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

Kyritsis and Secretary, Department of Social Services (Social services second review) [2019] AATA 4253 (21 October 2019)
Division:GENERAL DIVISION
File Number: 2017/4205
Re:Stephanos Kyritsis
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member R. Pintos-Lopez
Date:21 October 2019
Place:Melbourne

The Tribunal affirms the decision under review.
........[sgd]... ............................................................
Senior Member R. Pintos-Lopez
Catchwords
SOCIAL SECURITY – disability support pension – whether fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under the Impairment Tables – indefinite portability not considered – decision affirmed
Legislation
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999 (Cth)
Workplace Injury Rehabilitation and Compensation Act 2013 (Cth)
Cases
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security Guide Version 1.257
REASONS FOR DECISION
Senior Member R. Pintos-Lopez

Mr Kyritsis (the Applicant) seeks review of a decision of the Social Services and Child Support Division, dated 22 June 2017, that affirmed the decision of an Authorised Review Officer (ARO), dated 27 February 2017,[1] to cancel his disability support pension pursuant to s 80 of the Social Security (Administration) Act 1999 (Cth) (the Administration Act).
[1] That decision affirmed an earlier decision, dated 11 January 2017.
For the reasons that follow the decision is affirmed.
ISSUES
The principal issue to be determined in this application is whether the Applicant was qualified for a disability support pension at the cancellation date which was on 11 January 2017 (the cancellation date) by reason of s 94 of the Social Security Act 1991 (Cth) (the Act). That principal issue, in turn, requires consideration of whether, as at the cancellation date:
(a)the Applicant had any physical, intellectual or psychiatric impairment(s); and
(b)whether the Applicant’s impairment(s) warranted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables); and
(c)the Applicant had a continuing inability to work.
(d)If so, consideration must be given to whether the Applicant’s maximum portability period for disability support pension was an unlimited period.
BACKGROUND
The Applicant is 66 years old.
On 26 July 2007, the Applicant applied for the disability support pension.
On 22 August 2008, the Applicant was granted the disability support pension for chronic pain and rotator cuff injury.
On 12 July 2016, the Applicant advised Centrelink that he was planning to go to New Zealand indefinitely and requested an assessment of his medical conditions to see if he qualified for indefinite portability.
On 14 July 2016, Centrelink wrote to the Applicant following his enquiry about going overseas for longer than the maximum portability period and notified him that his eligibility for the disability support pension would be reviewed. The Applicant agreed to undergo medical review of his disability support pension qualification. In order to do so, the Applicant provided Centrelink with a disability support pension medical review form completed by his general practitioner, Dr John Wiseman, dated 25 August 2016.
On 9 January 2017, a Job Capacity Assessment report found that the Applicant's musculo-skeletal disorder was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 3 - Lower Limb Function. That assessment also found that the Applicant’s shoulder and upper arm disorder was fully diagnosed, treated and stabilised but did not attract any impairment rating under Table 2 - Upper Limb Function.
On 11 January 2017, a Centrelink employee made a decision to cancel the Applicant’s disability support pension, as he was not considered to be medically qualified for this payment.
On 23 January 2017, the Applicant requested an internal review of that decision.
On 27 February 2017, an ARO of Centrelink affirmed the original decision to cancel the Applicant’s disability support pension. The review officer found that the Applicant’s right lateral hip greater trochanter pain was fully diagnosed, treated and stabilised and that it attracted an impairment rating of 5 points under Table 3 – Lower Limb Function, and that his chronic severe capsulitis of the right shoulder with osteoarthritis and secondary tendon tears were also fully diagnosed, treated and stabilised but did not attract any impairment points under Table 2 – Upper Limb Function. A meeting note prepared by the ARO set out the reasons for that decision.
The ARO also found that the Applicant did not meet the severe impairment requirements for indefinite portability and did not have a continuing inability to work.
On 6 March 2017, the Applicant applied to the Tribunal for an independent review of Centrelink’s decision.
