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

KTLG and Secretary, Department of Social Services (Social services second review) [2016] AATA 11 (15 January 2016)

Division

GENERAL DIVISION

File Number(s)

2015/2997

Re

KTLG

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Mr S. Webb, Member

Date 15 January 2016

Place Perth
The decision under review is affirmed.

.............[Sgd]...........................................................
Mr S. Webb, Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – motor vehicle accident – compensation – preclusion period – qualification criteria for DSP - conditions causing impairment – permanence of conditions – meaning of ‘fully treated’ and ‘fully stabilised’ – reasonable treatment likely to reduce impairment – no compelling reason for not undertaking reasonable treatment – impairment rating – minimum impairment rating threshold not met – decision affirmed
LEGISLATION
Social Security Act 1991, s 94
Social Security (Administration) Act 1999, s 41, 42, Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mr S. Webb, Member
15 January 2016

The Tribunal has ordered that the name of the applicant in these proceedings is not to be published. I will refer to him as Mr KTLG.
Mr KTLG was injured in a motor vehicle accident. He was paid compensation for his injuries. For several years, this precluded him from obtaining social security payments. When the preclusion period ended, he claimed disability support pension (DSP). His claim was rejected by primary determination and by successive decision-makers, on review. He is not satisfied with this result and he has applied for review by this Tribunal.
In the course of the proceedings, Mr KTLG asked for his application to be dealt with on the papers. The respondent Secretary and the Tribunal agreed to this request.
Mr KTLG has given the Tribunal a large amount of documents and written submissions, comprising at least 17 bundles,[1] for the purposes of his case. I have carefully considered these materials. I do not propose to summarise all of these documents. I will, however, set out parts of the relevant medical material in some detail, even though this will add length and complexity to these reasons.
[1] Letter to the Tribunal, 23 October 2015, pp 2-4.
Facts and medical documentation
Mr KTLG holds a Bachelor of Business degree, a Master of Business Administration and other qualifications. He worked as a Business Consultant. It appears that his most recent period of employment was under a contract that expired on 14 April 2004.[2]
[2] T30 folio 133.
On 7 May 2005, Mr KTLG was injured in a motor vehicle accident. He was rendered unconscious for a time and he sustained multiple soft tissue injuries, including a fractured sternum and extensive bruising consistent with seat belt areas affecting his neck, abdomen and left thigh. He was hospitalised for one night. Medical and radiological investigations were undertaken and he subsequently obtained medical treatment.
Mr KTLG claimed compensation for the injuries he sustained in the motor vehicle accident.
In the present materials, there are a number of medical reports that were generated prior to settlement of Mr KTLG’s compensation claim in 2006. In order to understand the nature of his present conditions, and his case, it is helpful to consider the contents of these medical reports, albeit that they are now a decade old.
On 13 May 2005 Dr Le Roux, a radiologist, reported an occlusive clot in the lower left leg, an acromioclavicular joint injury in the left shoulder that he considered to be old and stable, and an osteochondral lesion of the posterior medial aspect of the talar bone in Mr KTLG’s right ankle.[3]
[3] T5 folio 35.
On 27 May 2005, Associate Professor Wilder-Smith, a neurologist, diagnosed “classical left meralgia paraesthetica with whole sensory area involved”, being the area innervated by the left lateral femoral cutaneous nerve of the thigh.[4] On 14 June 2005, the Associate Professor reported that “It is too early for prognostication, but the nature of the trauma and extensive nerve deficit suggest incomplete recovery”. In a further report on 31 October 2005 he said –
“[Mr KTLG] saw me on 27 May 2005 and 3 June 2005 for symptoms in the left leg following a severe road traffic accident (7/5/05) in Perth, Western Australia. Immediately following the road traffic accident, he noticed numbness and burning sensations and tingling in the region of the left upper lateral thigh. These are severe and disrupt sleep.
I prescribed 1800mg Gabapentin per day to alleviate symptoms.
It is quite likely that he will need to take this medication for the rest of his life.”[5]
[4] T7 folios 37-38.
[5] T18 folio 60.
On 22 June 2005, Professor Das De, an orthopaedic surgeon, reported that Mr KLTG was suffering from “some numbness over the left femoral cutaneous nerve”, aggravated cervical and lumbar spondylosis, hip pain, gallstones and thrombosis in his left leg below the knee. The professor noted “X-rays of his hip joints show a possible old healed crack fracture of the neck of his left femur”, “an MRI of the hips have been advised”. [6]
[6] T10 folio 44.
On 29 June 2005, Dr Fisher, a surgeon, prepared a report to Dr David Flynn, Mr KTLG’s treating general practitioner. Dr Fisher reported a soft tissue nasal injury that “may require surgery to correct the cosmetic deformity”, but “The likelihood is that with the minor state of the injury that he will get away without any further surgery”.[7] On 19 July 2006, Dr Fisher reported –
“He still has some pain on the left nasal bone and left upper lateral cartilage with a deviation of the bones to the right, some nasal obstruction on the left hand side and congestion and discomfort.
It is now very unlikely to improve, it has been well over 12 months since the original injury and his symptoms, I suspect, are going to remain.
The treatment, if he is having enough problems, is to look at a septorhinoplasty and I have discussed this with Mr [KTLG]… If he doesn’t have the surgery I am sure his nasal obstructive symptoms will not improve and it is really a case of whether this is causing enough problems to put himself through an operation.”[8]
[7] T11 folio 45.
[8] T22 folio 77.
On 4 July 2005, Dr Williams, an orthopaedic surgeon, reported to Dr Flynn –
“Clinically there is not a lot to find today. There is still some swelling around his right ankle with some tenderness both medially and laterally. He has a good range of movement of both ankles with no instability. His left hip only has a few degrees of internal rotation but otherwise a normal range of motion and his right hip has a normal range of motion.
I had a look at his x-rays. He has got symmetrical lesions in his talar domes postero-medially. It is unclear whether these are old or new but given the symmetry of them they are probably atraumatic osteochondritis dissecans. His left hip shows some mild degenerative changes with some asymmetry of the femoral head. Again this is most likely a pre-existing condition although he has no history of injury to this hip. He tells me he had no troubles with either of his lower limbs prior to this accident. I don’t think there is anything surgically to be done at this stage. I have recommended he try a course of physiotherapy as I think most of his ongoing discomfort is muscular in origin. I will review him after a couple of months to see what response he has had to physio.”[9]
[9] T12.
Dr Williams reviewed Mr KTLG on 31 August 2005 and reported –
“Unfortunately he didn’t want to attend any physiotherapy as he thought it might cause more pain. He feels somewhat better than he did two months ago. He still has multiple aches and pains…
I understand he is seeing an upper limb surgeon who has recommended some MRIs of his shoulders but he is not keen to go into the MRI scanner at this stage. I would probably recommend an MRI of his hips or ankle if they continue to remain painful. We are going to see how things go for the moment.”[10]
[10] T16.
On 18 July 2005, Dr Zandi, an orthopaedic surgeon, reported to Dr Flynn –
“His current main problems, as far as the upper limbs are concerned, are pain and discomfort with clicking in the right wrist. He has had tenderness over the scaphoid in the area. He has not had any x-rays of that area. I think it is really important for him to have x-ray of the wrist to exclude a fracture of the scaphoid in particular. As far as the shoulders are concerned, he has got a lot of pain and clicking in both shoulders. The left is worse than the right. They are both maximally tender over the AC joint. His rotator cuff power is mainly limited due to pain. X-rays of the left AC joint does show some degree of subluxation. Given the degree of the injuries I think it is probably worth considering an MRI of the shoulder to assess the rotator cuff to make sure there is no underlying rotator cuff type injury, which often can be associated with this type of injury.
I will see him with the MRI and keep you informed.”[11]
[11] T13.
There are no further reports from Dr Zandi.
On 30 August 2005, Jennifer Wright, a clinical psychologist, summarised her assessment of Mr KTLG’s psychological condition[12] and reported to Dr Flynn –
“Mr [KTLG] presents as an intelligent, active man, who is currently pre-occupied with both the physical and psychological aftermath of his accident. He appears to have very high levels of anxiety, which lead to him experiencing significant distress from time to time. He appears to be struggling with his physical injuries, his pain, his psychological symptoms and the general interruption to the future he had foreseen. This is particularly relevant as at the time of the accident he was going through the process of remarrying and finding employment in another country. These activities are major life events, and have been overshadowed and potentially destroyed by the after-effects of the accident.
