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

[2018] AATA 3366

Klinger and Secretary, Department of Social Services (Social services second review) [2018] AATA 3366 (27 August 2018)

Division:GENERAL DIVISION

File Number:           2017/5779

Re:Timothy Klinger

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member C Edwardes

Date:27 August 2018

Place:Perth

The decision under review is affirmed.

..............[sgd]..........................................................

Member C Edwardes

CATCHWORDS

Social security – disability support pension – medical conditions – questionable written evidence – impairment tables – continuing inability to work rating – participation in program of support – decision under review affirmed

LEGISLATION

Social Security Act 1991 (Cth) – s 94, s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(2), s 94(3B), s 94(3C)

Social Security Administration Act 1999 (Cth) – s 179, Schedule 2 Clause 4(1)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – s 3, ss 6(1), ss 6(2), ss 6(3), ss 6(4), ss 6(5), ss 6(6), ss 6(7), s 7, ss 7(1), ss 7(2), ss 8(1), s 9, s 10, s 11, para 11(1)(c)

Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 7(1), ss 7(2)

CASES

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 

Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations (2007) 158 FCR 252

Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS

The Guide to Social Security Law

REASONS FOR DECISION

Member C Edwardes

27 August 2018

THE APPLICATION

1. This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1)  that affirmed  the decision of an authorised review officer of the Department of Human Services (the Department).  This decision was made on 6 September 2017, and rejected the Applicant’s claim for Disability Support Pension (DSP) (T2 3-5)(R1).

   INTRODUCTION

2. On 13 September 2016, the Applicant lodged a claim for DSP stating that he suffered from conditions emanating from “stroke like symptoms.” The Applicant submitted that these symptoms affected both sides of his body and resulting from the removal of a brain tumour. (T15 116)(R1)

3. The Applicant’s claim was rejected by an officer of Centrelink, (a part of the Department) on 7 December 2016.  This rejection was on the basis that the Applicant failed to attain an “…impairment rating of 20 points or more under the Impairment Tables...” (T23 140-141) (R1).

4. The Applicant requested a review of this decision. A review was undertaken by an Authorised Review Officer (ARO) on 27 April 2017 (T35 167-171)(R1).

5. The ARO advised the Applicant of the following findings:

   ·Your conditions of two meningiomas, osteoarthritis of the right hip and C6/7 disc prolapse with C7 nerve root impingement are not accepted as being permanent as they have not been fully treated and stabilised.

   ·You do not have an impairment rating of 20 points or more.

   ·You do not have a continuing inability to work 15 hours per week or more because of your impairment. (T35 168)(R1)

6. The Applicant lodged an application with the AAT1 on 23 May 2017.

7. The AAT1 affirmed the ARO’s decision on 6 September 2017. The AAT1 found that the Applicant met the qualifications for DSP under section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act), however, was not satisfied that the Applicant’s conditions were fully treated and stabilised as at the date that he made his claim on 13 September 2016.  As such, no impairment ratings could be assigned to the Applicant’s condition (T2 2-5)(R1).

8. The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 27 September 2017 for a review of the AAT1 decision dated 6 September 2017 (T1 1-2)(R1). The application for review stated:

   I believe that not all the evidence available at the hearing was considered ie [sic] I have documentation that was available during the hearing, which clearly states that I have a permanent disability. I also believe that rejection of the claim was based on the belief that I required on going [sic] treatment. Whether my brain damage is classified as a stroke (I believe it was a stroke) or not [sic] the damage is permanent. I am referring to my brain surgery July 31^st 2015. All secondary medical investigations were not related to my initial brain damage from surgery on 31^st July 2015 (T1 2)(R1).

9. The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999.

10. The matter was heard in Perth on 7 August 2018. The Applicant appeared in person and the Respondent was represented by Ms Jones-Bolla from Sparke Helmore.

    RELEVANT LEGISLATION

11. The relevant provisions governing eligibility for DSP are contained in the Act and the Social Security (Administration) Act 1999 (the Administration Act).

12. Section 94 of the Act provides the criteria for DSP, relevantly:

    1A 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)     person has a continuing inability to work;

    (ii)    …

    Did the Applicant have Impairment ratings of 20 points or more under the Impairment Tables? – Section 94(1)(b) of the Act

13. Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”

14. In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:

    5… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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 Determination.

