters as quickly as is reasonably practicable, the Tribunal was not prepared to adjourn the hearing again. The hearing proceeded with the caveat of the possibility of another adjournment if it appeared that the parties were unable to properly present their cases without the Applicant having her documents with her.
The Tribunal had the following material before it:
·
Letter from Dr Uvelius, neurosurgery registrar, to Dr Malcolm Hodsdon, dated

13 November 2019 (Exhibit A1);
·
Letter from Dr Stephen Honeybul, consultant neurosurgeon, to Dr Hodsdon, dated

6 September 2019 (Exhibit A2);
·Ultrasound Report – Both Shoulders and Upper Arms, dated 30 April 2019 (Exhibit A3);
·Continence Management Plan, dated 22 August 2018 (Exhibit A4);
·Diagnostic Imaging Report – Left Foot, dated 24 October 2018 (Exhibit A5);
·Diagnostic Imaging Report – Ultrasound Chest Wall, dated 18 October 2018 (Exhibit A6);
·Diagnostic Medical Report – X-ray both hands, dated 18 September 2019 (Exhibit A7);
·Bundle of medical reports, received on 10 October 2019 (Exhibit A8);
·
Applicant's list of witnesses with attached medical report, received by post on

28 July 2020 (Exhibit A9);
·T-Documents, T1-T61, comprising 364 pages (Exhibit R1);
·Respondent’s Statements of Issues, Facts and Contentions (Exhibit R2); and
·Supplementary T-Documents (Exhibit R3).
The Applicant gave oral evidence and was cross-examined. The Applicant also called

Dr Hodsdon by telephone to give evidence and be cross-examined.
The Tribunal sought written closing submissions from the parties. The Tribunal received submissions from the Respondent on 3 September 2020 and submissions in reply from the Applicant on 5 October 2020.
LEGISLATIVE FRAMEWORK
The Tribunal is required to consider the provisions of the Act and the Social Security (Administration) Act 1999 (Cth).
The Minister has determined tables relating to the assessment of work‑related impairment for disability support pension pursuant to s 26 of the Act, namely, the Impairment Tables.
The Tribunal is also assisted by the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (POS Determination).
Section 94 of the Act provides:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
Impairment tables
Section 6(3) of the Impairment Tables provides that an impairment rating can only be assigned for an impairment that arises from a permanent condition.
Permanent is defined in s 6(4) of the Impairment Tables to have a specific meaning for the purposes of s 6(3). Section 6(4) provides that a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
(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.
Section 6(5) of the Impairment Tables provides that, in determining whether a condition is ‘fully diagnosed’ and ‘fully treated’ for the purposes of ss 6(4)(a) and (b), the following must be considered:
(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.
Section 6(6) of the Impairment Tables states that a condition is fully stabilised if:
(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)if 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.
When applying the Impairment Tables, ‘[t]he 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’ (s 6(1) of the Impairment Tables).
Continuing inability to work
Section 94(2) of the Act states:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008‑2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases—either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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.
(Original emphasis.)
Section 94(3B) of the Act states:
A person’s impairment is 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.
(Original emphasis.)
Section 94(5) of the Act states:
(5) In this section:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Section 94(3C) states:
A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(Original emphasis.)
Section 7 of the POS Determination states:
(1)A person has actively participated in a program of support if the person satisfies the following requirements:
(a)the person has:
(i) complied with the requirements of the program of support; and
(ii) participated in a program of support during the relevant period;
(b)subsection (2), (3), (4) or (5) is satisfied in relation to the person and the program of support;
(c)subsection (6) is satisfied in relation to the person and the program of support.
Requirements for period of participation in program of support
(2)This subsection is satisfied in relation to a person and a program of support if the person participated in the program of support for at least 18 months during the relevant period.
Note: A period during which a person does not participate in a program of support is not to be counted (see section 8).
(3)This subsection is satisfied in relation to a person and a program of support if:
(a)the duration of the program of support was less than 18 months; and
(b)the person completed the entire program during the relevant period.
(4)This subsection is satisfied in relation to a person and a program of support if:
(a)the program of support was terminated before the end of the relevant period; and
(b)the program of support was terminated because the person was unable, solely because of his or her impairment, to improve his or her capacity to prepare for, find or maintain work through continued participation in the program.
(5)This subsection is satisfied in relation to a person and a program of support if:
(a)at the end of the relevant period, the person is participating in the program of support; and
(b)the person is prevented, solely because of his or her impairment, from improving his or her capacity to prepare for, find or maintain work through continued participation in the program.
CONSIDERATION
Did the Applicant suffer from a physical, intellectual or psychiatric impairment or impairments?
The Respondent has conceded that at the date of claim, 12 October 2017, and during the Qualification Period, the Applicant suffered from impairments due to her various conditions.
Having reviewed the medical and other evidence presented, the Tribunal finds that the Applicant suffered from the following impairments:
·chronic pain/osteoarthritis of the lumbo-sacral spine;
·shoulder condition; and
·other conditions, being bladder incontinence, bilateral carpal tunnel syndrome, pain in her knees, gastro oesophageal reflux, Ross River virus, depression and neck pain.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Do the Applicant’s impairments receive an impairment rating of 20 points or more?
Chronic pain/osteoarthritis of the lumbo-sacral spine
The Respondent contends that these conditions are not fully treated and stabilised and therefore cannot be assigned an impairment rating.[3]
[3] R1, para 4.47.
The Respondent has accurately summarised the medical history with respect to this condition, which the Tribunal has reproduced below:
4.24On 16 December 2008, Professor Bryant Stokes reports that the Applicant had “a relatively long history of low back pain”, worse in the prior 12 months following a facet joint injection. He stated that the Applicant “may well in the long term require a fusion procedure” (in relation to which she would see