I am attempting to assess and treat Mr [KTLG] to help him manage his symptoms of PTSD, pain and anxiety, and the life issues he is confronting.”[13]
[12] T15 folio 55.
[13] Ibid, folio 56.
On 6 October 2005, Dr Slinger, an orthopaedic surgeon, reported to Dr Flynn. Dr Slinger noted that Mr KTLG was under the care of Dr Williams and Dr Zandi in respect of symptoms in his hips and ankles and his upper limb, and said –
“I understand that Mr Williams and/or Mr Zandi recommended physiotherapy, however that was deferred because of the severity of his symptoms.
Further investigation recommended by Mr Zandi was for radiological assessment of the shoulder and wrist, to which he was reluctant to proceed because of his perception of the amount of radiation involved. Nor was he keen to proceed with my suggestion of bone scan to exclude fracture, both of the lumbar spine as well as the upper limb.
I suggested he discuss with the radiologist and nuclear medicine physician the dangers, if any, of such radiation and if necessary would be pleased to arrange that relevant investigation.
In respect to treatment, whatever the result of the investigations, it is most likely that my recommendation would be to reassurance as to the presumed soft tissue nature of his injuries, to an exercise program preferably in a heated pool with regular stretching and strengthening. In addition, local measures such as heat massage and mobilisation with physiotherapy for a limited period and continuing with sensibly avoiding provocation with general back care and education.
I regret that I cannot be more specific, until further relevant investigations are undertaken, and I would be most pleased to review him again as and when these are to hand.”[14]
[14] T17 folios 58-59.
There are no further reports from Dr Slinger in the present materials.
On 3 November 2005, Dr Rosen, a neurologist, reported to Dr Flynn –
“On examination a pleasant cooperative dextral man with a normal reactive albeit anxious affect. Mildly elevated BMI. He was a reliable and inclusive witness and provided me with useful detailed and meticulous notes of the accident and of his numerous symptoms initially many of which are now irrelevant. The visual acuity was 6/6, fundi, visual fields and pupils were normal as were the extra ocular movements. The remaining cranial nerves were normal. The tone power and coordination and reflexes were normal in the limbs. The plantar responses were downgoing. The gait was normal. Romberg’s test was normal. Tandem gait was normal. Sensation including vibration and joint position sense at the feet was normal. There was impairment of sensation in the distribution of the left lateral cutaneous nerve of the thigh to pinprick and light touch and allodynia was present. There was a good range of motion at the neck. There was mildly impaired straight leg raising and mildly painful passive movements of the hip. He was quite mobile when dressing and nimble getting up and down from the couch. There was tenderness over the right wrist and also he was wary of my patellar hammer due to infrapatellar tenderness, so I did not use that instrument. The hips were particularly tender.
In summary the main symptom is a neuropathic pain due to a left meralgia paraesthetica almost certainly traumatic judging from the photographs he showed me which indicates a bruised region of the left hip from what I presume was a seatbelt injury. The exact aetiology is probably irrelevant but this kind of bruising is not uncommon following a car accident and is indicative of a degree of trauma which may lead to damage of underlying nerves as they cross bony prominences. I expect that there will be recovery from this neuropraxis over a period of time. Anti-nociceptive therapy with Gabapentin 66mg tds or Pregabalin 150mg bd plus Endep 10-20mg at night can improve the neuropathic symptoms and may prevent evolution of long term neuropathic pain. However he seems to be coping reasonably well without medication having ceased it all a few weeks ago. In addition he may need therapy for his anxiety disorder and intermittent therapy for musculoskeletal pain. All of this is symptomatic therapy. He may wish to consult you regarding drug therapy. I indicated that I expect his symptoms to improve gradually over time, generally this may take up to 2 years for symptoms to resolve and adjustment to occur. I would be happy to provide further advice if required.”[15]
[15] T19 folio 62.
In a further report to Dr Flynn on 11 August 2006, Dr Rosen reported –
“In summary the presentation is consistent with traumatic left lateral cutaneous nerve of the thigh injury which is gradually improving and symptoms of this are becoming less intrusive and he is managing without medications. He has not been back to work fulltime due to significant problems with concentration and fatigue. The left thigh symptoms do not appear to be intruding sufficiently to significantly affect his function. I advised Mr [KTLG] that the focus now should be on managing his anxiety and cognitive symptoms.”[16]
[16] T24.
On 20 March 2006, Dr Johns, a radiologist, reported to Dr Flynn that the thrombus in Mr KTLG’s lower left leg “appears to have reduced slightly in length when compared with 17/5/05”.[17]
[17] T20.
On 29 June 2006, Dr Bell, a consultant orthopaedic surgeon, reported to the Insurance Commission of Western Australia. Dr Bell set out Mr KLTG’s symptoms and his clinical findings on examination in some detail.[18] His assessment of Mr KTLG’s health problems is as follows –
“1.       Soft tissue injury, cervical spine region. Musculotendinous and ligamentous in nature, mostly in the paraspinal muscles. No radiculopathy present.
2.        Fracture of the sternum with 1cm displacement and ongoing symptoms.
3.        Head injury with concussion and some injury to his nose, which I gather is cartilaginous in nature.
4.        Generalised bruising with soft tissue injuries to both lower limbs and his trunk.
5.        Mild osteoarthritis of the left hip joint, which was asymptomatic before May 2005. I believe most of his ongoing discomfort in his left hip region is related to soft tissue bruising around the greater trochanter rather than hip joint arthritis.
6.        Osteochondritis diseccans of both ankles which was asymptomatic prior to May 2005 and there are no specific symptoms in his ankles at present.
7.        Mild grade abdominal discomfort over many years – takes occasional antacids.
8.        Overweight at 85kg.”[19]
[18] T21 folios 67-71.
[19] Ibid, folio 73.
Dr Bell did not consider that any further investigations were required and said –
“Further treatment I believe is best advised along conservative non-operative lines with spinal education and stretching and strengthening exercise programs.
Developing a more optimistic outlook on his situation appears a major issue for him.
Improvement of muscle tone with isometric and range of movement exercises for his neck should help, as should shoulder shrugging and shoulder stretching.
Improvement of posture and flexibility should help him.
Improvement of circulation with activity within the limits of discomfort and with a weight control program should be of further assistance.
Improvement of nutrition should help.
Symptomatic measures of heat, ice, Dencorub would provide additional relief.
Bending his knees for any lifting and twisting to take pressure off his spine should help the healing process.
I believe the things to be done are largely for Mr [KTLG] to undertake under the guidance of his treating doctors and physiotherapists.
Although he maintains that his health was good prior to May 2005, I do not believe his physical fitness was all that good and I believe he is well advised to take up a program of stretching and strengthening exercises in the long-term.
As far as treatment for his motor vehicle crash-related injuries are concerned I believe he needs to keep up such a program for 12 to 18 months.
…
At present his general level of function is reasonably good.
…
He maintains that he is unable even to perform sedentary work. Whilst I understand that he has ongoing discomfort problems, it is difficult to support his view that he is unfit for managerial and sedentary work and I do consider him fit for most business consulting type duties on a full time basis.
Although I understand he has ongoing discomfort in many areas, I believe he is capable of most normal everyday activities.
…
Prognosis
Guarded. It is of concern that he has put on so much weight and that he has become so sedentary. I believe his outlook would be much improved if he were to take up a program such as that suggested above with improvement of muscle tone, posture, flexibility and circulation with a weight control program.
Permanent Disability
…
Of the multidude of symptoms I believe it is reasonable to assess a degree of permanent disability in the cervical spine region as he has had a degree of head injury and bruising around his nose, and I do assess a degree of disability in the cervical spine region, which is related to the May 2005 motor vehicle crash. I estimate this to be:
5% (Five Percent) permanent loss of the full efficient use of the neck (including cervical spine).
In addition, although he does not present with any physical signs of postphlebetic limb swelling, he has had a deep vein thrombosis in the left lower limb and soft tissue bruising. I believe it is reasonable to assess a degree of permanent disability in the left lower limb and I assess this to be:
5% (Five Percent) loss of the left lower limb.
I believe his arthritic changes in the left hip and his osteochondritis dissecans which is present in the ankle joints on both sides are pre-existing changes and unlikely to have been caused or worsened by the May 2005 motor vehicle crash.
…
Based on the findings of this assessment, I consider that Mr [KTLG’s] condition has now stabilised and is unlikely to differ significantly in the short to medium term.”

