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

Ladley and Secretary, Department of Social Services (Social services second review) [2019] AATA 546 (26 March 2019)
Division:GENERAL DIVISION
File Number: 2018/0419
Re:Shirley Ladley
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:26 March 2019
Place:Brisbane

The Tribunal affirms the decision under review
..............................[SGD]...................................
Senior Member P J Clauson
Catchwords
SOCIAL SECURITY – Disability Support Pension – mental health condition – dysthyroidism – chronic obstructive airways disease – hypertension – hypercholesterolemia – whether impairments are of 20 points or more under the impairment tables – whether permanent conditions contributed to a real degree to impairments – Applicant has 10 points – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AAT 922
Fanning and Secretary, Department of Social Services (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Pignat and Secretary, Department of Social Services (Social services second review) [2017] AAT 2745
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
26 March 2019
INTRODUCTION

On 20 March 2017, Ms Shirley Ladley (“the Applicant”) applied for the Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T18, Claim for DSP, dated 20 March 2017, pages 70-100.
On 19 July 2017, the Department of Human Services (“Centrelink”) advised the Applicant that her application had been rejected.[2]
[2] Exhibit 1, T Documents, T21, Rejection of DSP, dated 19 July 2017, pages 111-112.
On 12 November 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed on 11 January 2018.[3]
[3] Exhibit 1, T Documents, T2, SSCSD Decision, dated 11 January 2018, pages 4-8.
Following this, the Applicant sought a second tier review of her matter by the General and Other Divisions of this Tribunal, by way of an Application dated 23 January 2018.[4]
[4] Exhibit 1, T Documents, T1, Application for Review, dated 23 January 2018, pages 1-3.
The finding from these abovementioned decisions is that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for the DSP, and did not have a continuing inability to work.
The Applicant appeared in person before this Tribunal on 7 August 2018, for a hearing in relation to this application.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 20 March 2017, or within 13 weeks thereafter, being up until 19 June 2017 (“Relevant Period”).
BACKGROUND
On the Applicant’s DSP Claim Form she listed the following disabilities, illnesses or injuries:
“Hashimotos. Tyroidectomy High B:P[.] Bruising when Bump myself. Thin skin & Bleeds when Broken. Weakness[.] Sore Bone’s That ache all the time[.] light headed. Poor thinking fuzz head. tried (sic) all the time need to rest during the day.”[5]
[5] Exhibit 1, T Documents, T18, Claim for DSP, dated 20 March 2017, page 96.
On 2 May 2017, the Applicant attended an assessment with a Job Capacity Assessor (“JCA”), who subsequently produced a report dated 22 May 2017.[6] The JCA assessed the Applicant’s conditions as follows:
(a)Terminal Dysthyroidism;
(b)Chronic Obstructive Airways Disease (“COAD”);
(c)Hypertension; and
(d)Reactive Depression.
[6] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, pages 102-110.
The total Impairment Rating recommended by the JCA for the reported conditions was 0 points.[7]
[7] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, pages 102-110.
Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as being