Mr Honeybul in six months to see if she had improved with a pool walking program and weight loss) (T6 page 96).
4.25On 19 May 2010, Dr Stephen Honeybul (neurosurgeon) stated that the Applicant had ongoing back, right posterior calf and right knee pain, which had improved gradually and there were no specific limitations, but she felt she got tired easily following prolonged standing. Dr Honeybul states the MRI scan confirmed degenerative changes affecting the lumbar spine, but that there were no indications for surgery. Dr Honeybul further stated that the Applicant's pain should be managed conservatively but someone should have a look at her knees with a view to osteoarthritis changes at some stage. Dr Honeybul stated that he had discharged the Applicant from the clinic (T9 page 99).
4.26A report of CT scan of the lumbar spine, dated 17 September 2014, stated there was moderate to severe degenerative spondylosis from L3 to S1 with:
L3/4 moderate to severe spinal stenosis (with moderate to severe bilateral hypertonic degenerative facet disease);
grade 1 anterolisthesis of L4 and L5 (with moderate to severe spinal stenosis and moderate to severe bilateral degenerative facet disease); and
severe bilateral hypertrophic degenerative facet disease (left greater than right) at L5/S1 and abutment (by disco-vertebral disease) of the S1 nerve roots (T10 page 100).
4.27A report of CT scan of the cervical spine dated 25 March 2015 indicated no abnormality (T11 page 101 to 102).
4.28Dr Chibuzor Wgwu [sic] reported on 2 May 2016 that the Applicant had experienced recurrent headaches and left neck pain since 9 November 2015 (T18 page 112).
4.29A report of a whole body scan with SPECT/CT, dated 8 June 2016, stated there was mild to moderate active degenerative arthropathy in the posterior margin of the left glenoid, activity in the right ninth and left seventh ribs and moderately active right L4/5 facet arthropathy and (only) mild degenerative end plat and facet changes elsewhere in the lumbar spine (T22 page 116 to 118).
4.30On 13 June 1016, Dr John Liddell stated that functional views of the cervical spine were unremarkable and the bone scan did not reveal any cervical active facet or (more accelerated) degenerative disc or end plate changes and noted lumbar changes. Dr Liddell stated consideration should be given to localised lumbar CT scan and follow-up chest x-ray. He stated that he had strongly encouraged the Applicant to consider hydrotherapy and/or swimming on a regular basis (T23 page 119).
4.31A referral from Dr Prempeh dated 15 December 2016, stated that the Applicant had suffered a traction and counter traction injury to the left side of the neck, and shoulder about a year ago. The doctor stated the Applicant had had numerous investigation and treatments without improvement.
4.32A report declared by Dr Jenkins on 11 April 2017 (T26 page 123 to 126), stated that the Applicant (following an acute injury on 9 November 2015) suffered from chronic pain and restriction of the neck and shoulder, caused by exacerbation of cervical spondylosis (with clinical signs of active facet joint arthropathy) and left gleno-humeral and acromio-clavicular arthritis and subsequently developed (typical) bilateral carpal tunnel syndrome (worse on the right). The Applicant had had an injection for the right carpal tunnel syndrome with some relief and had been referred for a further injection but would be better served by seeing an orthopaedic surgeon with a view to a release procedure. Dr Jenkins reported that that [sic] the Applicant had been appropriately referred to a pain specialist for the chronic neck and cervical spine conditions. Dr Jenkins also stated that the Applicant's condition had not had sufficient time to improve, had limited treatment to date and was likely to change appreciably in the coming 12 months (including possible deterioration). Dr Jenkins said that the prognosis for the left shoulder and neck condition was guarded.
4.33In a further report (in “report of worker condition not stabilised”) dated