On 22 June 2017, the Social Services and Child Support Division of the Tribunal conducted a hearing at which the Applicant gave evidence in person. The Tribunal affirmed the decision to cancel the Applicant’s disability support pension on the basis that the Applicant’s conditions did not attract a sufficient rating under the Impairment Tables. The Tribunal did not make any findings regarding whether the Applicant had a continuing inability to work or whether he met the requirements for indefinite portability.
On 18 June 2017, the Applicant applied for review of the Tribunal’s decision.
On 2 February 2018, a further Job Capacity Assessment Report determined that the Applicant's:
(a)right hip condition was fully diagnosed, treated and stabilised and attracted an impairment rating of 5 points under Table 3 - Lower Limb Function;
(b)right shoulder condition was fully diagnosed, treated and stabilised and attracted an impairment rating of 0 points under Table 2 - Upper Limb Function;
(c)spinal condition was not fully diagnosed, treated and stabilised and was unable to be assigned an impairment rating; and
(d)renal cancer was fully diagnosed but not fully treated and stabilised.
RELEVANT PRINCIPLES
In order to qualify for the disability support pension, the Applicant must satisfy the requirements under s 94 of the Act. Section 94(1) of the Act provides:
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;
(ii) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and
(d) the person has turned 16; and
(da) in a case where the following apply:
(i) the person is under 35 years of age or is a reviewed 2008‑2011 DSP starter;
(ii) the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii) if the person has one or more dependent children—the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i) is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii) has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii) is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i) the person is an Australian resident;
(ia) the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii) the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Accordingly, the Applicant will be qualified for the disability support pension if:
(a)he has a physical, intellectual or psychiatric impairment;
(b)that impairment(s) attract(s) an impairment rating of 20 points or more from the Impairment Tables; and
(c)he has a “continuing inability to work”.
The Impairment Requirement
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables Determination).
The Impairment Tables Determination contains instructions and rules for assessing impairment and the assignment of a rating. The impairment scale ranges from zero to thirty.[2]
Fully diagnosed, treated and stabilised
[2] The Respondent contends that the Applicant’s qualification for disability support pension must be assessed in accordance with the Impairment Tables, in force from 1 January 2012 by reason of a notice provided to the Applicant as a form to be completed entitled “Medical Report Disability Support Pension - Review for portability” under s 63(4) of the Administration Act.
An impairment rating can only be assigned to a medical condition that is permanent. Permanent, for the purposes of the Impairment Tables Determination, means a condition that is fully diagnosed, fully treated and fully stabilised and likely to persist for more than two years: s 6(4) of the Impairment Tables Determination.
The requirement that the condition be fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: s 6(6) of the Impairment Tables Determination.
Section 6(6) of the Impairment Tables Determination provides that a condition is fully stabilised if:
(a)the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement enabling the person to undertake work within the next two years; or
(b)the person has not undertaken reasonable medical treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result, even if the person undertakes reasonable medical treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
In order to determine whether a condition is fully diagnosed and fully treated, the Tribunal ought to consider:
(a)whether the condition has been fully diagnosed by an appropriately qualified doctor;
(b)what treatment or rehabilitation has occurred; and
(c)whether treatment of the condition is still continuing or is planned in the next two years: s 6(5) of the Impairment Tables Determination.[3]
Continuing inability to work
[3] See e.g. Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33].
A person has a continuing inability to work if a person's impairment is in and of itself sufficient to prevent them from doing any work independently of a program of support, or undertaking a training activity, within the next 2 years.
EVIDENCE AND APPLICATION
The issues to be determined in this application, having regard to the evidence, are whether on 11 January 2017:
(a)the Applicant had a physical, intellectual or psychiatric impairment;
(b)the Applicant had a diagnosed condition that had been investigated, treated and stabilised, and was likely to continue for at least two years.
(c)If so, whether an impairment rating amounted to at least 20 points on the Impairment Tables; and
(d)whether the Applicant had a continuing inability to work.
(e)Finally, whether the Applicant satisfied the requirements for indefinite portability.
The Applicant gave evidence at the hearing. The evidence provided to the Tribunal for the purposes of this application included a number of medical reports.