8 – 14 hours per week, with a predicted capacity of 15 – 22 hours per week within 2 years with intervention.[8]
[8] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, page 108.
The ARO, upon review of the JCA report and additional other relevant evidence provided to Centrelink, made the following findings of fact:[9]
Findings of Fact
After careful consideration of the evidence, I have made these key findings:
·Your conditions of hypothyroidism/terminal dysthyroidism, chronic obstructive airways disease, hypertension and stress/reactive depression are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is 0.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
[9] Exhibit 1, T Documents, T24, ARO Decision, dated 6 November 2017, page 119.
The SSCSD agreed with the JCA and ARO and found that the Applicant’s conditions did not attract any Impairment Rating points under the Impairment Tables.
ISSUES
The issues for this Tribunal to consider are:
(a)whether during the Relevant Period, the Applicant had a medical impairment which was fully diagnosed, fully treated and fully stabilised;
(b)whether at the Relevant Period, the Applicant’s conditions caused a functional impairment that attracts an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant had a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991
(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
In order for the Applicant to qualify for the DSP, certain relevant criteria set out in section 94 of the Act must be met:
(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)the person has a continuing inability to work.
The Administration Act provides that qualification for DSP and assessment of the relevant Impairment Rating is to be determined as at the date of claim. The exception to this arises where the Applicant has not met the qualifying conditions as at the date of the application for the DSP, but became qualified 13 weeks following the date of claim.[10] There has been consensus by the Tribunal and the Federal Court that there is a requirement to assess the Applicant during this specific period of time, unless material outside of this period can be considered referable to the period.[11]
[10] Administration Act s 41, 42; cl 3 and cl 4(1), Schedule 2, Part 2.
[11]Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, at [25]-[28].
Pursuant to section 26 of the Act, the Impairment Ratings are determined under a legislative instrument located in the Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth)
(“the Impairment Determination”).
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[12] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[13] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[14]
[12]        Impairment Determination, s 5(1) and s5(2).
[13]        Impairment Determination, s 5(2).
[14]        Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[15]
[15] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[16]
[16] Impairment Determination, s 6(5).
A condition will be considered 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.[17]
[17] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[18]
[18] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[19]
[19] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if the person's impairment attracts 20 points or more under a single Impairment Table.[20]
[20] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, all criteria set out in section 94(2) of the Act must be met.
CONSIDERATION
The Applicant suffers from conditions that affect her mental health and physical exertion and stamina. It is not in dispute that she has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[21] The questions to be determined by this Tribunal are however, whether or not during the Relevant Period those impairments attracted an impairment rating of 20 points or more under the Impairment Tables,[22] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[21] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 17.
[22] The Act, s 94(1)(b).
The Tribunal will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables.
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Functions requiring Physical Exertion and Stamina – Table 1
Table 1 of the Impairment Tables relates to functions requiring physical exertion and stamina. The introduction to Table 1 provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.[23]
[23] Impairment Determination, Part 3 – The Tables, Table 1 – Functions requiring Physical Exertion and
Stamina.
The Applicant suffers from Hashimoto’s disease, chronic obstructive airways disease and hypertension and hypercholesterolemia conditions. The evidence before the Tribunal is that these conditions may cause functional impairment relating to physical exertion and stamina.
The Impairment Determination requires that 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.[24]
[24] Impairment Determination, section 10(5).
As an impairment rating can only be assigned where conditions are considered to be permanent[25] the Tribunal must first be satisfied that the conditions are fully diagnosed, fully treated and fully stabilised and likely to persist for 2 years.[26]
[25] Impairment Determination, section 6(2).
[26] Impairment Determination, section 6(4).
The Tribunal will consider whether each of the conditions can be considered in relation to assigning an impairment rating under Table 1 in turn.
Hashimoto’s Disease
The Respondent concedes that the Applicant’s Hashimoto’s Disease, (sometimes referred to as terminal dysthyroidism) was fully diagnosed.[27] Having regard to the evidence available to me, the Tribunal accepts that this condition is fully diagnosed. However, the Respondent contends that the condition was not fully treated or stabilised at the Relevant Period as she had not consulted an appropriate specialist to engage in reasonable treatment, which was likely to result in a functional improvement.[28]