11 April 2017, Dr Jenkins reported symptoms related to an injury on

9 November 2015 (at work). Dr Jenkins stated that the Applicant has no recollection in relation to the CT scan of the neck in March 2015. Dr Jenkins reported that the Applicant continued to experience mechanical neck and occipital pain and pain in the left shoulder and upper arm. Dr Jenkins stated that the Applicant said that she experienced marked numbness in the right radial hand and milder symptoms of numbness and pins in the volar and left thumb in January 2016 (when she returned to bus driving duties). It was also reported that the CT scan did not reveal significant findings. The Applicant had recently been referred for a second cortisone injection to the right carpal tunnel. It was reported that the Applicant suffered from chronic cervical facet joint symptoms, and chronic symptomatic left acromioclavicular and

gleno-humeral osteoarthritis. Dr Jenkins stated that there had been limited treatment for the left shoulder, cervical (spine) and wrist/hand conditions 9and [sic] that insufficient time had elapsed for improvement) (T27 page 12710136).
4.34Dr Holthouse reported on 11 April 2017 that there was “possibly disc change” at C5/6/7 on MRI scan (but no marked mass uptake on the previous bone scan). The doctor stated the Applicant's pain was probably from C6/7. The doctor stated C6 and C7 nerve root sleeve injections may lead to improvement. The doctor stated operative intervention would need to be reconsidered “if these do not work”.
4.35A medical certificate dated 20 September 2017 from Dr Hodsdon stated that the Applicant suffered from chronic pain with moderate (to) severe osteoarthritis of the lumbo-sacral spine. The Doctor stated the condition was permanent and that the prognosis was symptoms would affect work capacity for more for more [sic] than 24 months. The doctor stated the symptoms were chronic pain and stiffness (T32 page 142 to 143).
4.36The assessor for “assessment services recommendation for disability support pension” on 19 October 2017 noted the condition of “moderate severe osteoarthritis in lumbar spine” from the medical certificate by

Dr Hodsdon and recommended the condition be assessed as not fully diagnosed, treated and stabilised. The assessor said that there was no medical evidence, which confirmed specialist reviews or interventions, there was an absence of information regarding engagement in evidence-based treatment, including physiotherapy and pain management, and it was difficult to assess the current level of physical functioning as fully stabilised, as the Applicant was yet to undertake optimal treatment (T44). It is also noted that the assessor made the same recommendations in relation to the conditions of osteoarthritis in the shoulders, hips and neck and bilateral carpal tunnel syndrome.
4.37The office manager (Goldfields Physio), on 23 October 2017, listed 32 consultations from 12 November 2015 to 19 April 2016 and 4 from 21 February 2017 to 1 March 2017 (T2 page 11).
4.38Dr Louise Sparrow reported in medical certificates completed on