Many of these medical reports were prepared for purposes other than the present application. Many of the medical reports considered below, are outside of the Applicant’s qualification period. Evidence such as medical reports that were prepared after the qualification period, I find are relevant insofar as they may cast light on the Applicant’s medical condition during the qualification period: see Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1], per Gyles J, ReFanning and Secretary, Department of Social Services [2014] AATA 447 at [31]; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Whether the Applicant suffered a physical, intellectual or psychiatric impairment
Section 94(1)(a) provides that a person is qualified for disability support pension if the person has a physical, intellectual or psychiatric impairment.
The Respondent accepts that the Applicant satisfied s 94(1)(a) of the Act on the basis that he had a number of impairments as at 11 January 2017, arising from:
(a)right hip and groin conditions;
(b)right shoulder condition; and
(c)spinal condition.
On the basis of the evidence, I find that, at the relevant time, the Applicant suffered a physical impairment, which showed that he had, at least, a right hip and groin condition, a right shoulder condition and a spinal condition.
The evidence shows that the Applicant had a number of conditions which, in particular, will be considered below in relation to the impairment ratings attributable to those conditions. The relevant conditions are in relation to the Applicant’s:
(a)right hip and groin;
(b)right shoulder;
(c)spine; and
(d)renal cancer.
Whether the Applicant’s impairments attracted 20 points or more on the Impairment Tables
Section 94(1)(b) of the Act provides that a person is qualified for disability support pension if the person’s impairment is of 20 points or more under the Impairment Tables.
Right shoulder condition
On 8 August 2006, Dr John Wiseman signed a Centrelink form entitled “Treating Doctor’s Report” in relation to the Applicant. Dr Wiseman stated the Applicant suffered from the conditions of chronic shoulder capsulitis and complex regional pain syndrome.
In relation to the shoulder condition, he stated that the Applicant’s symptoms were moderately severe and intermittent and that the right shoulder pain prevented him from full usage. In terms of the effect on the Applicant’s ability to function, he stated that the Applicant had limited usage of his right shoulder and arm during acute episodes involving lifting and shoulder function endurance.
In relation to the second condition, Dr Wiseman stated that the Applicant was subject to recurrent bouts of right-sided body pain and weakness with limited function on an intermittent basis. In terms of the effect on the Applicant’s ability to function he stated that the condition intermittently limits his ability to perform tasks involving his right arm and leg but that he was able to self-care.
On 27 November 2006, Dr Andrew Daff, Sports and Exercise Physician, prepared a letter stating that the Applicant had presented with less severe recurrence of his right shoulder pain and stiffness. He stated that the Applicant “felt fantastic” for approximately four months after the last hydro dilatation. He stated that the Applicant probably has a low-grade recurrence of capsulitis but that he may also have an element of osteoarthrosis.
On 19 July 2007, Dr Wiseman provided a further Treating Doctor’s Report stating that the Applicant’s severe right shoulder condition had not improved and would impact on his ability to function in day to day activities for more than 24 months.
On or around August 2007, a Job Capacity Assessment Report was prepared in relation to the Applicant and considered his rotator cuff injury and chronic pain. The report stated that the Applicant’s conditions were fully diagnosed, treated and stabilised. It stated that the Applicant’s future capacity for work within two years with or without intervention was 8 to 14 hours per week.
The report outlined the Applicant’s serious shoulder injury in 2002. It stated that Dr Wiseman had reported that the condition was as a result of a workplace injury in which the Applicant incurred a full thickness tear of the rotator cuff in his right shoulder and combined with capsulitis resulted in severely restricting his range of movement and, further, constant shoulder pain which exacerbated on movement. Dr Wiseman also reported that the Applicant was experiencing complex regional pain syndrome. The condition resulted in intermittent but regular moderate to severe pain down the right side of the Applicant’s body.
On 7 September 2007, Dr Timothy Godfrey, a rheumatologist, provided a report to Dr Wiseman. He stated that the Applicant continued to struggle with his right shoulder, right cervical, lumbar and right leg pain. He stated that the latter can extend from the Applicant’s back to his ankle and be associated with numbness in his right toes. He stated that the recent x-ray of the Applicant’s lumbar spine was unremarkable. The magnetic resonance imaging of his shoulder showed tears in the supraspinatus, infraspinatus and subscapularis tendons along with very mild thinning of the glenohumeral cartilage. He stated that there was no evidence of a labral tear.