    6The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.

15. Subsections 6(5), 6(6), and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsections 6(5), 6(6) and 6(7) fall under the heading “Applying the Tables.” Subsection 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.

16. Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that “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.” 

    Did the Applicant have a continuing inability to work? – Section 94(1)(c) of the Act

17. As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:

    2A 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.

    (Emphasis added)

18. ‘Severe impairment’ is defined in subsection 94(3B) of the Act:

    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)

19. Subsection 94(3C) of the Act states that 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.

20. Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP. 

    Qualification Period

21. Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for a DSP claim. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was made, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 13 September 2016 to 13 December 2016 inclusive, and is known as the “Qualification Period.”

22. For a claim to be successful, a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].

23. The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Drake and Minister for Immigration and Ethnic Affairs [1979] AATA 179).

    ISSUES

24. The key issue for the Tribunal to consider is whether the Applicant was qualified for DSP during the qualification period for the purposes of section 94(1) of the Act.

25. This requires consideration of whether at the time of the qualification period:

    (a)the Applicant had any physical, intellectual or psychiatric impairment;

    (b)if so, whether these impairments attracted ratings of at least 20 points under the Impairment Tables; and

    (c)if so, whether the Applicant had a ‘continuing inability to work’ as defined in subsection 94(2) of the Act.

    EVIDENCE

26. As mentioned above, the matter was heard in Perth on 7 August 2018. The Applicant appeared in person. The Respondent was represented by Ms Jones-Bolla from Sparke Helmore.

27. The Tribunal would like to thank all parties for the assistance they provided during this hearing.

28. The Tribunal had the following evidence before it:

    ·Exhibit A1 – Submission dated 22 November 2018

    ·Exhibit A2 – Other evidence received 22 March 2018

    ·Exhibit A3 – Other evidence received 18 January 2018

    ·Exhibit R1 – T documents (T1-44 pp1-247 and ST1-ST4 pp 247-329)

    ·Exhibit R2 – Secretary’s Statement of Facts, Issues and Contentions (SOFIC).

    ·Exhibit R3 – Secretary’s list of Authorities dated 15 February 2018.

29. The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.

    The hearing

30. The Respondent opened by relying on its SOFIC, and confirmed that the Qualification Period for this matter was 13 September 2016 to 13 December 2016.

31. The Applicant made the following opening statements:

    ·He had a stroke and that impacted significantly on his brain functions.

    ·When he was released from hospital in 2015 his condition was fully diagnosed, fully treated, and fully stabilised (FDTS).

    ·He did not understand the “points system.”

    ·He was currently in receipt of a DSP.

    ·He did not accept that he could work (The Tribunal notes that medical advice indicates the Applicant could indeed work.)

32. Under cross-examination by Ms Jones-Bolla the Applicant gave the following evidence:

    ·He confirmed he had 2 brain tumours, the subject of surgery in 2015.

    ·He accepted that from the 11 August 2015 to 16 September 2015, he was in receipt of rehabilitation.

    ·He accepted that his functionality had demonstrated steady improvement as described at (T9 66)(R1)

    ·He was shown a letter from the Community Rehabilitation Outpatient Clinic, dated 18 November 2016  where he was queried about the prescription of his medication.  He accepted that his medication as at 18 November 2016 was still the subject of trial (ST2 313)(R1).

    ·He was directed to his Job Capacity Assessment (JCA) Report dated 29 November 2016 where he indicated that there were some improvements in his function since his operation.  The Applicant stated that he would receive further treatment at a later date (T21 2)(R1).

    ·He agreed with an assessment of a rehabilitation physician dated 5 February 2016, that he was functionally independent (T12 83)(R1).

    ·He totally disputed the content of a medical referral at (T20 128)(R1) and stated that it had been written in a positive light so that he could obtain his driver’s licence.

    ·He stated that he did not have temporal epilepsy.

    ·He stated that his dexterity had been maintained.

    ·He was referred to a letter written by a rehabilitation physician, dated 1 September 2017 (T38 177-8)(R1) . He stated that this document was not a medical report and that it was constructed by him on the basis of self-assessment.

