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

Lindemann and Secretary, Department of Social Services (Social services second review) [2017] AATA 1585 (28 September 2017)
Division:GENERAL DIVISION
File Number: 2017/0210
Re:Jason Lindemann
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:28 September 2017
Place:Brisbane

The Tribunal affirms the decision under review.
...............................[Sgd].........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
REASONS FOR DECISION
Member D K Grigg
28 September 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Lindemann was a recipient of the Disability Support Pension (“DSP”) between 3 September 2004[1] and 27 June 2016 for regional pain syndrome. However, on 27 June 2016, after a medical review, Mr Lindemann’s DSP was cancelled by the Department of Human Services (“Centrelink”).[2]
[1] Exhibit 1, T Documents, T21, page 304, Centrelink records.
[2] Exhibit 1, T Documents, T7, pages 59-60, Letter from Centrelink to Mr Lindemann dated 27 June 2016.
Mr Lindemann sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”).[3] The subsequent review by the ARO was unsuccessful on the grounds that Mr Lindemann’s medical conditions were not fully diagnosed, treated and stabilised and did not attract 20 points or more under the Impairment Tables.[4]
[3] Exhibit 1, T Documents, T9, page 63, Application for Review of Decision and Medical Reports dated 5 August
2016.
[4] Exhibit 1, T Documents, T12, pages 69-77, Decision of ARO dated 5 September 2016.
Mr Lindemann then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Lindemann’s claim and affirmed the ARO’s decision on 13 December 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 2-8, SSCSD’s Decision and Reasons for Decision dated 13 December 2016.
Mr Lindemann has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, page 1, Mr Lindemann’s Application for Review dated 13 January 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Lindemann must have a physical, intellectual or psychiatric impairment;
(b)Mr Lindemann’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Mr Lindemann must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[8]
[8] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Lindemann must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 27 June 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Lindemann’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[9]
DID MR LINDEMANN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[9] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]
[10] Determination, s 3.
Mr Lindemann’s Medical Conditions
The Medical Reports completed by Mr Lindemann and Dr Khan, General Practitioner, in May 2016 as part of Centrelink’s review, listed Mr Lindemann’s medical conditions as:[11]
·Lower back - Disc protusion at L5 level abutting S1, nerve root with multilevel facetal arthopathic changes
·Right shoulder – calcific insertional supraspinatus tendonopathy
·Depression/Post-traumatic stress disorder
[11] Exhibit 1, T Documents, T4, page 38, DSP Report completed by Mr Lindemann; T5, pages 42-51, Medical Report
of Dr Khan dated 25 May 2016.
Lower Back Condition
Dr Rowles, General Practitioner, reported in 2000 that Mr Lindemann had lower back problems which began in March 1998.[12]
[12] Exhibit 1, T Documents, T 15, page 94, report of Dr Rowles dated 8 December 2000; T 17, page 231, x-ray report
dated 14 November 2000.
In June 2001 Dr Jeffrey Boyce, Consultant Neurologist, diagnosed Mr Lindemann (Hintz) with left lumbar disc lesion with lumbar radiculopathy resulting in a 10% impairment of the whole person.[13]
[13] Exhibit 1, T Documents, T 17, pages 232 – 234, report of Dr Boyce dated 8 June 2001.
In 2002 Dr Savery and Dr Stark, General Practitioners, reported that Mr Lindemann had degenerative disease of the lumbosacral spine.[14]
[14] Exhibit 1, T Documents, T 15, page 113, report of Dr Savery dated 8 January 2002; T 15, page 118, report of Dr
Stark dated 5 December 2002.
Dr Banik reported in November 2003 that Mr Lindemann was still suffering from his lumbar spine injury and that he had progressively worsening back pain.[15]
[15] Exhibit 1, T Documents, T 15, page 126, report of Dr Bannock dated 20 November 2003.
In 2004 Dr Lloyd – Morgan, General Practitioner, reported that Mr Lindemann was still in pain and suffering from reduced mobility due to his lumbar disc protrusion.[16]
[16] Exhibit 1, T Documents, T 15, page 145, report of Dr Lloyd – Morgan dated 21 September 2004.
CT scans of Mr Lindemann’s lumbar spine performed on 29 April 2016 and 2 August 2016 showed broad-based posterior central disc protrusion at L5/S1 level abutting the traversing S1 nerve roots and multilevel facetal arthropathy changes.[17]
[17] Exhibit 1, T Documents, T 17, CT report dated 29 April 2016; T 19, page 286, CT report dated to August 2016.
Mr Lindemann was referred to the neurosurgical clinic at Mackay Base Hospital in or around August 2016.[18]
[18] Exhibit 1, T Documents, T 17, Letter from Mackay Base Hospital to Mr Lindemann dated 19 August 2016.
In January 2017 Dr Alyson Turner, General Practitioner, reported that Mr Lindemann was still suffering from chronic lower back pain which included severe pain radiating down his legs.[19]
[19] Exhibit 1, T Documents, T 20, page 302, Medical Certificate of Dr Turner dated 17 January 2017.