On the basis of the evidence and the medical reports, I find that the Applicant’s right shoulder condition was fully diagnosed, treated and stabilised as:
(a)the condition had been fully diagnosed and treated from at least 2006 with the concomitant, supported by the Applicant’s evidence provided to his medical practitioners and the nature of the injury, which meant that the condition was fully stabilised.
(b)The August 2007 and 2018 Job Capacity Assessment Reports, which although are not determinative, as they do obviate the need for me to make a finding, assist me in making such a finding inasmuch as those particular assessments by others, on the basis of the medical reports, assists by inference that the condition was fully diagnosed, treated and stabilised.
Table 2 entitled “Upper Limb Function” applies to the Applicant’s right shoulder condition. That table is to be used where a person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms. On the basis of the evidence and the medical reports, I find that the Applicant’s right shoulder condition attracts five points on Table 2 which applies where there is a mild functional impact on activities using hands or arms. None of the evidence or medical reports indicated that the Applicant had a moderate functional impact on activities using hands or arms, as the Applicant could not be shown to have difficulty with most of the following:
(a)picking up a 1 L carton full of liquid;
(b)picking up a light but bulky object requiring the use of two hands together (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard; and
(f)unscrewing a lid on a soft drink bottle.
Right hip and groin conditions

On 28 September 2007, Dr Wiseman provided a letter in order to clarify an issue raised by the Applicant’s solicitors. He stated that it was his firm view and belief that the Applicant’s acute bursitis of the right hip with secondary sciatica had a relationship with, and was in part the product of and aggravation of, the original incident in May 2002. This, he stated, was manifest as a late effect of the 2002 event.
In December 2013, the Applicant was involved in a car accident. In oral evidence, he stated that he had been hit by another car on the right-hand side of his car following which he went to hospital and was told that there was nothing serious resulting from the crash. The Applicant stated that after a few months he could not walk properly.
The evidence contains a document listing a number of surgery consultations recorded by Dr Gayathri Thavarasah, Dr Wiseman and Vanessa Price from 16 December 2013 until 25 February 2015. The reports from Dr Wiseman contain reasons for the visit including sciatic pain, right lumbago, and severe right hip dysfunction. The reports refer to the various consultations with those doctors including the provision of prescriptions.
On 10 February 2014, a report from Radar Medical Imaging was provided to Dr Sung-He Moon in relation to the Applicant following an ultrasound and x-ray in relation to his right hip. The report concluded in relation to the ultrasound that the Applicant had mild trochanteric bursitis.
On 13 May 2014, Dr Paul Menssink provided a report to Dr Wiseman in relation to a pelvis ultrasound performed on the Applicant. The report stated in relation to its findings:
There is a small direct inguinal hernia consisting entirely of fat measuring 30 x 23 x 20mm which is fully reducible and not tender to probe pressure.
The adductor insertion is normal and there is no hip joint effusion.
No inguinal lymphadenopathy.
At the right lateral hip there is a tear of the gluteus medlus tendon measuring 5mm. The gluteus minimus tendon is thickened consistent with tendinopathy. There could be a fibrosed old intrasubstance tear measuring 8mm.
There is fluid within the greater trochanteric bursa which corresponds to a region of interest.
The report concluded:
1. Fully reducible right direct inguinal hemia.
2. Gluteus medius partial tear and gluteus minimus tendinopathy.
3. Greater trochanteric bursopathy.
4. Amenable to sonographically guided bursal cortisone Injection.
On 27 May 2014, Dr Daff provided a letter to Dr Wiseman. He stated that it was reasonable to attempt to improve the Applicant’s pain situation by offering a cortisone injection, which could be done under ultrasound guidance.
On 11 June 2014, Dr Daff provided a further letter stating that the Applicant had improved with respect to his right greater trochanter pain and that he felt that the injection had been beneficial. Dr Daff stated that the Applicant still had anteromedial right groin pain and anterior right thigh and shin pain. He stated that he suspected that the latter pains related to evolving osteoarthritis of the Applicant’s right hip joint.