28 November 2018 and 24 October 2017 that the Applicant suffered from cervical and lumbar spine pain and dysfunction. Dr Sparrow stated that the date of onset was in 2006, Dr Sparrow also stated that the current symptoms were “pain, stiffness, multiple joints affected, constant pain” and that the prognosis for symptoms was “uncertain-likely permanent”. The doctor stated past treatment was injections and physiotherapy and current treatment was Lyrica, Naprosyn, analgesics, Panadol and exercises (T41 page 222).
4.39Dr John Prempeh reported in a medical certificate dated 7 March 2018 that the Applicant suffered from chronic lower back pain. The Doctor stated the date of onset was in 2010. The Doctor stated that the functional symptom was back pain with radiation down the legs. Neurosurgeons and physiotherapists had assessed the Applicant. She had received treatment with Naprosyn, Lyrica, Palexia and duloxetine (T43 page 249).
4.40Dr Timothy Keenan (orthopaedic consultant) reported on 31 May 2018 that the Applicant has “multiple problems and is really in the wars regard(ing) them” He reported that the Applicant suffered chronic back pain and had had this for many years with various modalities of treatment. The Doctor said the Applicant was past the stage where “we would be able to recommend anything in Kalgoorlie”. The Doctor stated that the Applicant should see a back specialist in Perth to see whether ongoing conservative treatment is required or anything else (T45 page 232 and 233).
4.41Dr Hodsdon reported in a medical certificate dated 8 October 2018 that the Applicant suffered from chronic low back pain with bilateral sciatica (and left shoulder rotator cuff syndrome). The doctor stated that the date of onset was 20018 [sic] and the condition was a temporary exacerbation of a permanent condition. Symptoms were estimated to affect work capacity for three to 12 months. The current symptoms were chronic low back pain, numbness and pain in the legs and reduced mobility. Dr Hodson [sic] reported that the Applicant had been referred on to SCGH (Sir Charles Gairdner Hospital) (T51 page 247 to 248).
4.42A report of Dr Graham dated 1 March 2018 reports that the Applicant's current degree of activity is variable, some mornings are good and he can get up and do what he wants and other mornings he has pain, and is swollen and stiff and he struggles (T14 page 214). He also reported some clear evidence of hypermobility in his hands.

At the hearing, the Applicant called Dr Hodsdon from the Boulder Medical Centre as her witness. Even though he was unaware that the Applicant intended to call him and he was between patients, Dr Hodsdon generously gave his time to the Tribunal.
Dr Hodsdon said the following:
Cindy does have quite a few health related issues, but the one that’s giving her the most grief is her low back pain. It’s been a longstanding issue and, you know, if you were able to see her physically she walks with a very stooped posture, it does cause a lot of inconvenience, a lot of pain, a lot of discomfort and is quite restrictive in the things that she can do. … Well, she’s on a lot of pain medication. Yes, so it’s just her general quality of life and activities, and activities of daily living are impacted. She hasn’t been able to get gainful employment for quite a long time, that I’m aware of. I’m not fully cognisant of all her employment history, but it is having a major impact on her quality of life.[4]
[4] Transcript, pages 6-7.
Dr Hodsdon said he had been treating the Applicant for approximately 20 years.[5] He said she has a chronic, long-standing problem with her back. He referred to her L4-5 decompressive lumbar laminectomy which was done in July 2019 by Dr Honeybul:
I’ve got a letter here which is dated September where he says that it’s now two months following the surgery. She was still complaining of bilateral buttock pain and groin pain. He said the actual decompression procedure was performed successfully, and he did say he was going to repeat the MRI and just I guess check on the progress. He says she certainly has got widespread arthritic changes and her lumbar spine shows very severe facet joint arthropathy. So, yes, it’s just been this longstanding problem with her lower back in particular, but as I said, she does have a lot of other health problems which don’t help.[6]
[5] Transcript, page 7.
[6] Transcript, page 7.
Referring to a report of Sir Charles Gairdner Hospital dated 18 December 2019, Dr Hodsdon said the Applicant experiences multiple areas of arthritic type pain, including in her back, knees, hands and shoulders. He said that according to the 18 December 2019 report, the MRI showed good decompression of the L4-5 with significant joint arthropathy. He further stated:
Also talked about bilateral hip pain, then whether that needed to be followed up with someone, but they did say that they had little more to offer from a neurosurgical viewpoint, basically being discharged from Dr Honeybul. That is actually from