    CONSIDERATION

33. On the basis of the evidence before the Tribunal, the Tribunal notes that the Applicant filed an application for DSP on 13 September 2016. The Tribunal accepts that the Qualification Period for this matter is from 13 September 2016 to 13 December 2016.

34. The Applicant was referred to a letter at reference point ‘T38.’ This letter was dated 1 September 2017 and described the Applicant’s impairment ratings. The letter did not contain a personal signature, however was signed off as “Dr Tang, Rehabilitation Physician…”   The Tribunal is aware from the Applicant’s submissions at the hearing, that this letter was not drafted by a rehabilitation physician, but by the Applicant himself.  The Tribunal is therefore concerned about the reliability of the Applicant’s evidence.    

35. The Tribunal will now consider all the evidence before it.   

    Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments – section 94(1)(a) of the Act

36. On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers a range of medical conditions – “Meningioma, Brain bleed, Upper limb, Lower limb, Hearing, Osteoarthritis of the Right hip, and C6/7 prolapse and C7 nerve root impingement.” (R2 2-21)

37. There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from these conditions.

38. The Tribunal finds therefore that the Applicant satisfies subsection 94(1)(a) of the Act.

    Whether the Applicant’s impairments attract an impairment rating of 20 points or more – section 94(1)(b) of the Act

    Meningioma

39. Commentary in the AAT1 decision states:

    11Mr Klinger has received surgery and had problems with the effects of several mengianomas. On his evidence, the conditions have caused him functional problems. There is other evidence from the rehabilitation specialist, Dr Tang, to support his evidence.

    …

    14The evidence is that Mr Klinger, at the time of his claim, was undergoing rehabilitation. There is evidence from a rehabilitation physician, being a report dated 18 November 2016 that appears in the documentary evidence, that refers to the nature of treatment and rehabilitation at that point in time. There was clearly ongoing treatment and referrals were current at that time. This was after the date of his claim. Also relevant is that the Tribunal heard evidence from Mr Klinger that he required further surgery during 2017 (T2 4)(R1).

40. AAT1 determined on the evidence before it:

    15In such circumstances, even though he clearly does suffer a condition that has been fully diagnosed, it could not be accepted as fully treated and stabilised as at the date that he made his claim on 13 September 2016. This is because there was on-going treatment of a significant nature after that date. It would still appear to be the case, although the Tribunal makes no specific finding about the issues of treatment, stabilisation and permanency as at the date of the hearing.

    16As the condition was not fully treated and stabilised at the date of the claim (and clearly also not within the 13 weeks thereafter), it cannot be accepted as permanent for the purposes of the Impairment Tables, and so an impairment rating cannot be assigned. (T2 5)(R1).

41. The Tribunal notes a letter written by a consultant neurologist, dated 16 February 2017.  This letter states:  “I note that he [the Applicant] had an assessment with Dr Fletcher.… where Dr Fletcher recorded that Mr Klinger had significant cognitive difficulties and increased distractibility… I would advise you to refer him to a Rehabilitation Physician…” (T27 1)(R1).

42. On the 2 March 2017 a medical doctor’s letter to the Applicant’s rehabilitation physician stated – “He would like to drive again and appears to have made good recovery from his surgery. He has had occasional Déjà vu episodes which has been interpreted as being due to temporal lobe epilepsy. This is now well controlled with Pregabalin 50 mg nocte” (T30 156)(R1). 

43. The Tribunal notes the ARO report of 27 April 2017 – “Regarding your two meningiomas, …Medical evidence verifies you have had surgical intervention and you are continuing to attend rehabilitation” (T35 169)(R1).

44. The Tribunal notes a report written by the Applicant’s rehabilitation physician dated 5 September 2017.  This report states: “…During rehabilitation, he reported feeling [sic] of altered sensation in the right arm and leg, for which pregabalin [sic] was started…There were also cognitive deficits. Mr Klinger had Rehabilitation in the Home [sic] and subsequently rehabilitation at Community Rehabilitation [sic]” (T40 181)(R1)

1. The Tribunal notes that all the medical reports in paragraphs 41 to 44 of this decision indicate that the Applicant received treatments outside of the qualification period. The Tribunal therefore determines that whilst the Applicant’s medical condition of meningioma was fully diagnosed, there is no evidence during the qualification period to indicate that this was fully treated and stabilised.