On 12 June 2014, Dr Pik Si Chan provided Dr Daff with a report in relation to the Applicant’s pelvis and right hip. He noted severe right hip joint osteoarthritis and markedly narrow joint space, subarticular bone sclerosis and degenerative bone cysts at the weight-bearing region of the right hip.
On 26 June 2014, Dr Daff provided a letter to Dr Wiseman. He stated that the right hip x-rays demonstrated a severely degenerative joint. He stated that the Applicant was struggling to walk any significant distance and found that his symptoms were worse when he stood on hard surfaces. He stated that the Applicant was also having some anterior right thigh pain and lateral right leg pain. He stated that, in his opinion, the major pain producing issue for the Applicant was his osteoarthritic right hip joint. He stated that he had explained to the Applicant that the arthritis was not caused directly by the accident and would have been pre-existing, but that it was reasonable that the arthritic joint had been aggravated and had become symptomatic secondary to the impact.
On 24 July 2014, Dr Daff provided a report directed to the Transport Accident Commission and stated that:
On 16 December last year Mr Kyritsis was involved in a motor car accident following which he was taken by ambulance to Box Hill Hospital where x-rays showed no fracture. He had subsequent right hip region pain with ultrasound suggestive of trochanteric bursitis and gluteal tendinopathy. He complained of constant lateral right hip pain worse with walking and standing on hard surfaces. He was waking at night. He has had pain in the anterior right shin and anterior right quad. He was treated with physiotherapy, Celebrex and Panadol Osteo.
Mr Kyritsis first sought my opinion on 27 May this year at which time I felt his lumbar spine examined reasonably well and was not contributing to his leg pain. More significantly be had very asymmetrical decreased range of movement in his right hip with positive quadrant. He did have quite marked tenderness over his right greater trochanter.
Mr Kyritsis has responded well to a greater trochanter corticosteroid injection in respect to much less specific lateral hip pain but his groin pain, posterolateral hip pain and leg pain persists. His x-rays show a significantly degenerative right trip joint.
I believe that Mr Kyritsis’s symptoms relate to his arthritic hip joint, the arthritis pre-dating his motor car accident but being aggravated by the trauma. Given that Mr Kyritsis is struggling with regard to symptoms and function, I have referred him to Mr Robert Steele for an opinion with regard to right hip joint replacement.
On 30 July 2014, orthopaedic surgeon Robert Steele wrote a letter to Dr Daff which stated:
Examination shows that he walks with an antalgic gait. He has a positive Trendelenberg test on the right side. His hip is stiff and irritable to examination. He is approximately 1 cm short on that side.
His x-ray confirms sever osteoarthritis of the joint with bone on bone articulation superiorly.
He would do well with a total hip replacement and I have gone through that surgery with him today including the risks and complications.
On 5 November 2014, Dr Anthony Cullen provided a report in relation to an x-ray and CT right hip scan of the Applicant concluding that:
There is no lumbar spondylosis. No malalignment. No fracture.
In around December 2014, the Applicant had an operation on his hip. The Applicant stated in oral evidence that prior to the operation he could not lift his right leg more than 15cm to 20cm because of pain in his groin. He stated that the operation was successful in relation to his hip but not in relation to his groin.
On 15 January 2015, Mr Steele wrote to Dr Wiseman stating that he had reviewed the Applicant six weeks following the right total hip replacement from which the Applicant had made a very good recovery. He stated that the Applicant had no pain in his hip but described a nerve type pain in the medial aspect of his thigh which was there prior to surgery. The Applicant also told Mr Steele that his knee pain continued with a clicking though it had improved. Mr Steele stated that he had spoken to the Applicant about a return to work and that in terms of his hip that “I would be happy for him to return to full manual work duties at approximately the four month mark following his surgery.”
On 22 July 2015, Dr Daff provided a report in response to a request from the Applicant’s solicitors confirming his prior diagnosis.
On 2 August 2015, Dr Wiseman provided a letter to the Applicant’s solicitors. He stated that the Applicant’s “capacity for work now and in future should occur though there may be some restrictions on full functional capacity… At this stage no further specific treatment is required or anticipated with good purposes.”