[27] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 32.
[28] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 34-35.
The Respondent relies on the various medical certificates from Dr Lean, the Patient Health Summaries (‘PHS’) and the JCA reports to support their contention, as they indicate that the Applicant had not sought specialist intervention by the Relevant Period.[29] A medical certificate dated 9 May 2016 completed by Dr Lean, indicates that the Applicant had previously undergone surgery and had used medication to treat the condition in the past, however did not detail any current or future treatment.[30] At Hearing the Applicant confirmed that she had her thyroid removed in order to treat the condition.
[29] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 30.
[30] Exhibit 1, T Documents, T11, Medical Certificate by Danny Lean, dated 9 May 2016, page 55.
The PHS’ describe the Applicant’s condition as ‘persisting poor thyroid situation and thyroidectomy’ and ‘dysthyroidism’ as at 19 February 2016[31] and 21 April 2016[32] respectively. Both PHS’ confirm that the Applicant was taking Oroxine to maintain this condition. In the medical certificate dated 24 April 2017, Dr Lean confirmed that the condition was permanent and future treatment only involved ongoing monitoring of thyroid function.[33]
[31]          Exhibit 1, T Documents, T7, Patient Health Summary by Moreton Medical Centre, dated
19 February 2016, page 51.
[32]          Exhibit 1, T Documents, T10, Patient Health Summary by Dr Danny Lean, dated 21 April 2016,
page 54.
[33]          Exhibit 1, T Documents, T19, Medical Certificate of Dr Danny Lean, dated 24 April 2017, page 101.
The JCA report of 22 May 2017 noted that:[34]
“The condition of terminal dysthyroidism is not considered to be fully diagnosed, treated and stabilised. There is no available evidence to suggest that the customer has engaged in reasonable treatment such as an Endocrinologist review despite ongoing instability in her thyroid levels”.
[34] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, pages
102 to 110.
The JCA also noted that they had attempted to contact the Applicant’s treating doctor in order to obtain an up-to-date overview of the treatment provided to the Applicant, however was unsuccessful in this.[35]
[35] Exhibit 1, T Documents T20, JCA Report, dated 22 May 2017, page 155.
The JCA’s report of 7 July 2017 is also relied upon by the Secretary to support their contention that the condition was diagnosed and permanent but not fully treated and stabilised as the report states:[36]
“It does not appear the client has consulted a specialist for some time despite her thyroid levels remaining unstable. She may benefit from an Endocrinologist review to ensure optimal management of the condition. Given the level of functional impairment reported by the client, exhaustion of full treatment options is warranted”.
[36] Exhibit 1, T Documents, T12, JCA Report, dated 7 July 2016, pages 56 to 64.
The decision of the ARO dated as at 6 November 2017 states, relevantly:[37]
“You informed me that you have consulted with an Endocrinologist approximately two months ago and you have a next appointment with them on 14 November 2017 and you indicated that your specialist told you the condition is well managed by your GP. You indicated to me that you did get a report from your specialist that supports that. However, there is no medical report from your specialist provided to the department and I encourage you to get one or get a copy from your GP and follow-up with the department”.
[37] Exhibit 1, T Documents, T24, ARO Decision, dated 6 November 2017, pages 118-126.
At Hearing, the Applicant gave evidence that Oroxine/Thyroxine was the only treatment for the Hashimoto’s disease condition. The Applicant stated that she requires constant blood tests to monitor the effect of the thyroxine and to ensure that it remains effective. The Applicant also gave evidence that she has attended various appointments with an endocrinologist at the Royal Brisbane & Women’s Hospital, who recommended that she continue being treated by her GP, Dr Lean.
The Applicant accepted at the Hearing that she had first seen an endocrinologist in September 2017, 3 months after the Relevant Period. Her evidence to the Tribunal was that this appointment was at the recommendation of her GP Dr Lean because her blood tests showed a concerning degree of instability. The Applicant in her evidence said that the endocrinologist set a new program for her medication regime. He changed it so that she went back to one tablet per day initially and then to two tablets per day, then onto seven per day, and then back to two per day and finally back to one tablet per day. She also said that this regime modification then stabilised her thyroid levels.
In a letter dated 20 March 2018, Dr Lean stated that as at 2016, the Applicant’s Hashimoto’s disease was final and stable and noted that she was not likely to recover to re-enter the workplace. He reported that the Applicant’s condition has continued to deteriorate despite recent specialist intervention, and reiterated his opinion that she will never work or study again.[38] In his response to a questionnaire dated 1 August 2018, Dr Lean commented that, as of 12 March 2014, he believed that treatment for the Applicant’s Hashimoto’s disease condition was unlikely to result in a significant improvement.[39] He further confirmed that despite medical intervention, the Applicant’s condition remained profoundly unstable and that the endocrinologist was unable to “fix either”[40].
[38]          Exhibit 3, Report of Dr Lean, dated 20 March 2018.
[39]          Exhibit 4, Response to questionnaire completed by Dr Lean, dated 1 August 2018.
[40]          Exhibit 4, Response to questionnaire completed by Dr Lean, dated 1 August 2018.