Mr KTLG takes issue with aspects of Dr Bell’s report – see his responses in T23, for example.
On 20 September 2006, Dr Shub, a psychiatrist, provided a report to Mr KTLG and Dr Flynn. A copy of this report, annotated by Mr KTLG, is in T25. It appears that Mr KTLG first consulted Dr Shub on 8 March 2006 and he attended for review on seven occasions thereafter in the period to 15 September 2006. Dr Shub reported that Mr KTLG was suffering from Post-Traumatic Stress Disorder and Panic Disorder without Agoraphobia,[21] and that he “had developed some depressive phenomena” that “did not meet the full syndromal criteria for Major Depressive Disorder”.[22] Furthermore –
[21] T25 folio 91.
[22] Ibid, folio 94.
“… Mr [KTLG] sustained a head injury, which resulted in a period of unconsciousness, which to my knowledge has not been fully investigated.
It is my opinion that he should have a brain MRI, as well as a specialised neuropsychological assessment.
The latter instrument would be particularly useful in quantifying any degree of cognitive deficit, whilst the former would identify any structural brain changes as a consequence of the motor vehicle accident.
Unfortunately, Mr [KTLG] has been reluctant to undergo further imaging procedures – due to his concern regarding the level of radiation to which he has already been exposed.
…
It is my view that Mr [KTLG] will require ongoing psychiatric management – involving a combination of pharmacotherapy and psychotherapy.
Given his adverse reaction to the Venlafaxine that was previously prescribed, I would consider another agent such a Reboxetine (Edronax) or Escitalopram (Lexapro).
Additionally, these agents may need to be augmented by other psychotropic drugs, in order to optimise his clinical response.
I believe he continues to require psychotherapy – involving cognitive behavioural and supportive elements.
…
Given his current level of psychological morbidity, I anticipate that he would require treatment for at least another 12 months.
…
I believe Mr [KTLG’s] prognosis to be guarded – though feel clinical improvement will take place one [sic] his psychiatric management has been optimised.
In particular, I believe that he requires appropriate antidepressant cover…
…
At this stage, it is my view that it is premature to consider any permanent psychiatric disability – given that he has not yet been optimally psychiatrically managed – due to his current reluctance to recommence medication.
…
At this point, I believe the most appropriate instrument to quantify his level of psychological morbidity is that of the Social Security Act: Psychiatric Impairment (AMA Guides January 1994).
Using this instrument, I would consider his current impairment rating to be in the order of 20…
I believe that a further review should be undertaken following at least six months of psychiatric treatment – involving a combination of pharmacotherapy and psychotherapy”[23]
[23] Ibid, folios 96, 97, 98, 99 and 101.
On 24 October 2006, Dr Flynn wrote to the Insurance Commission of Western Australia and said –
“As a closing submission Mr [KTLG] had made an accurate summary of the many physical and psychological injuries consequent upon the accident.
I can confirm that his report is factual in all respect and I agree with his conclusion and the significant work impairment the accident caused.”[24]
[24] T26.
The ‘submission’ to which Dr Flynn refers is in T27.
As I have said, Mr KTLG settled his compensation claim in 2006 by consent. The amount of the compensation he received is not presently material; nor is the duration of the preclusion period during which he was unable to obtain social security payments. It is sufficient to note that Mr KTLG was not precluded from obtaining social security payments when he lodged a claim for DSP on 22 April 2014 (he signed and dated this form on 20 April 2014).
Before addressing issues relating to his DSP claim, it is desirable to refer to the remaining medical documents.
On 15 November 2010, Dr Liddel, an orthopaedic surgeon, reported to Dr Flynn –
“Since the accident, he has had number of non-specific symptoms – including panic attacks and anxiety, “a slight tremor” in his left upper limb, and sexual difficulties. He described his pain as being an “itching, stinging” sensation on the antero-lateral aspect of his thigh. It has been helped in the past by Neurontin, but appears to have been worse in the last few months.
I examined him briefly, and noted that he appeared generally well. He was able to walk on his toes and his heels (with some difficulty), but he was not able to touch his toes. The examination of his cranial nerves was unremarkable – as was the remainder of his neurological examination. He had no real limitation of straight leg raising. His peripheral pulses were palpable. The examination of his abdomen was unremarkable. He did not have any specific tenderness in the region of his left anterior superior iliac spine – nor did he have any obvious spinal tenderness in the lumbar region. Nevertheless, he had a degree of diffuse tenderness to the left of the midline posteriorly, in the mid cervical spine region.
I have discussed the situation at some length with him, and have suggested that it would be reasonable to investigate him further with an injection of local anaesthetic/steroid medication into the region of his left lateral cutaneous nerve of thigh. If that confirms the diagnosis, but does not relieve his symptoms, I believe it would be reasonable to consider releasing his nerve.
Incidentally, I noted his lack of enthusiasm for any further investigations.”[25]
[25] T28 folios 107-108.
On 13 April 2014, Dr Flynn provided a Medical Report for DSP.[26] In this report, Dr Flynn recorded ‘Condition 1 – condition with most impact’ to be “Left thigh pain and numbness due to meralgia paraethesetica affect left lateral femoral cutaneous nerve of thigh”.[27] This condition was treated with Lyrica 75mg per day from 10 January 2014, which Dr Flynn reported would continue “indefinitely”. No other future treatment was proposed. Dr Flynn described the impact of this condition on Mr KTLG’s ability to function in the following way – “Chronic pain globally impairs his function including sitting, standing and sleeping”.[28] He reported that the condition “will be permanent”; ticking boxes indicating that the impact of the condition is expected to persist for more than 24 months and the effect of this condition on Mr KTLG’s ability to function is expected to remain unchanged within the next two years.
[26] T29.
[27] Ibid, folio 112.
[28] Ibid, folio 114.
Dr Flynn recorded ‘Condition 2’ in the form to be “Motor vehicle accident 7.5.2005. Multiple soft tissue injuries. Sternum fractured, left calf deep vein thrombosis, aggravation of osteoarthritis of left hip and neck injury”.[29] Diagnosis of this condition was apparently supported by Dr Bell – Dr Flynn refers to Dr Bell’s assessment of “5% disability of neck and left hip and left lower leg (each)”. Dr Flynn reported that since 9 May 2013 this condition was treated with Mobic 15mg and no different future treatment was proposed. Previous treatment included “Panadol, Neurofen, Mobic, has had physiotherapy” and referral Dr Liddel.[30] Dr Flynn reported the following symptoms of this condition – “Pain in cervical spine (neck), left hip, right knee, left shoulder, right ankle, right wrist”. Dr Flynn reported the impact of this condition on Mr KTLG’s ability to function in the following way – “Globally impaired by chronic pain in left anterior thigh and left hip and other areas mentioned above. Includes dropping objects from left > right hand” – and that the impact of this condition was expected to persist for more than 24 months. Dr Flynn expected the effect of this condition on Mr KTLG’s ability to function to remain unchanged within the next two years, in respect of which he provided the following details – “Pain in left hip due to osteoarthritis will be ongoing”.[31]
[29] T29 folio 115.
[30] Ibid, folio 116.
[31] Ibid, folio 117.
Dr Flynn described other conditions – “Also diagnosed with benign paroxysmal positional vertigo 14-2-2014, intermittent panic and anxiety attacks, fatty liver, gall stones and flat feet” and “Post Traumatic Stress Disorder as diagnosed by Dr Danny Shub and Ms Jennifer Wright (Psychologist). Classified by Dr Danny Shub Psychiatrist on 20.9.2006 as 20% current impairment rating”.[32]
[32] Ibid, folio 118
Dr Flynn reported that Mr KTLG is ‘temporarily unfit for work or study’ from 7/5/2005 to “Indefinite”, ticking the box to indicate that Mr KTLG ‘cannot’ ‘currently do their usual work or study or any other work for 8 hours or more per week’.
On 28 April 2014, Professor Hankey, a consultant neurologist, reported to Dr Flynn –
“… It is likely that he has damaged the left lateral cutaneous nerve of the thigh from severe bruising and trauma as a result of a seat belt injury in 2005.
Unfortunately there does not appear to have been any recovery of function at the left lateral cutaneous nerve and so he has permanent sensory loss there. Nevertheless, there must be some function as he experiences an intermittent burning sensation when he is in certain postures such as lying down on his back and rolling slightly to the right.
There is no treatment to recover the function of the nerve (it is unlikely that decompression surgically would realise any functional recovery) but it is possible, in theory at least, to reduce the intermittent burning sensory sensation.
The first strategy of course would be to avoid the postures that provoke the intermittent nerve compression and burning. In addition to that, he is also taking Pregabalin 75mg on a prn basis. I think that if it is to try and reduce the sensation he should take the Pregabalin consistently, increasing the dose from 75mg daily, if required to twice daily after two or three days and more slowly up to a maximum of 300mg twice daily. He should not have an interaction with his other medications…