On 17 November 2015, Murray Stapleton, plastic and hand surgeon, provided a report from a referral from the Applicant’s solicitors in relation to the Applicant’s scar following surgery.
On 3 February 2016, Dr Gary Zimmerman wrote to Dr Wiseman reporting on the cortisone injection given to the Applicant and stated that four weeks post injection it had not made much difference to the Applicant’s ongoing pain.
On 7 March 2016, Dr Wiseman wrote to the Applicant’s solicitors in relation to treatment for the Applicant’s conditions.
On 3 May 2016, Dr Nathan Serry, a consultant psychiatrist, provided a report to the Applicant’s solicitors and to the Transport Accident Commission. He stated in relation to the Applicant’s prognosis that:
Your client's prognosis is mixed. He appears to have been reasonably well-adjusted premorbidly despite a number of injuries. He seems to have coped adequately with the 2003 motor vehicle accident but the more recent accident has effected him considerably given ongoing pain and limitations.
On 10 May 2016, Mr Rodney Simm, orthopaedic surgeon, provided the Applicant’s solicitors and the Transport Accident Commission an independent medico – legal assessment. Mr Simm’s diagnosis concluded:
It has been suggested that the pain in the medial groin and thigh relates to the back. I do not believe this is the correct diagnosis. The MRI scan of the lumbar spine shows no pathology likely to cause medial groin or thigh pain. Examination of the thoracolumbar spine is essentially normal. The femoral stretch test is negative. He has some residual mild lumbar pain, but no clinical signs of lumbar injury or radiculopathy.
In relation to the Applicant’s capacity for work, Mr Simm stated:
He has no capacity for work. He has been on the Disability Support Pension since 2008.
In terms of ongoing treatment, Mr Simm stated:
He requires ongoing orthopaedic review. I am not clear as to what investigations have been undertaken in relation to the right total hip replacement. I do not expect an injection into the region of the right L4-5 neural foramen will have anything more than a placebo effect, as pathology at this level could not explain his symptoms.
He requires ongoing symptomatic treatment for the persistent pain.
On 18 May 2016, Mr Simm provided a supplementary report stating that a proposed transforaminal injection was not likely to effectively treat the injury or condition which related to the transport accident.
On 14 July 2016, as noted above, Centrelink wrote to the Applicant following his enquiry about going overseas for longer than the maximum portability period. The Applicant agreed to undergo medical review of his disability support pension qualification.
On 21 September 2016, the Applicant’s solicitors wrote to the Applicant to advise him that the Transport Accident Commission had accepted his application and granted him a serious injury certificate.
On 11 October 2016, the Transport Accident Commission wrote to the Applicant advising him that it had determined that his level of impairment was at 26%.
On 9 January 2017, a Job Capacity Assessment Report was prepared referring to several of the earlier medical reports. The primary diagnosis confirmed by Dr Daff was right lateral hip greater trochanter pain. The condition was assessed, given that no further treatment recommendations were being made, as permanent, fully diagnosed, treated and stable. On the basis of the medical reports, the report assessed the Applicant as unable to satisfy the points-based criteria. It assessed the Applicant as having 0 to 7 hours per week of temporary work capacity, 8 to 14 hours per week of baseline work capacity and 15 to 22 hours per week within two years with intervention.
On the basis of the evidence, including the medical reports, I find that the Applicant’s right hip and groin conditions were fully diagnosed, treated and stabilised. I find so on the reasoning set out above, in relation to the Applicant’s right shoulder condition, being that the Applicant had received significant amounts of treatment from at least the beginning of 2014. I rely, similarly, on the August 2007, January 2017 and 2018 Job Capacity Assessment Reports.
Table 3 entitled “Lower Limb Function” applies to the Applicant’s right hip and groin conditions. On the basis of all of the evidence, including the medical reports, I find that the Applicant’s right hip and groin conditions rate no more than five impairment points under Table 3. Table 3 provides that at least one of the following must apply in order to attract a rating of 10 impairment points:
(a)the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or
(b)the person is unable to use stairs or steps without assistance; or
(c)the person is unable to stand for more than five minutes.