The condition is terminal and chronic, and the Tribunal accepts that as a result, it is inherently unstable and will continue to deteriorate.[41] The Applicant’s condition has been treated with medication since at least February 2016, and throughout the Relevant Period, her GP was of the opinion that maintaining the medication regime and ongoing monitoring of her thyroid function were the only future treatment options.[42] The Applicant’s evidence at the Hearing is reflective of her GP’s opinion when she stated that the only treatment available to her was effectively monitoring her thyroid function and adjusting the medication program to keep it stable and that this was what the endocrinologist had in fact done. It is therefore clear to the Tribunal that the surgical intervention of 2006 combined with ongoing medication and appropriate thyroid function monitoring and adjustment of the medication regime was and is the only treatment which the Applicant could avail herself of for her hypothyroidism.
[41]          Exhibit 1, T Documents, T17, Medical Certificate of Dr Danny Lean, dated 17 March 2017, page 69.
[42]          Exhibit 1, T Documents, T6, Medical Certificate of Dr Danny Lean, dated 19 February 2016, page 50;
T9, Medical Certificate of Dr Danny Lean, dated 20 April 2016, page 53; T10, Patient Health Summary by Dr Danny Lean, dated 21 April 2016, page 54; T11, Medical Certificate of Dr Danny Lean, dated 9 May 2016, page 55.
The Applicant told the Tribunal that she was referred by Dr Lean, to a specialist endocrinologist as he had concerns about her blood tests revealing unstable thyroid function. She said that the specialist adjusted the dosage of her medication but otherwise recommended that she continue being treated by her GP.
The endocrinologist’s appointment was outside the Relevant Period, however, the Tribunal accepts that although the intervention of this specialist was not within the Relevant Period it was referable to the period insofar as it represented a continuation of the thyroid monitoring which had been a part of the Applicant’s ongoing treatment for a chronic and terminal condition.
The case of Re Fanning and Secretary, Department of Social Services [2014] AATA 447 at 473 is relevant where it was stated:
“With respect to whether a condition was fully stabilised, for example, the question for the Tribunal is whether ‘any further treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years’ (Emphasis added). While hindsight may suggest that treatment did not result in improvement within two years, that is not the question for the Tribunal to determine. The legislation requires the Tribunal to consider the treatment that has taken place, and was intended to take place, and the likely effect of that treatment, at the time of the claim and in the 13 weeks thereafter. For that reason, evidence of treatment, and the efficacy of that treatment, after the relevant period is not directly relevant to the Tribunal’s decision.”[43]
[43] Re Fanning and Secretary, Department of Social Services [2014] AATA 447. At [33].
Deputy President Handley in Fanning does however go on to qualify the view above by indicating that a later opinion may not be irrelevant, stating that:
“it could be open to an expert to come to a conclusion after the relevant period, based on the symptoms and success of treatment during the relevant period, that a condition was intractable at that time.”[44]
[44] Re Fanning and Secretary, Department of Social Services [2014] AATA 447. At [35]
As the Applicant’s condition in this matter was considered terminal throughout the Relevant Period the Tribunal therefore considers that the specialist review and action were relevant.
The medical certificate of Dr Lean dated 17 March 2017[45] states that the Applicant’s dysthyroidism is not likely to improve and is very likely to worsen and be terminal. The Respondent accepts that the Applicant’s condition is fully diagnosed, fully treated but contends that it is not however stabilised. Therefore, this Tribunal is required to examine if the Applicant’s condition is fully stabilised in accordance with the requirements set out in section 6(6) of the Impairment Determination. The Tribunal has concluded that the evidence of the Applicant’s treating GP is clear and unequivocal that the condition is terminal and that the Applicant has undertaken such reasonable treatment as is warranted. The thyroid has been surgically removed and the ongoing treatment is medication to stabilise the thyroid function with regular monitoring. The most recent letter of Dr Lean’s of the 20 March 2018 confirms that this was indeed the case as at 2016 and that the Applicant was following the “strict criteria associated with taking Orixine”.
[45] Exhibit 1, T Documents, T17, Medical Certificate of Dr Danny Lean, dated 17 March 2017, page 69.
Dr Lean’s medical certificate of the 24 April 2017[46] also confirms that at that time the Applicant was suffering from hypothyroidism, had undergone a thyroidectomy and was being treated with Thyroxine and that the planned treatment was ongoing monitoring of thyroid function. The certificate also stated the condition was permanent and likely to persist for more than two years.
[46] Exhibit 1, T Documents, T19, Medical Certificate of Dr Danny Lean, dated 24 April 2017, page 101.