However, rather than take constant medication, he may benefit from a local injection of local anaesthetic with or without steroid over the lateral cutaneous left thigh as its exits just inferior to, and within one inch of the left anterior superior iliac spine. He is going to contemplate a local injection and return to see you to discuss this option and whether referral to the appropriate person such as an anaesthetist is requested.”[33]
[33] T33 folio 191.
On 13 June 2014, Dr Hamlin, a radiologist, reported “Normal right calcaneum” on x-ray of Mr KTLG’s right foot.[34] Whereas, ultrasound of the right hindfoot on the same day was reported thus –
“There is a presumed partial tear of the right medial band plantar fascia. Clinical surveillance and a repeat ultrasound recommended in approximately 8 weeks to ensure improvement.”[35]
[34] T34 folio 193.
[35] T 34 folio 194
On 17 June 2014, Mr KTLG provided Centrelink with an expansive submission, setting out his account of symptoms and impairments and the way in which these impact upon his daily functioning.
On 18 June 2014, Mr KTLG underwent a Job Capacity Assessment, conducted by ‘Marian’, an accredited exercise physiologist, with contributions from ‘Peter’, a registered psychologist (the Assessors).[36] The Assessors recorded Mr KTLG’s “Lower Limb Deficiencies”, “Neck Disorder”, “Chronic Pain” and “Psychol/Psychiatric Disorder” to be “Permanent”, with each condition noted to be “permanent but not fully treated or stabilised”.[37] A “Musculo-skeletal Disorder – Other” was recorded as “Temporary”.[38] Mr KTLG was reported to have a base line work capacity of “8-14 hours per week” which was expected to increase within two years with intervention, namely “Psychological/cognitive assessment/intervention (P55)”, “Secondary rehabilitation (M54)” and “Pain management program (M55)”.[39]
[36] T36.
[37] Ibid, folios 203, 204, 205 and 206.
[38] Ibid, folio 206.
[39] Ibid, folio 208.
As can be seen from the extensive submissions he has made, Mr KTLG takes issue with this report.
On 23 June 2014, Mr KTLG’s DSP claim was rejected.[40]
[40] T37.
On 29 August 2014, Dr Flynn wrote to Centrelink in the following terms –
“I have read your assessment of my patient’s medical conditions, and I would urge you to reconsider your decision in failing to approve his application for a Disability Support Pension.
I believe that you have failed to consider [Mr KTLG’s] global position of impairment, and instead have dealt with each specific medical condition in isolation.
When one considers [Mr KTLG’s] conditions in summation they amount to a significant global impairment of functioning which has shown no sign of improvement over the past few years, and should qualify him for the Disability Support Pension in my view.”[41]
[41] T38.
On 3 September 2014, Dr Flynn again wrote to Centrelink and said –
“Further to my previous report and correspondence I wish to add that [Mr KTLG] has a painful deformity of both great toes, called hallux valgus.
This condition would have been in progress for more than 2 years, and with his other foot complaint pes planus, is associated with significant pain and disability in terms in interference with walking.
In addition he has significant varicose veins affecting the left lower leg which causes swelling and aching discomfort on standing.”[42]
[42] T39.
On 16 September 2014, Mr KTLG provided Centrelink with a voluminous submission seeking review of the decision to reject his DSP claim by an Authorised Review Officer (ARO).[43]
[43] T40
On 28 November 2011, ‘Carly’, a registered nurse employed by Centrelink’s Health Professional Advisory Unit, provided an opinion in respect of nine identified conditions.[44] Only one condition was found to be fully diagnosed, fully treated and fully stabilised, but no impairment rating was given due to lack of sufficient relevant information.[45]
[44] T41 folio 279.
[45] Ibid, folio 281.
Mr KTLG takes issue with this report.
On 17 December 2014, the ARO decided to affirm the primary determination to reject Mr KTLG’s DSP claim.[46]
[46] T42.
On 9 March 2015, Dr Flynn wrote to Centrelink and said –
“This is to certify that my patient has suffered significant stress from having to contest his application for a disability support pension which was rejected initially.
He has significant anxiety, difficulty concentrating and insomnia due to this process including an increase in physical pain from his known disabilities and I would be grateful if this could be taken into consideration.”[47]
[47] T44.
On 12 March 2015, Mr KTLG applied for review by the (former) Social Security Appeals Tribunal (SSAT).[48] On that day and on 8 May 2015, Mr KTLG provided the SSAT with voluminous and very detailed submissions addressing aspects of his case.
[48] T45.
On 21 May 2015, the SSAT decided to affirm the decision rejecting Mr KTLG’s claim for DSP.[49]
[49] T2.
On 18 June 2015, Mr KTLG applied to this Tribunal for review. With his application for review, Mr KTLG provided nine bundles of documents, amounting to many hundreds of pages, addressing aspects of his case. Subsequently, Mr KTLG provided the Tribunal with additional documents and submissions on 31 July 2015, 23 September 2015 and on 1, 2, 5 and 7 October 2015. On 23 October 2015, Mr KTLG provided the Tribunal with a 139 page document with 19 appendices, in response to the Secretary’s Statement of Facts, Issues and Contentions document, filed on 30 September 2015.
Issues
Mr KTLG’s DSP claim must be determined under s 94 of the Social Security Act 1991 (the Social Security Act). Essentially, for Mr KTLG to qualify for a DSP, he must satisfy the requirements of this section.
The issue to be decided is whether Mr KTLG’s claim for DSP should be granted. Grant of DSP is dependent upon the requirements of s 94 of the Social Security Act being met. The key criteria that arise for consideration in this review are –
94 Qualification for disability support pension
(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;
…
Start day and qualification period
Mr KTLG lodged his claim for DSP on 22 April 2014.
Under s 41, s 42 and Part 2 of Schedule 2 of the Social Security (Administration) Act 1999 (the Administration Act), Mr KTLG’s ‘start day’ for DSP will be 22 April 2014 if he met the qualification criteria on that day or within 13 weeks thereafter (the qualification period). If he did not meet the qualification requirements within this period, DSP will not be payable and his claim will fail.
For this reason, it is necessary to consider Mr KTLG’s health conditions and impairments during the qualification period. For this purpose, it is appropriate to consider all of the materials that are relevant to making a proper assessment of his impairments and their impact on his ability to function during this period. Documents preceding or following the qualification period may bear upon this assessment.
Defective administration
Mr KTLG is not happy with the manner in which his claim has been dealt with and assessed. He has made very extensive and detailed submissions about such matters. In particular, he is critical of the Job Capacity Assessment carried out by ‘Marian’ on 18 June 2014 and the extent to which this has been relied upon by subsequent decision-makers. He is very critical of the decisions made in respect of his claim and the way in which his case has been managed. He alleges some kind of conspiracy to withhold relevant material, in respect of ‘page 59’, which was missing from the documents, for example.
As I understand this aspect of Mr KTLG’s case, he is urging the Tribunal to find fault with previous decisions and Centrelink assessments in respect of his claim, and to make findings of defective administration against Centrelink.
I should say immediately that the Tribunal is not a court with judicial review powers; it is an administrative body charged with providing mechanisms for review of decisions on the merits, exercising jurisdiction that is conferred upon it by legislation.
The Tribunal’s role is to make a fresh decision in respect of Mr KTLG’s claim. This is to be done having regard to all relevant materials that are before the Tribunal. In effect, in a case of this kind, the Tribunal stands in the shoes of the person who made the original decision under review and, exercising all of the powers available to that person, it makes factual findings and applies the law when determining, afresh, the correct or preferable decision under the applicable legislation.
Physical, intellectual or psychiatric impairment
It is quite clear that Mr KTLG sustained a number of injuries in the motor vehicle accident on 7 May 2005. The progress of the effects of these injuries over time and the extent to which these conditions caused impairment during the qualification period is somewhat more difficult to determine. In all likelihood, previously existing but asymptomatic conditions were rendered symptomatic by the accident, whereas soft tissue injuries appear to have resolved or healed over time and with treatment.
On Dr Flynn’s evidence, it appears likely that Mr KTLG was suffering from the following disabilities, illnesses and injuries during the qualification period -
(a)chronic pain affecting his neck, left hip, left anterior thigh, right knee, right ankle, left shoulder and right wrist;
(b)meralgia paraesthetica affecting the left lateral femoral cutaneous nerve of the thigh;
(c)residual or ongoing effects of soft tissue injuries affecting Mr KTLG’s head, neck, lower back, left hip, left lower leg, right lower limb, left shoulder and right wrist;
(d)upper limb tremor or weakness;
(e)psychiatric conditions, including post-traumatic stress disorder, anxiety disorder and panic attacks;
(f)benign paroxysmal positional vertigo;
(g)pes planus and a presumed partial tear of the right medial band plantar fascia;
(h)bilateral hallux valgus;
(i)gall stones;
(j)a fatty liver; and
(k)varicose veins in the left lower leg.