2. The Secretary makes the point – “that the evidence suggests that the Applicant’s condition was not fully treated and stabilised during the qualification period” (R2 9).

3. Under cross-examination the Applicant conceded that his medication was still being varied and was subject to ongoing rehabilitation.

4. The Tribunal’s view on the evidence before it is that the Applicant’s medical condition of meningioma was not fully treated or fully stabilised (FTS).  An impairment rating therefore cannot be assigned to any impairment resulting from this condition.  

   Post-operative brain bleed 

5. The Applicant has reported that post-operatively he suffered a brain bleed (T42 215)(R1).  The Tribunal notes that a CT scan was performed post-operatively and identified a mild increase in blood with oedema (T6 56)(R1) and (T9 64)(R1).  The Tribunal agrees with the Secretary’s contentions that the brain bleed was fully diagnosed at the date of the Applicant’s claim.  The Tribunal finds however, that there is insufficient evidence before it to conclude that the condition was fully treated or fully stabilised during the qualification period of 13 September 2016 to 13 December 2016. 

6. An impairment rating cannot be assigned to this condition as it was not FTS during the qualification period.

   Brain function

7. The Secretary argues that this condition generates an impairment rating of 5 points under Table 7.  The Secretary argues:  

   … that the applicant’s condition results in a mild functional impairment of brain function. The Secretary contends that there is insufficient evidence of a higher functional impact within the qualification period. The evidence from the qualification period demonstrates the Applicant has some difficulty with memory, concentration, attention and problem solving (as discussed at paragraph [45.1] of these submissions) and is able to complete most day to day activities without assistance (R2 11).

8. The Tribunal notes a report dated 5 February 2016, and written by Dr Tang.  This letter largely restated aspects of a discharge report at Fiona Stanley Hospital in relation to the Applicant's cognitive impairment. Dr Tang noted that the Applicant’s cognitive impairments were potentially impacting on the Applicant's higher level task completion (T12 82)(R1). Dr Tang also said, while no detailed cognitive assessment was undertaken, that the Applicant was alert and oriented, but with some evidence of impaired recall (T12 83)(R1).   

9. The Tribunal notes a report dated 5 September 2017 that the Applicant scored in the moderately impaired range on the Rivermead Behavioural Memory Test (RBMT) and that this finding had remained unchanged from about 12 months prior (T40 181)(R1).

10. The Tribunal finds that there is insufficient evidence before it to conclude that the Applicant’s conditions relating to his brain function were FTS during the qualification period of 13 September 2016 to 13 December 2016.  Accordingly, an impairment rating cannot be assigned to any impairment resulting from this condition.

    Upper limb function

11. The Tribunal notes the Secretary’s contentions that the Applicant’s impairment attracts zero points under Table 2 of the Impairment Tables.  The Tribunal notes the following commentary in relation to the Applicant’s upper limb function as at 16 September 2015:

    Ongoing numbness in his right upper limb and increased difficulty using his left - though these are not noted to have a significant impact currently on his independent ability to complete self-care and kitchen based tasks... He does continue to present with handwriting difficulties (effortful but legible). On formal assessment he presented with present but diminished sensation, with absent sharp/blunt discrimination below the elbow...

    ...Functionally, reduced dexterity (left worse than right); and co­ ordination (left=right slowed, with dysemtria on right) bilaterally were noted to impact on his speed and efficiency of limb and digit use during motor tasks, though he remained functional with hand/limb use. Improvement in this area (UL use) have been noted during impairment based tasks such as bead threading, screwing and unscrewing nuts and bolts, and functional tasks involving buttons and zips - with improved speed and accuracy (Mr Klinger is able to complete all activities, with no evidence of dropping items or failed manipulation of them.)

12. The Tribunal notes the Secretary’s further contentions:

    47.2. The Job Capacity Assessor noted on 3 March 2016 that the Applicant reports weakness in his left arm, that he can't sustain a grip, type or play guitar. He also experiences numbness with pins and needles in his right arm, however the JCA notes that activities of daily living are unaffected (T14/85-86).