The Applicant in her evidence to the Tribunal relating to her treatment stated that she had been to see an endocrinologist several times at the Royal Brisbane Hospital and stated that they do not give medical reports on her as there is no point. She stated that she went the Royal Brisbane Hospital for the endocrinologist to check her thyroid medication and that the endocrinologist was happy for her to be treated by her GP who monitored her blood tests and thyroid function. The Tribunal accepts that the Applicant has undertaken all reasonable treatment for the condition and that 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.
The Tribunal is therefore satisfied based on the material before it that the Applicant’s Hashimoto’s disease condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned a rating pursuant to Table 1 of the Impairment Determination.
Chronic Obstructive Airways Disease
The Secretary accepts that the Applicant has suffered from Chronic Obstructive Airways Disease (‘COAD’) since 2011, and that the condition has been fully diagnosed since that time.[47] However, the Secretary submits that it was not fully treated or fully stabilised during the Relevant Period and thus does not attract an Impairment Rating under Table 1 of the Impairment Tables.[48]
[47] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 43.
[48] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 43-50.
Specifically, the Respondent relies on the lack of information regarding treatment and prognosis to support their claim that the condition was not fully treated or stabilised at the Relevant Period.[49] In various medical certificates before the Relevant Period, Dr Lean described the condition as being a permanent condition which is likely to last for two years and detailed that past treatment for this condition was medication, but did not record any current or planned treatments.[50]
[49] Exhibit 2, Respondent’s Statement of Facts, Issues and contentions dated 6 July 2018, para 46.
[50] Exhibit 1, T Documents, T7, Patient Health Summary by Moreton Medical Centre, dated
19 February 2016, page 51; T11, Medical Certificate by Danny Lean, dated 9 May 2016, page 55.
The JCA Report dated 22 May 2017 noted that the Applicant had previously been treated with medication, and that there was no medical evidence detailing present or planned treatments for this condition.[51] The JCA attempted to contact Dr Lean on 2 May 2017 and 16 May 2017 to elucidate up-to-date details regarding the treatment and prognosis of this condition, but was unsuccessful in doing so. The JCA was unable therefore, to consider that this condition was fully diagnosed, fully treated and fully stabilised as there was no contemporaneous information regarding the severity of the condition, or any reasonable treatment available to the Applicant that would be likely to result in improvement.[52]
[51] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, pages 102 to 110.
[52] Exhibit 1, T Documents, T20, JCA Report, dated 22 May 2017, page 103.
The Applicant gave evidence to the Tribunal at Hearing that, in relation to her COAD condition she takes Ventolin to assist her when she suffers symptoms of shortness of breath or shortness of breath on exertion. The Applicant confirmed that she had not been referred to, or seen a respiratory specialist as the condition is effectively managed with Ventolin.
The evidence available to the Tribunal indicates that the condition has been fully diagnosed by the Applicant’s general practitioner, and the Applicant has engaged with reasonable treatment, being medication. There is no indication that a specialist diagnosis or opinion was required or contemplated, as the Applicant was effectively managing the condition with medication as required. The Tribunal accordingly accepts that, as at the Relevant Period, the condition was fully diagnosed, treated and stabilised. The Tribunal will therefore assign a rating for this condition under Table 1 – Functions requiring Physical Exertion and Stamina.
Hypertension and Hypercholesterolemia
The Secretary accepts that the Applicant has suffered from hypertension since 2007 and hypocholesterolemia since 2010. The Secretary also accepts that both conditions were diagnosed, fully treated and fully stabilised during the Relevant Period.[53] Having regard to the medical evidence available, and the Applicant’s evidence at Hearing, the Tribunal accepts that concession is appropriate to make. Accordingly, the Tribunal finds that the Applicant’s hypertension and hypercholesterolemia conditions were fully diagnosed, fully treated and fully stabilized during the Relevant Period. The Tribunal will therefore assign a rating for this condition under Table 1 – Functions requiring Physical Exertion and Stamina.
[53] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions dated 6 July 2018, para 51.
Functional Impairment under Table 1
As the Tribunal has found that the Applicant’s Hashimoto’s disease, chronic obstructive airways disease and hypertension and hypercholesterolemia conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period the Tribunal must determine whether as a result the Applicant has a functional impairment which can be rated under Table 1 of the Impairment Tables.
There is no doubt based on the medical evidence before the Tribunal and the evidence provided by the Applicant at Hearing that these conditions cause her functional impairments. The question now becomes is the impairment mild, moderate or severe.
Table 1 of the Impairment Tables sets out the criteria relating to a mild functional impairment as follows:

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)         walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)         performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)        is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

Table 1 of the Impairment Tables sets out the criteria relating to a moderate functional impairment as follows:

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)         is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)         has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)        is able to:

(i)         use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)         perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

Table 1 of the Impairment Tables sets out the criteria relating to a severe functional impairment as follows:

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)        The person:

(a)        usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)         walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)         walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)        use public transport without assistance; or

(iv)        perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)        has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

In his medical certificates dated 19 February 2016 and 9 May 2016, Dr Lean describes the Applicant’s symptoms resulting from the Hashimoto’s disease condition as ‘excessive fatigue poor concentration, poor stamina, weakness and from her COAD condition as ‘shortness of breath’ and ‘shortness of breath on exertion.’[54]
[54] Exhibit 1, T Documents, T6, Medical Certificate by Dr Danny Lean, dated 19 February 2016,
page 50; T11, Medical Certificate by Dr Danny Lean, dated 9 May 2016, page 55.
In medical certificates dated 8 March 2016, 20 April 2016 and 14 July 2016, Dr Lean provides:
[The Applicant], my patient, has a range of medical conditions including terminal dysthyroidism and will be unfit for work at all. She is easily fatigued, weak and suffers regular body pain. She would be a liability to any employer. This condition will not improve and is very likely to worsen and be terminal.[55]
[55] Exhibit 1, T Documents, T8, Medical Certificate by Dr Danny Lean, dated 8 March 2016, page 52; T9,
Medical Certificate by Dr Danny Lean, dated 20 April 2016, page 53; T13, Medical Certificate by
Dr Danny Lean, dated 14 July 2016, page 65.
Ms Marion McKinney of Renu Fashion Rothwell provided the following letter dated
4 November 2016 in relation to the Applicant’s work placement:[56]
To whom it may concern,
I own and manage RENU FASHION ROTHWELL, a new and recycling clothing shop. I was looking at employing [the Applicant] as a volunteer worker a few days a week leading up to possible full-time work.
She worked for a few days; I had to let her go as she was not suitable for the job. I felt she was a hindrance to herself and my customers.
She was unable to concentrate on given task, was unable to work at a fast pace when it was busy. She also lost her balance on a few occasions fell over injuring her arm, which resulted in blood on some clothing.
She was also unable to help lift heavy bags of donated clothing when required.
I found her to be a lovely person given her circumstances, gave her the opportunity to work, but she was incapable of doing relatively simple tasks in the shop.
I wish her all the best for the future.
[56] Exhibit 1, T Documents, T14, Statement by Marion McKinney, Renufashion Rotherwell, dated
4 November 2016, page 66.
In his medical certificate dated 17 March 2017, Dr Lean advised as follows:[57]