I am satisfied that these conditions cause (or are themselves) impairments for the purposes of s 94(1)(a) of the Social Security Act.
Rating of 20 points or more under the Impairment Tables
The second requirement, under s 94(1)(b) of the Social Security Act, is that Mr KTLG’s impairments must attract a rating of 20 or more points under the Impairment Tables set out in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
The Determination sets out the rules that must be applied when assessing impairments and the conditions that cause them. Impairments must be assessed with reference to the qualification period. As the Determination is a kind of delegated legislation, the rules for applying the Impairment Tables set out in Part 2 are binding and must be construed in accordance with the objects and purposes of the Social Security Act.
Section 6(3) provides that an impairment rating may only be given for conditions that are ‘permanent’ where the impairment is more likely than not to persist for more than two years.
Under s 6(4) a condition is taken to be permanent only if the condition has been –
(a)fully diagnosed (by an ‘appropriately qualified medical practitioner’, being a medical practitioner with qualifications and practice relevant to diagnosing a particular condition);
(b)fully treated (s 6(5) applies);
(c)fully stabilised (s 6(6) applies); and
(d)the condition is more likely than not, in light of available evidence, to persist for more than two years.
Section 6(6) provides 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) 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.
The term ‘reasonable treatment’ is given meaning by s 6(7) –
For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)       is available at a location reasonably accessible to the person; and
(b)       is at a reasonable cost; and
(c)       can reliably be expected to result in a substantial improvement in functional capacity; and
(d)       is regularly undertaken or performed; and
(e)       has a high success rate; and
(f)        carries a low risk to the person.
Section 6(9) is to be applied when assessing the functional impact of pain –
There is no Table dealing specifically with pain and when assessing pain the following must be considered:
(a)       acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and
(b)       chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and
(c)       whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).
Sections 10(5) and (6) provide that –
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
These rules must be applied when assessing each of Mr KTLG’s impairments and conditions.
Chronic pain
Dr Flynn described Mr KTLG’s pain in various parts of his body as “chronic pain”. Pain that is attributable to a diagnosed condition is only assessable under the Impairment Tables if the condition is fully diagnosed, fully treated and fully stabilised.
On Dr Flynn’s evidence, the specific parts of Mr KTLG’s body affected are his neck, left hip, left anterior thigh, right knee, right ankle, left shoulder and right wrist. It appears that Dr Flynn associates pain in each of these areas with ‘soft tissue’ injuries Mr KTLG sustained in the motor vehicle accident on 7 May 2005 (see T25 folios 115 and 116, for example).
Dr Bell reported detailed findings on examination of Mr KTLG on 22 June 2006.[50] At that time Mr KTLG presented with “diffuse aches in many areas of the body”. On Dr Bells’ report, from a diagnostic perspective, the causal mechanism underlying these symptoms is not entirely clear. Dr Bell recommended treatment in the form of exercise programs and weight control for a period of 12 to 18 months, which he believed would improve Mr KTLG’s function and his prognosis or “outlook”.[51] Despite “some doubt about the situation” at that time, and noting Mr KTLG’s presentation with “a significant degree of disease conviction”, Dr Bell assessed a five percent permanent loss of the full efficient use of the neck and a five percent loss of the left lower limb. The basis on which these assessments were made is not entirely clear, but Dr Bell considered that Mr KTLG was “fit for most business consulting type duties on a full-time basis” and he was “capable of most normal everyday duties”. The present evidence does not establish that Dr Bell’s assessments of permanent loss were made in respect of chronic pain symptomatology.
[50] T21 folios 69-71.
[51] T21 folios 74 and 75.
I note in passing that Dr Bell’s assessment of the degrees of permanent loss in Mr KTLG’s neck and left lower limb was made for the purposes of the Insurance Commission of Western Australia in the context of a compensation claim.
There are two things to say about this. Firstly, Dr Bell’s assessment was made in 2006 (eight years before the qualification period) on the best evidence and his clinical examination at the time. It does not follow that the same assessment would be made presently. Regard must be had to the subsequent progress of Mr KTLG’s health and the materials that are now available. Secondly, it is probable that Dr Bell applied the relevant legislative tests or instruments under the laws of Western Australia when making his assessment of permanent loss. Those tests and instruments have specific contents and purposes. It should not be assumed that an assessment made applying such tests and instruments for compensation purposes may be imported for the purposes of rating a person’s impairments under the Social Security Act and the Determination.
Dr Liddell examined Mr KTLG on 10 November 2010 and reported that neurological examination was “unremarkable”.[52] There is no reference in Dr Liddell’s report to ‘chronic pain’ in various parts of Mr KTLG’s body, although he reported left thigh pain and “diffuse tenderness” in the mid cervical spine region.
[52] T28 folio 107.
Professor Hankey examined Mr KTLG on 28 April 2014 and reported intermittent burning sensations and numbness in Mr KTLG’s left thigh. Professor Hankey did not refer to pain symptoms in other parts of Mr KTLG’s body.
Doing the best with the present materials, there is an open question about the cause of the ‘chronic pain’ symptoms Mr KTLG complains about and that are reported by Dr Flynn. If chronic disabling pain was present in various parts of Mr KTLG’s body as a result on injuries he sustained in 2005, as he alleges, one would expect to find reference to this in the reports of Dr Bell, Dr Liddell and Dr Hankey.
Proceeding on the basis that Dr Flynn is correct, however, I will address each of the specific injuries to which Dr Flynn attributes ‘chronic pain’ shortly.
In respect of the possibility that a ‘global’ pain condition exists, I would be compelled to find on the present evidence that no such condition has been diagnosed. There is no evidence that suggests a ‘global’ chronic pain condition has been investigated or treated, or stabilised. I accept that Dr Flynn has prescribed analgesic and other medications for pain management and he has referred to ‘chronic pain’ but, to my mind, this does not amount to diagnosis of neurological, nociceptive or psychiatric pain disorder. I note that Dr Flynn reported on 9 March 2015 that Mr KTLG suffered “an increase in physical pain from his known disabilities” as a result of the stress of challenging the decision to reject his claim for DSP. This suggests that Mr KTLG’s pain may have a psychological or somatic character, but there is no evidence that a condition of this kind has been investigated, diagnosed or treated. Dr Shub made no such diagnosis on examination of Mr KTLG on 20 September 2006.
It follows that a ‘chronic pain’ condition is not established as ‘permanent’ under s 6(4) and any resulting impairment cannot be rated under the Impairment Tables. As I have said, however, I will address impairments resulting from chronic pain caused by the specific conditions or injuries Dr Flynn has identified.
Meralgia paraesthetica
This condition is well documented and diagnosed. There is little doubt that Mr KTLG’s left lateral cutaneous nerve of the thigh was damaged in the motor vehicle accident in 2005.
On the evidence of Dr Hankey, I am satisfied that this condition has been fully diagnosed.
It is also reasonably clear, on the evidence of Professor Hankey, that sensory loss stemming from this traumatic injury is permanent and it is not amenable to further treatment. The same cannot be said, however, for the intermittent burning sensation Mr KTLG reported to Professor Hankey. On the Professor’s evidence, two treatment strategies exist to address this symptomatology – pharmacological treatment with Pregabalin, and injection with local anaesthetic.
I note in passing that Dr Flynn refers to the continuation of left anterior thigh pain, despite treatment. But it is not presently established that either course of treatment recommended by Professor Hankey has been undertaken. Dr Flynn makes no reference to treatments of this kind in his reports.
I have considered Mr KTLG’s reasons for not undertaking medical treatments of various kinds. I am satisfied that the present evidence does not establish any compelling reason for him not to undertake either of these courses of treatment.