    47.3. Dr Tang reported on 5 February 2017 noted that the Applicant has difficulty using the left upper limb with reduced dexterity and coordination but that functionally the Applicant is independent with activities of daily living and does domestic duties including cooking and child minding (T12/82-83).

    47.4. Dr Tang reported on 5 September 2017 that the Applicant's upper limb strength tests were similar to 12 months prior. The Applicant had to compensate with left using elevated shoulder and elbow position and over pronated forearm position (T40/181).

13. From all the information available, the Tribunal finds that there is insufficient evidence before it to conclude that the Applicant’s conditions relating to his upper limb function were FTS during the qualification period of 13 September 2016 to 13 December 2016.  Accordingly, an impairment rating cannot be assigned to any impairment resulting from this condition.

    Lower limb function

14. The Secretary contends:

    …that the Applicant’s impairment attracts five points under Table 3 of the Impairment Tables for lower limb function because:

    49.1.A report from the Perth Radiological Clinic to Dr Buters dated 9 March 2016 noted the Applicant’s description of a burning sensation over the right plantar foot but noted that no cause for the symptoms could be identified (T22/135).

    49.2.Dr Tang’s report of 5 February 2016 noted the Applicant was unable to tandem walk (T12/83).

    49.3.The JCA noted on 16 March 2016 that the Applicant had reported left lower limb weakness and left lower hip muscle tightness but that these impairments do not affect his ability to complete activities of daily living (T14/-86). [sic]

    49.4.Dr Tang noted in a report dated 18 November 2016 that the Applicant suffers from pins and needles over the bottom of his right foot with pain shooting upwards (ST2/312-313).

    49.5.Dr Buters noted in a report dated 22 November 2016 in support of the Applicant’s application for a driver’s license, that his gait is slowly improving, his limb power is good and he is not impaired (T20/128-129).

    49.6.Dr Tang’s latest report dated 5 September 2016 reports the Applicant was observed walking 70 metres unaided and up and down three steps with the use of a handrail. He also reported that he heavily leans on the trolley for support to get from the shops to the car (T40/182).

15. The Tribunal accepts that the Applicant’s condition relating to his lower limb was FDTS at the time of the qualification period (13 September 2016 to 13 December 2016). An impairment rating of five points under table 3 is therefore assigned to this impairment.

    Hearing function

16. The Secretary contends:

    …that the Applicant’s impairment attracts zero points under Table 11 of the Impairment Tables for hearing function. The Applicant has reported reduced hearing in his right ear (ST2/316) ringing and bilateral tinnitus in his ears (T40/182). However, the Secretary contends that there is no evidence these conditions cause the Applicant any impairment. There is no evidence that he is unable to hear conversation at average volume in a room with background noise at average volume, nor evidence that he has to increase the volume of the television to a greater  extent than others. There is no evidence that the applicant has a hearing aid or cochlear implant (R2 13).

17. Whilst the Tribunal notes in the Applicant’s submission (A1) of 22 November 2017 that he had surgery to his ear, there is no evidence before the Tribunal to determine that the Applicant received any further assessments or ongoing treatments relating to his hearing function.  Moreover, there is no further evidence before the Tribunal proving that the Applicant’s reported reduced hearing in his right ear has caused the Applicant any impairment.

18. The Tribunal therefore concurs with the Secretary’s contention.

    Osteoarthritis of the Right Hip

19. The Secretary contends:

    52…that the Applicant’s condition of osteoarthritis of the right hip was fully diagnosed but not fully treated and stabilised during the qualification period. Accordingly, an impairment rating cannot be assigned to any impairment resulting from that condition.

    53Dr Tang’s report of 5 February 2016 notes the Applicant raised ‘concerns related to right hip pain, which has apparently been fully investigated’ (T12/83). [A doctor’s] report dated 22 November 2016 also notes early onset osteoarthritis of the right hip (T20/128).

    54CT of the Right Hip undertaken on 30 November 2015 (T11/81) notes early osteoarthritis, and states there was established articular cartilage disease. A further X­ ray was conducted on 15 August 2017 (outside the qualification period) which noted no significant change from earlier CT results.  Dr Tang’s report of 18 November 2017 (outside the qualification period) notes he experiences continued pain in his right hip and knee and has had some treatment from his chiropractor (ST2/315-316) however there is no report from the chiropractor detailing this treatment.