Among other things, I find that it cannot be said that the Applicant’s conditions attract a 10 point impairment rating as none of these apply to the Applicant.
Spinal condition
As noted above, on 10 May 2016, Mr Simm, orthopaedic surgeon, provided the Applicant’s solicitors and the Transport Accident Commission an independent medico – legal assessment. Mr Simm noted that the Applicant had undergone medical resonance imaging in March 2016. He stated that the Applicant’s:
main injury was the aggravation of the osteoarthritis of the right hip, treated by a total hip replacement. More recently his main concern is the persistent pain radiating from the groin, down the inner aspect of the thigh, which he has been told by his treating doctors is due to a pinched nerve in the back. He has some persistent intermittent back symptoms, which he believes to be accident related.
In addition, the consultation notes of Dr Tharvarsah, dated 16 December 2013, refer to the Applicant’s pain in his lower back.
On the basis of the evidence before the Tribunal, I find that the Applicant’s spinal condition was fully diagnosed, treated and stabilised as the medical evidence supports a finding that the Applicant’s spinal condition was related to, and in some regards a concomitant condition to, his right hip and groin conditions. Table 4 entitled “Spinal Function” applies to the Applicant’s spinal condition. On the basis of the evidence, including the medical reports, I find that the Applicant’s condition does not attract more than five points as it cannot be said that the Applicant cannot sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)the person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b)the person has difficulty moving their head to look in all directions (e.g. turning their head to look over the shoulder); or
(c)the person is unable to bend forward to pick up a light object placed at knee height; or
(d)the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
Renal cancer
On 19 January 2018, a further Job Capacity Assessment Report was prepared that considered conditions in relation to the Applicant’s lower limb deficiencies, shoulder and upper arm disorder, spinal disorder and renal cancer tumour. The report confirmed the work capacity assessments of the earlier report on 9 January 2017. The report was requested because of the Applicant’s appeal to the Tribunal and it considered further medical evidence from Dr Wiseman in the form of a report dated 6 November 2017.
The evidence contained a radiology report from Cabrini Pathology, dated 9 November 2017, and concerned a biopsy of the right renal lesion showing features consistent with clear cell renal cell carcinoma. The Job Capacity Assessment Report from 2018 refers to the cancer treatment.
On the basis of the evidence, I find that the Applicant’s cancer was not fully diagnosed, treated and stabilised. In addition, there was no evidence to indicate whether the Applicant attracted any points under the Impairment Tables.
Whether the Applicant had a continuing inability to work
Section 94(1)(c) of the Act provides that a person is qualified for disability support pension if, among other things, the person has a continuing inability to work.
I have found that the Applicant’s conditions attract 10 impairment points on the cancellation date and, accordingly, the Applicant is not qualified for a disability support pension. On that basis, I am not required to consider whether or not the Applicant had a continuing inability to work.
However, had I found that the Applicant’s conditions did attract at least 20 impairment points on the cancellation date, then I would have found that the Applicant did not have a continuing inability to work for 15 hours per week for the purposes of s 94(2)(a) of the Act. This is on the basis of my own assessment of the evidence, including the Job Capacity Assessment reports of January 2017 and February 2018 that found that the Applicant had a baseline capacity of 8 to 14 hours per week with an increase to 15 to 22 hours per week within two years with intervention.
Whether the Applicant satisfied the requirements for indefinite portability
As I have found that the Applicant was not qualified for disability support pension it is not necessary for me to consider whether the Applicant’s maximum portability period for disability support pension is an unlimited period: s 1218AAA of the Act.
However, the evidence establishes that the Applicant’s impairment did not prevent him from performing any work independently of a program of support as provided under s 94(4) of the Act within the next five years.
DECISION
The Tribunal affirms the decision under review.

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

...[sgd]...................................................................
Associate
Dated: 21 October 2019

Date of hearing: 12 June 2018

Representative for the Applicant: Self-represented

Solicitor for the Respondent: Marie-Elaina Bakas
Sparke Helmore

[2019] AATA 4253

21 October 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	12 June 2018
Representative for the Applicant:	Self-represented
Solicitor for the Respondent:	Marie-Elaina Bakas Sparke Helmore