To my mind, while it is not free from doubt, and there is very scant evidence about the likely effects of the proposed treatments, the two courses of treatment recommended by Professor Hankey meet the test of ‘reasonable treatment’ for Mr KTLG’s meralgia paraesthetica condition. Professor Hankey is a medical expert who is suitably qualified to make such recommendations. While the words “it is possible, in theory at least” convey uncertainty in terms of the likely outcome of the treatment, I do not construe this to mean that a substantial improvement in function cannot reliably be expected. I would infer from Dr Hankey’s recommendation that a substantial improvement in function could reasonably be expected in the circumstances, and this meets the test of reliable expectation.
For this reason, I am not able to find that Mr KTLG’s meralgia paraesthetica is ‘fully stabilised’ and therefor ‘permanent’ for the purposes of the Determination. It follows that impairments resulting from this condition cannot be rated under the Impairment Tables.
Residual or ongoing effects of soft tissue injuries
It is clear that Mr KTLG sustained injuries to his head, neck, lower back, left hip, left lower leg, right lower limb, left shoulder, right shoulder and right wrist.
Head
Mr KTLG sustained a concussion and a cartilaginous nasal injury, as well as facial contusions, in the 2005 motor vehicle accident.
The present medical evidence does not establish that facial contusions continue to affect Mr KTLG.
Mr KTLG sustained physical positional damage to nasal structures and this may well cause nasal congestion or obstruction and related discomfort from time to time, as foreshadowed by Dr Fisher. The positional damage is susceptible to septorhinoplasty surgical repair, but no such surgery has been undertaken by Mr KTLG. The extent of any functional impairment resulting from this condition during the qualification period is not presently established or able to be determined on the present materials, however.
There is not sufficient evidence to establish whether this injury was symptomatic or the cause of any functional impairment during the qualification period.
For this reason, even if Mr KTLG’s nasal condition has been fully treated and fully stabilised and ‘permanent’, on the present evidence the functional impact of impairment resulting from this condition could not be assigned a rating greater than zero.
On the evidence of Dr Shub, it is conceivable that Mr KTLG may have suffered organic brain damage as a result of his head injuries, perhaps affecting his cognitive function. I note that Ms Wright and Dr Shub report reduced cognitive function, but the cause of this loss is not presently established. Mr KTLG suffers from psychiatric disorders, but it is not clear whether these conditions are the cause of cognitive impairment. Mr KTLG has not been investigated for organic brain injury, despite the clear recommendations of Dr Shub in this regard, and no diagnosis of organic brain damage has been made.
For this reason, no impairment rating can be given for cognitive functional impairment resulting from organic brain injury or from any other psychiatric condition.
It may be that Mr KTLG experiences headaches and other head pains, and he complains of some loss of visual acuity, but, on the present materials, these have not been investigated or fully diagnosed. Cranial neurological examination by Dr Liddell in November 2010 was reported to be unremarkable.
Even if these impairments are accepted, and I make no such finding, they have not been fully diagnosed, fully treated or fully stabilised and no impairment rating can be assigned.
Neck
I accept the evidence of Dr Bell that Mr KTLG sustained an injury to his cervical spine in the 2005 motor vehicle accident. This was apparently musculotendinous and ligamentous in nature. The clinical findings of Dr Liddell in November 2010 and the report of painful neck symptoms by Dr Flynn in April 2014 provide support for this conclusion.
Dr Bell recommended treatment in the form of a 12 to 18 month exercise program, involving isometric and range of motion exercises for Mr KTLG’s neck under the guidance of his treating doctors and physiotherapists.
The present materials do not establish that treatment of this kind has been undertaken by Mr KTLG. Dr Flynn reports previous and future treatment with Panadol, Neurofen and Mobic. He also reported that Mr KTLG has had physiotherapy. There is very scant evidence of this. It appears that Mr KTLG may have obtained physiotherapy treatments for a very short period in 2005, but not subsequently.
I am reasonably satisfied that Mr KTLG has not undertaken treatment proposed by Dr Bell and, furthermore, that the treatment Dr Bell recommended is ‘reasonable treatment’ and that Mr KTLG’s neck condition is not ‘fully stabilised’ and ‘permanent’ for the purposes of the Determination. Any resulting impairment cannot be assigned a rating under the Impairment Tables.
Lower back
There is very scant evidence of an injury to Mr KTLG’s lumbar spine or to his lower back. It appears that he may have aggravated previously asymptomatic lumbar spondylosis.
There is not sufficient evidence to establish whether this injury was symptomatic or the cause of any impairment during the qualification period.
It is conceivable that Mr KTLG experienced some low back pain that may be attributable to lumbar spondylosis. This would not be unusual for a person of his age. The present materials are not sufficient to assess any impairment resulting from a lumbar spine or low back condition during the qualification period.
Left hip
I accept that Mr KTLG sustained an injury to his left hip. This was in the form of aggravation of a previously asymptomatic condition in the left femoral head or neck.
Dr Bell reported mild osteoarthritis of the left hip joint, but considered that most of Mr KTLG’s discomfort in the left hip region is related to “soft tissue bruising around the greater trochanter rather than the hip joint arthritis”.[53]
[53] T21 folio 73.
Dr Flynn reported that Mr KTLG’s left hip pain due to osteoarthritis will be ongoing.
I accept that Mr KTLG’s left hip osteoarthritis is fully diagnosed, fully treated and fully stabilised, and that during the qualification period the pain and related impairment of function is likely to persist without change within two years. I accept that the impairment of Mr KTLG’s hip function affects his capacity to mobilise and to stand for extended periods.
To my mind, having regard to Mr KTLG’s evidence and the evidence given by Dr Flynn, the precise extent of functional impairment resulting from Mr KTLG’s left hip condition is far from clear. The present evidence is not sufficient to determine the impact of this impairment of Mr KTLG’s lower limb function. Nevertheless, the ‘global’ functional impact of Mr KTLG’s lower limb impairments described by Dr Flynn may be consistent with a moderate functional impact, attracting a rating of 10 points under Table 3.
Left lower limb
There are two further conditions affecting Mr KTLG’s left lower limb that I have not yet addressed – deep vein thrombosis and osteochondritis dissecans.
It appears that on 19 November 2014, Dr Flynn advised that the deep vein thrombosis condition had resolved.[54]
[54] T41 folio 279.
This raises serious questions about the extent to which this condition contributed, if at all, to Mr KTLG’s symptomatology and impairments during the qualification period.
On balance, the present evidence does not establish that this condition was present or, if present, that it was the cause of significant symptoms or impairment during the qualification period. Accordingly, it cannot be assigned a rating under the Impairment Tables.
It is established that Mr KTLG suffers from osteochondritis dissecans in both ankles.
Dr Flynn does not expressly refer to this condition in his report on 13 April 2014 for the purposes of Mr KTLG’s DSP claim.
I am prepared to accept that the condition may be ‘permanent’ for the purposes of the Determination. But the present medical evidence does not establish that this condition was symptomatic or the cause of impairment in Mr KTLG’s left ankle during the qualification period. For this reason, it does not attract a rating greater than zero on the present materials.
I note in passing that impairments common to and resulting from different conditions may only be assessed once under the Impairment Tables. On Dr Flynn’s evidence, the common or ‘global’ nature of Mr KTLG’s lower limb impairments resulting from his left hip condition may attract a rating of 10 points under Table 3, but no greater rating under that Table is made out.
Right lower limb
It is quite clear that osteochondritis dissecans is present in Mr KTLG’s right ankle.
On the present medical evidence, it is not established that this condition was symptomatic or productive of impairment during the qualification period.
As with this condition in the left ankle, even if it is accepted as ‘permanent’ for the purposes of the Determination, on the present materials it does not attract a rating greater than zero under the Impairment Tables.
Left shoulder and right shoulder