    55The JCA also noted there is no further investigation, specialist management or allied health interventions (T33/162). The Secretary considers there is insufficient evidence to consider that the condition is permanent and that no significant functional improvement is likely in the next two years.

    56Should the Tribunal disagree and find the condition was fully treated and stabilised as at the qualification period (which is not conceded), the Secretary contends the impairment arising from this condition is appropriately rated under Table 3 for lower limb function.

    57The Secretary contends that no additional points could be assigned under Table 3 for lower limb function. The Secretary has already considered that the applicant's condition of meningioma, if considered FDTS (which is not conceded), causes impairments attracting a maximum of five points under Table 3. The Secretary contends that there is no available evidence to suggest the osteoarthritis condition causes any additional functional impairment to the lower limbs.

    58The Secretary notes [A doctor’s] report of 22 November 2016 in this regard, which states the Applicant’s gait is slowly improving, but does not attribute this impairment to either the effects of post-operative brain bleed or early osteoarthritis (T20/128). (R2 14).

20. The Tribunal finds there is no evidence to indicate if any treatments have been undertaken with this condition. Whilst it accepts the condition is fully diagnosed, it cannot find evidence to determine if the Applicant’s condition of osteoarthritis on the right hip is fully treated and stabilised.  Accordingly, an impairment rating cannot be assigned to any impairment resulting from this condition.  

21. The Secretary contends:

    59The Secretary contends that the Applicant’s conditions of C6/7 disc prolapse and C7 nerve root impingement were not FDTS during the qualification period. Accordingly, an impairment rating cannot be assigned to any impairment resulting from that condition.

    60The only evidence of this condition appears in a list of past medical history prepared by [a doctor] in his letter of 22 November 2016 which states the Applicant had this condition as of 13 March 2014 (T20/128). There is no evidence of further treatment, or management of this condition. The Secretary considers there is insufficient evidence to consider that the condition is permanent and that no significant functional improvement is likely in the next two years.

    61Should the Tribunal disagree and find that the condition was FDTS in the qualification period (which is not conceded) the Secretary contends that the impairment from this condition is appropriately rated under Table 4 for spinal function.

    62The Secretary contends that the condition attracts zero points under Table 4. The Secretary notes that there is no available evidence of any functional impairment resulting from this condition and therefore considers that no impairment rating can be assigned. (R2 15)

22. The Tribunal finds the Applicants conditions of C6/7 disc prolapse and C7 nerve root impingement were not FDTS during the qualification period.  Accordingly, an impairment rating cannot be assigned to any impairment resulting from this condition.

    Whether the Applicant has a continuing inability to work – section 94(1)(c) of the Act

23. The Tribunal finds that the Applicant has a total of five impairment points under the Impairment Tables and therefore fails to satisfy subsection 94(1)(b) of the Act. Given this finding, it is not necessary for the Tribunal to consider subsection 94(1)(c) of the Act.

24. For the sake of completeness however, should the Tribunal find that the Applicant satisfies paragraph 94(1)(b) of the Act, the Applicant would nevertheless fail to satisfy paragraph 94(1)(c) of the Act: pursuant to subsection 94(3B) of the Act, the Applicant did not have a severe impairment, and, pursuant to subsection 94(3C) of the Act, the Applicant did not actively participant in a program of support (POS).

25. The Applicant lodged his application for DSP on the 13 September 2016. To have actively participated in a POS, this must have occurred for 18 months in the 36 months prior to the date of the claim. There is no evidence before the Tribunal to indicate this occurred.

26. Under cross examination the Applicant confirmed that he had not participated in a POS.

27. On this basis it is highly unlikely this application would have succeeded regardless of whether 20 Impairment points were assigned. 

    DECISION

    For the reasons given above, the Applicant does not qualify for DSP. The decision of AAT1 is affirmed.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

.............[sgd]...........................................................

Associate

Dated: 27 August 2018

Date of hearing:	07/08/2018
Applicant:	In person
Solicitors for the Respondent:	Ashley Burgess, Sparke Helmore Lawyers