[The Applicant’s] activities of daily living are limited significantly in that she cannot mobilise easily due to weakness and shortness of breath. Simple household tasks like home cleaning and maintenance is restricted also. She would not be able to interact or attend to community activities, even going to the shops, without being affected by her fatigue. She would definitely require assistance from others for these otherwise simple tasks.
[57] Exhibit 1, T Documents, T17, Centrelink Letter: Confirmation of intention to claim, dated
9 March 2017, page 69.
Dr Lean does not differentiate between the symptoms attributable to the Applicant’s Hashimoto’s disease and the symptoms attributable to COAD, hypertension and hypercholesterolemia in this report. Nor did Ms McKinney reference the Applicant’s conditions. It is the Tribunal’s view that the Applicant’s permanent conditions impact in various ways upon her functions requiring physical exertion and stamina and as such her symptoms should be considered together when assigning an Impairment Rating.
At Hearing, the Applicant stated that, as a result of her COAD condition, she cannot walk too far, has difficulty walking up hills and when she has to lift the sheet to make the bed she finds it hard to breathe. She stated that she was able to walk the few blocks from her home to the job placement centre and return. She did not use a wheelchair and she was able to carry out such household duties such as sweeping the floor and doing a load of washing, albeit incrementally, to rest in between. In relation to the condition of hypertension the Applicant gave evidence that she has episodic, ‘blinding’ headaches, which subside shortly after taking medication. She is sometimes unable to take her hypertension medication as it reacts with her thyroid medication so she has to be careful. If she fails to heed this requirement her neck and face blow up and she suffers burning and itching of her skin, pain and aching of the muscles and bones. She posts notes on the refrigerator to remind her to not mix these medications.
In his response to a questionnaire dated 1 August 2018, Dr Lean provided that the impact of the Applicant’s Hashimoto’s disease included fatigue, weakness, dry skin and shortness of breath. Further he advised that he had seen the Applicant on three occasions throughout the Relevant Period, and he noted that during that time, her cardiac condition prevented her from completing light duties and activities of daily living, such as walking from the carpark into the shopping centre or supermarket unassisted.[58]
[58] Exhibit 4, Response to questionnaire completed by Dr Lean dated 1 August 2018.
Given the medical evidence and the Applicant’s evidence at the Hearing, the Tribunal considers the Applicant’s conditions to have a moderate functional impact on activities requiring physical exertion or stamina and warrants a rating of 10 points under Table 1 of the Impairment Tables.
Mental Health Function – Reactive Depression Condition
The Applicant’s reactive depression condition was first noted on 14 December 2015 in a medical certificate prepared by Dr Abka Chikarsal directed to Centrelink.[59] The condition was at that time noted to be temporary and the treatment was described as comprising “conservative treatment by way of GP counselling with a planned GP review in one week”. Dr Chikarsal described the Applicant’s symptoms as “low mood, feeling anxious and stressed, poor sleep and poor concentration”. The cause was described as stress by being bullied in the workplace and losing her job.[60] Dr Chikarsal opined at the time that the condition would last for less than three months.
[59] Exhibit 1, T Documents, T4, Medical Certificate by Dr Abha Chijarsal, Deception Bay Medical Centre,
dated 14 December 2015, page 48.
[60] Exhibit 1, T Documents, T4, Medical Certificate by Dr Abha Chijarsal, Deception Bay Medical Centre,
dated 14 December 2015, page 48.