Dr Zandi reported an injury to Mr KTLG’s left and right shoulders in 2005 and recommended that he undergo an MRI to assess any damage to the rotator cuffs, but no such investigation was undertaken. It appears that Mr KTLG was concerned about possible side effects.
On subsequent examinations by Dr Bell in 2006 and Dr Liddell in 2010, no injury or impairment of his left or right shoulder was reported. On the contrary, Dr Bell and Dr Liddell both reported full motion in the shoulder joints.
Dr Flynn did not expressly refer to an injury to Mr KTLG’s shoulders in his medical report for DSP on 13 April 2014.
The present medical evidence does not establish that Mr KTLG suffered from a shoulder condition that was fully diagnosed, fully treated and fully stabilised during the qualification period.
On balance, it is not presently established that Mr KTLG’s left shoulder or his right shoulder injury was symptomatic or the cause of any impairment during the qualification period. I am not able to determine on the present materials whether these injuries had resolved or were simply asymptomatic at the time. The cause of pains Mr KTLG describes in his upper torso, shoulders and upper limbs is not able to be determined on the present materials.
In any event, Mr KTLG’s left and right shoulder injuries, if they were present at all during the qualification period, cannot be assigned a rating under the Impairment Tables.
Right wrist
The evidence concerning an injury to Mr KTLG’s right wrist is very scant. Dr Zandi reported symptoms of pain over the scaphoid region and recommended further investigations to be undertaken. It appears that Mr KTLG decided not to do so.
Subsequent examinations by Dr Bell and Dr Liddell did not reveal any right wrist condition or injury.
The present medical evidence does not establish that Mr KTLG suffered from a right wrist condition that was fully diagnosed, fully treated and fully stabilised during the qualification period. No rating can be assigned for any such condition under the Impairment Tables.
Upper limb tremor or weakness
Dr Liddell reported Mr KTLG complaint of “a slight tremor” in his upper left limb.[55] The doctor did not identify any pathological cause for this alleged symptom or condition – no diagnosis was made and no treatment was suggested.
[55] T28 folio 107.
Dr Flynn reported that Mr KTLG’s impairments include “dropping objects from left > right hand”.[56] The doctor did not provide a diagnosis for this phenomenon and no treatment was suggested.
[56] T29 folio 117.
Whatever the cause of Mr KTLG’s alleged left upper limb tremor, and his alleged difficulty dropping objects, this is not established by evidence, presently.
No rating can be given under the Impairment Tables.
Psychiatric conditions
The evidence of Ms Wright and Dr Shub establishes that Mr KTLG suffers from post-traumatic stress disorder and an anxiety disorder.
Dr Shub recommended psychiatric management and treatment involving pharmacotherapy and psychotherapy for at least six months. It is quite clear that the doctor was uncertain about the extent to which this treatment might produce resolution of Mr KTLG’s psychiatric disorders, but improvement in function was reasonably expected.
Dr Flynn did not refer to treatment of the recommended kinds.
On the present materials, it appears that Mr KTLG did not undergo treatment of the kind recommended by Dr Shub.
Dr Shub report in 2006 that Mr KTLG’s psychiatric conditions were not optimally managed and assignment of permanent psychiatric disability would be premature at that time. Nevertheless, curiously, Dr Shub then proceeded to assign a “current impairment rating” of 20, apparently using the “Social Security Act: Psychiatric Impairment (AMA Guides January 1994)”.[57]
[57] T25 folio 99.
Quite what Dr Shub was referring to, I am not sure. Assessment under the Social Security Act at the time is one thing, whereas assessment under the American Medical Association Guide to the Evaluation of Permanent Impairment is entirely another. In any event, under either instrument, assessment is only permissible in respect of a condition that is found to be permanent according to the applicable criteria.
I will take Dr Shub’s assessment as an indication of Mr KTLG’s psychiatric state at the time. It is not a proper assessment of permanent psychiatric disability and it is in no way binding. And, furthermore, I do not think that Dr Shub’s assessment was intended to be construed in that way. It is quite clear that he considered consideration of permanent psychiatric disability in Mr KTLG’s case was premature at the time.
Even though almost 10 years have passed since Dr Shub recommended psychiatric treatment for Mr KTLG’s psychiatric disorders, in the absence of any more recent psychiatric or clinical psychological assessment, I am not able to conclude that Mr KTLG’s psychiatric conditions have been fully treated or fully stabilised.
It follows that these conditions are not ‘permanent’ conditions for the purposes of the Determination and no rating can be assigned under the Impairment Tables.
Vertigo
Dr Flynn first reported the condition of paroxysmal positional vertigo on 13 April 2014. It is not presently established that this condition has been investigated or treated in any way.
There is not sufficient evidence to determine that the condition was permanent during the qualification period, and whether any impairment at that time was likely to persist without change for two years.
If there is an impairment, it cannot be assigned a rating under the Impairment Tables.
Pes planus
There is radiological evidence dated 13 June 2014 that suggests a partial tear of the right medial band plantar fascia.[58]
[58] T34 folio 194.
It is not presently established whether the subsequent ultrasound recommended by Dr Hamlin was undertaken by Mr KTLG, or whether he obtained any treatment for this condition.
No rating can be given for this impairment under the Impairment Tables.