Mr Stephen Honeybul, that letter dated 18 December, so I don’t think surgery’s – any more surgery’s an option. It’s just a matter of trying to find ways to control the pain, and that’s basically what I’ve been doing is just providing prescriptions for various types of pain relief.[7]
[7] Transcript, page 8
The Tribunal had before it the report from Dr Uvelius, neurosurgery registrar to Mr Honeybul, dated 13 November 2019 and addressed to Dr Hodsdon.[8] Dr Uvelius refers to the Applicant experiencing ‘poor progress after surgery’. He said:
She is still in severe pain. The pain seems to be a general problem in the entire body though, she is mainly complaining about a radicular pain in the right leg along the L5 dermatome. She is having the same issues on the left side though to a lesser degree. There is sensory loss but no dysfunction and power in the lower extremities is 5/5. She is also experiencing a lot of symptoms from her shoulder which lowers her quality of life at the moment.
MRI shows that there is some compression of the L5 root on the right side though nothing on the left side which makes it more difficult to determine if it is a severe pain or not because that is at the level of previous laminectomy at L4/5 seems adequately decompressed. We will move ahead and order a nerve sleeve injection against the compressed level to see if this is something that is amenable by surgery. We will see her back after this injection.
[8] A1.
Under cross-examination Dr Hodsdon was asked to explain why the Applicant was referred for specialist intervention in October 2018. He responded:
The fact that she had sciatica which implies nerve involvement. That’s why she ended up having that decompression surgery. She had what we call radiculopathy, and the nerves come out of the lower back or the spine and then link up to become the sciatic nerve, which then runs down through the buttock pelvic area and then into the leg. So they often get what we call referred pain and the problem is usually pressure on the nerve root, not necessarily a problem in the leg itself.[9]
[9] Transcript, page 9.
In response to the question of whether the Applicant required specialist referral in order to treat her condition of chronic lower back pain with bilateral sciatica, on 8 October 2018

Dr Hodsdon responded: ‘Yes, but then they then did the surgery, so it seemed like a justifiable referral’.[10]
[10] Transcript, page 9.
The Tribunal was in receipt of the Applicant’s medical records dating back to 2003. These records include both notes from her general practitioner and specialist reports from