On 4 July 2016, the JCA noted the condition and recorded that the Applicant had reported a history of anxiety and stress for many years. The Applicant reported to the JCA, that she had trialled antidepressant medication in or around 2013.[61]
[61] Exhibit 1, T Documents, T12, JCA Report, dated 7 July 2016, page 57.
The JCA reported that the condition was likely to persist for more than 24 months and fluctuate. The JCA provided however that:
“As the diagnosis has not been verified or treated by a Clinical Psychologist or Psychiatrist, the condition cannot be considered fully diagnosed, treated and stabilised for Social Security purposes.”[62]
[62] Exhibit 1, T Documents, T12, JCA Report, dated 7 July 2016, page 57.
On 14 June 2016 and 17 March 2017, the Applicant’s GP Dr Lean described her declining psychological state, describing anxiety and poor mood, and recommending formal counselling treatment.[63]
[63] Exhibit 1, T Documents, T13. Medical Certificate of Dr Danny Lean, dated 14 July, page 65; T17,
Medical Certificate of Dr Danny Lean, dated 17 March 2017, page 69.
The introduction to Table 5 of the Impairment Tables, which relates to Mental Health conditions, stipulates:[64]
The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a Psychiatrist) with evidence from a Clinical Psychologist (if the diagnosis is not being made by a Psychiatrist).
[64] Impairment Determination, Part 3 – The Tables, Table 5 – Mental Health Function.
At Hearing, the Applicant gave evidence that she had an appointment with a clinical psychologist in the following week. In his responses to a questionnaire dated 1 August 2018, Dr Lean indicated that the Applicant had been diagnosed with adjustment disorder with depressed mood in November or December of 2016.[65] However, upon reviewing the medical evidence available to the Tribunal at the time of this decision, there is no evidence that the Applicant has been diagnosed by a psychiatrist or an appropriately qualified medical practitioner with evidence from a clinical psychologist at the Relevant Period. Accordingly, this condition is unable to be rated under Table 5 of the Impairment Determination as it cannot be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period.
[65] Exhibit 4, Response to questionnaire completed by Dr Lean dated 1 August 2018.
CONCLUSION
The Tribunal accepts that at the time of her claim and during the Relevant Period, the Applicant suffered from several conditions, namely Hashimoto’s disease (also referred to as hypothyroidism), chronic obstructive airways disease (COAD), hypertension and hypercholesterolemia and reactive depression.
The Tribunal has found that the Applicant’s Hashimoto’s disease, chronic obstructive airways disease and hypertension and hypercholesterolemia conditions were diagnosed, fully treated and fully stabilised as at the Relevant Period. Based on the medical evidence before the Tribunal and the evidence provided by the Applicant at Hearing the Tribunal finds that the functional impairments caused by these conditions provide a common impact upon the Applicant’s functions requiring physical exertion and stamina and should be assigned 10 points under Table 1 of the Impairment Determination.
The reactive depression condition was not diagnosed by either a Clinical Psychologist or by a Psychiatrist during the Relevant Period. Accordingly, on this basis, the Tribunal finds that the condition was not fully diagnosed, fully treated and fully stabilised and consequently cannot be assigned an impairment rating under the Impairment Determination.
The Tribunal therefore concludes that, the Applicant had an impairment rating of 10 points at the Relevant Period and does not therefore satisfy paragraph 94(1)(b) of the Act. Accordingly, the Tribunal does not need to address the issue of whether Ms Ladley had a continuing inability to work.
The Tribunal finds that the Applicant was not qualified for the Disability Support Pension within the Relevant Period.
DECISION
The Decision under review is affirmed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

...........................[SGD]......................................
Associate
Dated: 26 March 2019

Date of hearing: 7 August 2018

Applicant: In person

Advocate for the Respondent: Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2019] AATA 546

26 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	7 August 2018
Applicant:	In person
Advocate for the Respondent:	Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services