Dr Turner reported in April 2017 that:[20]
(a)she had been seeing Mr Lindemann for 7 months;
(b)Mr Lindemann was taking significant amounts of analgesia to help control the pain; and
(c)Mr Lindemann struggled with activities of daily living.
[20] Exhibit 3, Report of Dr Turner dated 3 April 2017.
In May 2017 Dr Turner reported that Mr Lindemann:[21]
(a)had been treated pharmacologically, and with physiotherapy; and
(b)was waiting to see a neurosurgeon and pain team.
[21] Exhibit 3, Report of Dr Turner dated 30 May 2017.
Right Shoulder Condition
In August 2013 an ultrasound of Mr Lindemann’s right shoulder showed calcific insertional supraspinatus tendinopathy.[22]
[22] Exhibit 1, T Documents, T 18, page 251, Ultrasound Report dated 19 August 2013.
A report from Mackay Base Hospital indicates that in March 2015 Mr Lindemann had shoulder pain following whipper snippering at home and had pain in any movement of his arm.[23]
[23] Exhibit 1, T Documents, T 18, page 252, Mackay Base Hospital records dated 23 March 2015.
An x-ray of Mr Lindemann’s right shoulder in March 2015 showed suggestions of supraspinatus tendinitis.[24]
[24] Exhibit 1, T Documents, T 18, page 253, x-ray report dated 23 March 2015.
In May 2015 Mr Lindemann was then placed on an elective Orthopaedics waiting-list for Right Rotor Cuff Repair Subacromial Decompression surgery at Mackay Base Hospital as a clinical urgency category.[25]
[25] Exhibit 1, T Documents, T 18, page 254, letter Mackay Base Hospital to Dr Khan dated 22 May 2015.
On 14 July 2015 Mr Lindemann had an arthrogram on his right shoulder.[26] An MRI performed on 14 July 2015 showed supraspinatus tendinopathy of mild severity and the suspicion of a small focal defect in the bursal surface fibres at the tendon attachment but no other significant abnormality.[27]
[26] Exhibit 1, T Documents, T 19, page 269, hospital records dated 14 July 2015.
[27] Exhibit 1, T Documents, T 19, page 270, hospital records dated 14 July 2015.
In August 2015 hospital notes record that Mr Lindemann:[28]
(a)was having minimal shoulder pain;
(b)was no longer getting tightness or pain in his neck;
(c)had improved shoulder rotation and nil pain through range but minor pain on resisted rotation of movement; and
(d)had showed improvement in pain level, scapular thoracic rhythm and functioning in his shoulder since his last review.
[28] Exhibit 1, T Documents, T 19, page 265, hospital records dated 9 August 2015.
In May 2016 Dr Khan reported that the current treatment for Mr Lindemann’s shoulder condition was Panadeine Fort and that the planned treatment was physiotherapy and steroid injections. Dr Khan also indicated the impact of this condition was not expected to last longer than 13 – 24 months.[29]
[29] Exhibit 1, T documents, T5, pages 42 – 51, medical report of Dr Khan dated 25 May 2016.
In May 2017 Dr Turner reported that Mr Lindemann:[30]
(a)had been diagnosed with supraspinatus tendinopathy of the right shoulder in August 2013;
(b)had been undertaking physiotherapy and was responding well and as a result surgery was not advised;
(c)had treated the condition with anti-inflammatories, paracetamol and codeine;
[30] Exhibit 3, report of Dr Turner dated 30 May 2017.
Anxiety/Depression/Post-traumatic stress disorder (PTSD)
In October 2000 Dr Norman Rose, Consultant Psychiatrist, diagnosed Mr Lindemann as having an adjustment disorder with anxiety and depressed mood resulting, in part, from a work-related back condition and incidents with another individual at his workplace.[31]
[31] Exhibit 1, T Documents, T16, page 182, report of Dr Rose dated 26 October 2000.
Mr Lindemann was reviewed by Dr Rose again in March 2001. Dr Rose reported that Mr Lindemann had markedly improved but remained mildly depressed and anxious.[32] By July 2001 Dr Rose reported that Mr Lindemann was no longer suffering from a psychiatric injury.[33]
[32] Exhibit 1, T Documents, T16, page 189, report of Dr Rose dated 8 March 2001.
[33] Exhibit 1, T Documents, T16, pages 194-195, report of Dr Rose dated 9 July 2001.
In 2002 Dr Savery and Dr Stark reported that Mr Lindemann had an adjustment disorder with anxiety and depressed mood.[34]
[34] Exhibit 1, T Documents, T 15, page 113, report of Dr Savery dated 8 January 2002; T 15, page 120, report of Dr
Stark dated 5 December 2002.
Dr Joseph Mathew, Consultant Psychiatrist, assessed Mr Lindemann (Hintz) in April 2003 and he was diagnosed with generalised anxiety disorder.[35]
[35] Exhibit 1, T Documents, T 16, page 205, report of Dr Mathew dated 7 April 2003.
Dr Banik reported in November 2003 that Mr Lindemann was suffering from chronic depression and anxiety.[36]
[36] Exhibit 1, T Documents, T 15, page 126, report of Dr Bannock dated 20 November 2003.