Mr Honeybul, Dr Jenkins, Dr Keenan, Dr Prempeh, Dr Sparrow, Dr Holthouse, Dr Liddell and Professor Bryant Stokes.
The Tribunal accepts that the Applicant has had chronic lower back pain dating back many years, which is evidenced by the volume of medical reports provided and the medical treatment she has received. The latest treatment the Tribunal understands the Applicant to have received was in November 2019 when she had the nerve sleeve injection.[11] She also had further specialist treatment in the form of surgery during 2018 and 2019.
[11] Transcript, page 21.
For the chronic pain/osteoarthritis of the lumbo-sacral spine condition to be assigned an impairment rating it needs to be fully diagnosed, treated and stabilised as at the date of the Applicant’s claim or within the Qualification Period.
As the Applicant was still receiving specialist treatment in 2019, well after the Qualification Period, the Tribunal is unable to find that the condition of osteoarthritis of the lumbo-sacral spine/chronic lower back pain was fully treated and stabilised during the Qualification Period.
Accordingly, this condition is not permanent and the Tribunal is unable to assign an impairment rating.
Shoulder Condition
At the hearing before the AAT1 the Applicant gave evidence that her left shoulder has the next greatest impact on her and that she has mild pain in the right shoulder.[12]
[12] T2, page 12.
In cross-examination the Applicant said that she had an injury at work and hurt her shoulder and neck. Mr Calaby referred to a report from Dr Jenkins where he recommended that she consult an orthopaedic surgeon with respect to her left shoulder and her right carpal tunnel syndrome.[13]
[13] Transcript, pages 18-19 and T26, page 123.
Dr Jenkins reviewed the Applicant in April 2017 in the context of a Workcover workers’ compensation claim. He stated that she was suffering from:
symptomatically exacerbated AC and glenohumeral osteoarthritis, noting that she has a restriction of the “hand behind back” movement and positive AC joint signs. Her shoulder condition may be improved by imaging-guided corticosteroid injections to either joint in the shoulder. If this approach coupled with physiotherapy did not improve her condition, consideration may eventually be given to definitive surgery most likely with left shoulder arthroscopy, subacromial decompression and possibly an AC resection arthroplasty.[14]
[14] T26, page 124.
The Applicant also saw Dr Sparrow, who produced a Centrelink medical certificate dated 28 November 2017.[15] In her comments, she states that the Applicant may require referral to the public hospital surgery clinic.
[15] T41, page 222
In cross-examination the Applicant said she was not referred to the shoulder clinic, although she had three injections into her shoulder.[16] This treatment appears to have been required as a result of a workers’ compensation claim. The Applicant stated she had a ‘bully’ of a boss and signed some paperwork and was then put ‘off the list’.
[16] Transcript, page 24
The Applicant referred to being seen by Dr Keenan in May 2018.[17] Dr Keenan noted the Applicant’s ‘multiple problems’ with which she was ‘really in the wars’. He said with respect to her shoulder that she has:
signs and symptoms of a rotator cuff problem and she has had a cortisone injection here with no help. Again I think she is beyond anything we would be able to offer her here if the cortisone injection has not improved this and again she would be best seen in Perth.
[17] Transcript, page 25 and T45, page 232.
He said in light of her multiple problems, she should have her back treated first and then have her shoulder ‘sorted out’. He also said that consideration can then be given as to whether she is eligible for a disability support pension.
In her oral evidence the Applicant said she had since had an MRI done on her shoulder and was due to see the specialist, Dr Falconer that week.[18] It was clarified that that appointment was scheduled on 13 August 2020, which is well outside the Qualification Period.
[18] Transcript, page 25.
Again, the Tribunal accepts that the Applicant suffers from significant pain and disability in her shoulder. However, the medical evidence is clear that even at the date of the hearing, treatment for her shoulder condition had not been fully completed.
The Tribunal finds that the Applicant’s condition of shoulder pain in the left shoulder and to a lesser extent, the right shoulder, at the date of claim and during the Qualification Period was not fully treated and stabilised. Accordingly, the Applicant’s shoulder condition is not permanent, and the Tribunal is unable to assign an impairment rating.
Neck pain
As noted above, Dr Jenkins reviewed the Applicant in the context of a workers’ compensation claim for a work-related injury sustained on 9 November 2015, where force was applied to her cervical spine, resulting in chronic pain and a degree of restriction in her neck (and left shoulder). Dr Jenkins stated that in his opinion, this was caused by an exacerbation of cervical spondylosis and left glenohumeral and AC joint osteoarthritis.[19]
[19] T26, page 123.
Dr Jenkins stated that the Applicant has been referred to a pain specialist for injections with respect to the cervical spine (neck). He also stated that she was not in need of physiotherapy at the time but remained open to it in the future.
In cross-examination the Applicant stated that she did not have the injections because the insurer would not pay.[20]
[20] Transcript, page 24.
It appears that the Applicant has not completed any of the recommended treatment for her neck/cervical spine. Whilst the insurer may have been unwilling to fund these treatments (a point which the Tribunal is unable to be sure of), the fact remains that the recommended treatment has not occurred. Therefore, the Applicant’s neck condition cannot be defined as fully treated and stabilised.
Accordingly, the condition cannot be regarded as permanent and the Tribunal is unable to assign an impairment rating.
Carpal tunnel syndrome
This condition also appears to have arisen from a workers’ compensation injury. Dr Jenkins, in his report dated 11 April 2017,[21] diagnosed the Applicant’s carpal tunnel syndrome as a secondary consequence of the workplace injury, in that it was caused by the modified duties she was required to do in late 2015. Dr Jenkins said she had an injection to her right carpal tunnel and had been referred for a further injection. He also said that the Applicant would be better served by consulting an orthopaedic surgeon with a view to undertaking a carpal tunnel release procedure.