It can be accepted that Mr KTLG has flat feet (pes planus) and that this is a congenital condition. But the extent of symptoms (he complains of pain) and the nature of impairments caused by this condition are not presently established. The same can be said in respect of medical treatment that may be obtained to effectively manage the impact of the condition on Mr KTLG’s ability to function. The present materials are not sufficient to determine such matters.
Once again, I am unable to assign a rating for impairment caused by pes planus, if any, under the Impairment Tables.
Hallux valgus
Dr Flynn first raised the presence of bilateral hallux valgus on 3 September 2014, outside the qualification period.
It may be that the doctor is correct in his report that this condition was present and symptomatic for some years previously. But this does not assist Mr KTLG’s case. For an impairment rating to be assigned, it must be established that the condition is ‘permanent’ for the purposes of the Determination – it has been fully diagnosed, fully treated and fully stabilised. Simply referring to a painful condition is not sufficient to establish these things.
I am unable to assign a rating for impairment caused by hallux valgus, if any, under the Impairment Tables.
Gallstones
It appears that Mr KTLG has a long history of gallstones. These appear to have been first identified, inadvertently, after the motor vehicle accident in 2005.
Whether this condition has been further investigated or treated in any way is not presently established. Nor is it presently established that this condition was the cause of symptoms or impairment during the qualification period.
I am not persuaded that this condition is fully treated or fully stabilised, and ‘permanent’ for the purposes of the Determination.
No rating can be given under the Impairment Tables.
Fatty liver
There is insufficient material to properly assess this condition for present purposes.
On the present materials, no rating can be given under the Impairment Tables.
Varicose veins
It can be accepted that Mr KTLG suffers from varicose veins in his left lower leg that cause swelling and discomfort on standing, as Dr Flynn reported on 3 September 2014.
But it is not presently established when the varicose veins were diagnosed or what treatment options, if any, have been considered and undertaken.
I am not able to determine whether this condition was fully diagnosed, fully treated and fully stabilised during the qualification period. Furthermore, the extent of any resulting impairment is not presently established.
No rating can be given under the Impairment Tables.
Impairment rating
Considering all of Mr KTLG’s conditions, under the rules of the Determination, his assessable impairments may attract a rating of 10 points under the Impairment Tables.
This may appear to be at odds with the longevity of some of the conditions he suffers and with the extent of functional impairment he alleges with the support of Dr Flynn. But for the reasons I have explained, unless each condition is fully diagnosed, fully treated and fully stabilised it cannot be treated as ‘permanent’ for the purposes of the Determination. Even though I accept that Mr KTLG suffers from disabling conditions, the overwhelming reason the conditions are not able to be considered as ‘permanent’ is that he has not obtained treatment for them that has been recommended by the medical specialists he has consulted. His treating general practitioner, Dr Flynn, who appears to be acting as something of an advocate for Mr KTLG, has not addressed these matters.
If Mr KTLG is suffering from chronic pain and from psychiatric and other symptoms that significantly impair his ability to function, as he and Dr Flynn so strongly assert, there are serious questions about his reluctance to obtain treatment that may alleviate his symptoms and reduce the degree of his impairment. No compelling reason for this reluctance is made out on the present materials – it appears to be simply a matter of Mr KTLG’s choice.
On Dr Shub’s evidence, the possibility exists that Mr KTLG may suffer from organic brain damage as a result of his motor vehicle accident, but this has not been investigated. Mr KTLG’s reluctance to undergo diagnostic tests that may assist Dr Flynn and others to provide him with appropriate treatment is not supported by medical evidence. It may well be that Dr Flynn has formed a clinical opinion about why particular treatments or diagnostic tests or investigations are not appropriate for Mr KTLG in the particular circumstances, but this is not presently established.
Conclusion
Mr KTLG does not meet the requirement of s 94(1)(b) of the Social security Act. If follows that his claim for DSP cannot be granted.
It is not necessary for me to proceed further to consider and determine questions about Mr KTLG’s inability to work. On this point, I simply observe that the assessment of a continuing inability to work is confined to inability resulting from impairments rated under s 94(1)(b). The present materials do not establish that Mr KTLG’s lower limb impairment renders him unfit to do any work within the next two years. Finally on this point, it is not presently established that Mr KLTG has a ‘severe impairment’ for the purposes of s 94(3B) of the Social Security Act and he does not meet the requirement for active participation in a program of support under s 94(2).
For these reasons, his DSP claim cannot be granted.
Decision
The decision under review is affirmed.

I certify that the preceding 174 (one hundred and seventy four) paragraphs are a true copy of the reasons for the decision herein of Mr S. Webb, Member
.....[Sgd]...................................................................
Administrative Assistant
Dated 15 January 2016

Date of hearing Heard on the Papers on 7 January 2016

[20] T21 folios 74-76.

[2016] AATA 11

15 January 2016

Key Legal Topics

Areas of Law

Social Security Law

Legal Concepts

Disability Support Pension

Impairment Rating

Medical Evidence

Qualification Criteria for DSP

Premance of Conditions

Division	GENERAL DIVISION
File Number(s)	2015/2997
Re	KTLG
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Mr S. Webb, Member
Date	15 January 2016
Place	Perth