[21] T26, page 123.
The Applicant gave evidence at the hearing that she had the left carpal tunnel release in early 2018 but had not had the right carpal tunnel release yet.[22] The Tribunal accepts the Applicant’s evidence that she had surgery for the left carpal tunnel release. The only contemporaneous medical evidence appears in the notes of Dr Prempeh on 3 July 2017 which states ‘[g]oing to have her Carpal Tunnel done in the Hospital’.[23]
[22] Transcript, page 19.
[23] A8.
The evidence is clear however that the Applicant has not had the surgery for a right carpal tunnel release.
If the Tribunal were to accept that the surgery for the left hand had been undertaken, it is still without any medical evidence to support a contention that the condition for the left hand has been fully treated and stabilised. Clearly, without the surgery on the right hand the condition is unable to be regarded as fully treated.
Accordingly, the Tribunal finds that the condition of bilateral carpal tunnel syndrome has not been fully treated and stabilised at the date of the application and during the Qualification Period. Therefore, the condition is unable to be regarded as permanent and the Tribunal is unable to assign a rating.
Mental health condition
The Applicant consulted with Dr Prempeh who on 25 July 2017 noted that the Applicant wanted a referral to a psychologist.[24] In her oral evidence the Applicant said she was being bullied at work by her supervisor.[25] Dr Prempeh’s notes from 3 July 2017 also records a complaint of bullying at work.
[24] A8.
[25] Transcript, page 26.
When questioned, the Applicant said she went to see a psychologist: ‘Veronica someone and she reckoned that I had schizophrenia or some bulldust’.[26]
[26] Transcript, page 27.
It appears the Applicant was referring to Veronica Chong, a mental health professional (social worker). Ms Chong provided a report dated 1 April 2015.[27] In that report she said the Applicant had presented with depression and panic disorders which were largely precipitated by the stressors in her work environment and post traumatic experiences from her abusive partners.
[27] T13, page 104.
The Applicant said that she was seeing another ‘doctor, a specialist or whatever’ but she did not know what his name was. She also said that a lady was helping her but not listening to what she wanted so she did not go back there either.[28]
[28] Transcript, pages 27-28.
Even though the Applicant appears to have obtained a diagnosis by Ms Chong in 2015, Table 5 (Mental Health Function) of the Impairment Tables states that ‘[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)’.
Dr Sparrow also diagnosed the Applicant with depression, anxiety and major mood disorder and indicated a planned referral to a psychologist.[29]
[29] T41, page 222.
The Applicant has not been diagnosed with a mental health condition by a psychiatrist or a clinical psychologist and therefore the Tribunal is unable to find the condition as diagnosed at the date of application or the Qualification Period.
Other conditions
Hypertension
The Respondent has conceded[30] and the Tribunal accepts that the Applicant has a condition of hypertension which is fully diagnosed, treated and stabilised.
[30] Respondent’s Supplementary Submissions dated 3 September 2020, paragraph 16.
However, as noted in her general practitioner reports, the condition at 18 April 2016 is reported as being well controlled with medication.[31]
[31] A8.
There is no evidence before the Tribunal of any functional impairment as a result of this condition.
In applying Table 1 of the Impairment Tables, the Tribunal assigns an impairment rating of zero points.
Incontinence
The Applicant has had a continence assessment, however in her evidence at the hearing the Applicant said she has been referred to a urologist for treatment and review.
The Tribunal therefore finds that the condition of incontinence is not fully treated and stabilised and is therefore not permanent. The Tribunal is unable to apply an impairment rating to this condition.
Gastro oesophageal reflux and ross river virus
The Tribunal notes there is some reference to the Applicant suffering from reflux and also having tested positive to Ross River virus.
For completeness the Tribunal has considered these two conditions, which are listed on the Applicant’s claim form.
However, the Tribunal is not satisfied there is sufficient medical or other evidence from the Applicant regarding these conditions to determine whether they are fully diagnosed, treated and stabilised.
The Tribunal finds that these conditions are not permanent and therefore are unable to be assigned a rating.
CONCLUSION
The Tribunal finds that the Applicant has impairments for the purposes of s 94(1)(a) of the Act, namely, chronic lower back pain, neck pain, left shoulder pain, carpal tunnel syndrome, mental health condition, hypertension, incontinence issues, gastro oesophageal reflux and Ross River virus.
The Tribunal finds the condition of hypertension to be fully diagnosed, treated and stabilised and therefore finds it to be permanent. In assigning an impairment rating, the Tribunal assigns zero points under Table 1.
The Tribunal finds the conditions of chronic lower back pain, neck pain, left shoulder pain, carpal tunnel syndrome, incontinence issues, gastro oesophageal reflux and Ross River virus have not been fully treated and stabilised at the date of the claim and during the Qualification Period.
The Tribunal finds that the mental health condition was not diagnosed at the date of claim or during the qualification period.
Therefore, the Tribunal finds those conditions are not permanent. As they are not permanent, the Applicant does not satisfy s 94(1)(b) of the Act.
The Applicant consequently does not qualify for a DSP as the Applicant must meet all of the criteria required in s 94 of the Act.
DECISION
The decision of the ARO dated 24 August 2018, as affirmed by the AAT1 on 17 December 2018, is affirmed.

I certify that the preceding 88 (eighty -eight) paragraphs are a true copy of the reasons for the decision herein of Member M East

..........[Sgd]..............................................................
Associate
Dated: 9 February 2021

Date of hearing: 12 August 2020

Applicant: By telephone

Representative for the Respondent: Mr R Calaby, Services Australia

[2021] AATA 166

9 February 2021

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Appeal

Date of hearing:	12 August 2020
Applicant:	By telephone
Representative for the Respondent:	Mr R Calaby, Services Australia