In 2004 Dr Lloyd – Morgan, General Practitioner, reported that Mr Lindemann had depression and PTSD.[37] Dr Cook, General Practitioner, also provided a report in September 2004 confirming Mr Lindemann’s anxiety, depression and PTSD.[38]
[37] Exhibit 1, T Documents, T 15, page 145, report of Dr Lloyd – Morgan dated 21 September 2004.
[38] Exhibit 1, T Documents, T 15, page 154, report of Dr Cook dated 7 September 2004.
In or around early 2014 Mr Lindemann separated from his wife and was put on a Mental Health Treatment Plan which included psychotherapy, education and supportive counselling. At that time Mr Lindemann was also taking antidepressants.[39]
[39] Exhibit 1, T Documents, T 16, page 218, report of Mr Williams, mental health nurse, dated 29 August 2014; T 16,
pages 223 – 226, mental health treatment plan dated 20 March 2014.
In July 2016 Dr Khan referred Mr Lindemann to Dr Sakata and reported that Mr Lindemann’s mood had been low, his aspect irritable and he had been tearful on occasion. Dr Khan noted that Mr Lindemann had allegedly been refused access to his children, felt that he was being harassed by some members of the police, and was having great difficulty in surviving financially as a result of his DSP having been cancelled after 12 years.[40] Mr Lindemann was put on another mental health treatment plan for his anxiety and depression which included psychological or pharmacological treatment.[41]
[40] Exhibit 1, T Documents, T 16, page 219, letter from Dr Khan to Dr Sakai dated 14 July 2016.
[41] Exhibit 1, T Documents, T 16, pages 257 – 230, mental health treatment plan dated 14 July 2016.
Mr Lindemann was then scheduled for a psychological review at Mackay Base Hospital on 8 December 2016.[42]
[42] Exhibit 1, T Documents, T 19, page 268, Letter from Mackay Base Hospital to Mr Lindemann dated 1 December
2016.
In January 2017 Dr Alyson Turner reported that Mr Lindemann was still suffering from depression and had low mood and suicidal thoughts.[43]
[43] Exhibit 1, T Documents, T 20, page 302, medical certificate of Dr Turner dated 17 January 2017.
In May 2017 Dr Turner reported that:[44]
(a)Mr Lindemann had been diagnosed with depression, anxiety and PTSD which was onset in June 2000;
(b)these conditions are expected to persist for more than 2 years;
(c)Mr Lindemann had had psychology counselling on and off since 2000 and had taken antidepressants, antipsychotics and benzodiazepines on and off;
(d)Mr Lindemann had been on a mental health treatment plan since the Qualification Date;
(e)Mr Lindemann continues to have psychology input;
(f)Mr Lindemann was waiting to be reviewed by a psychiatrist;
(g)Mr Lindemann’s current symptoms include low mood, anxiety and PTSD symptoms; and
(h)Mr Lindemann struggles to leave the house due to his mental health.
[44] Exhibit 3, report of Dr Turner dated 30 May 2017.
Conclusion on Impairment
The Secretary accepts that Mr Lindemann suffered from impairments for the purposes of section 94(1)(a) at the Qualification Date.[45]
[45] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 August 2017, para 50.
In light of the medical evidence I conclude that at the Qualification Date Mr Lindemann suffered from a Spinal Impairment, Shoulder Impairment and Mental Health Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
While I acknowledge that Mr Lindemann also suffers from PTSD, Dr Khan reported in May 2016 that this condition is well managed and having a minimal or limited impact on Mr Lindemann’s ability to function.[46]
DOES MR LINDEMANN’S IMPAIRMENT ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[46] Exhibit 1, T Documents, T5, page 50, Medical Report of Dr Khan dated 25 May 2016.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[47] They are function based[48] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[49]
[47] Determination, s 4(2) and 5(2)(a).
[48] Determination, s 5(2)(b) and (c).
[49] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[50]
(a)Mr Lindemann’s condition causing that impairment is permanent; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[50] Determination, see s 6(3).
Mr Lindemann’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[51]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[51] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[52] the following must be considered:[53]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[52] For the purposes of ss 6(4)(a) and (b) of the Determination.
[53] Determination, see s 6(5).
A condition is “fully stabilised”[54] if:[55]
(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;[56] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[54] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[55] Determination, see s 6(6).
[56] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

Before applying the Tables I must first consider Mr Lindemann’s medical history, in relation to the condition causing the Impairments.[57]
[57] Determination, see s 6(2).
Using the Impairment Tables
I have to assess the level of impact of Mr Lindemann’s mental health Impairment against the descriptors[58] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[59]
[58] Determination, see ss 3 and 5(3).
[59] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[60]
[60] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[61]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[61] Determination, see s 7.
I must not take into account the following information in applying the Tables:[62]
(a)symptoms reported by Mr Lindemann in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Lindemann’s local community.
[62] Determination, see s 8.
Which Tables are appropriate are determined by:[63]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[63] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[64]
[64] Determination, see s 10(3).
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.[65]
[65] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[66]
[66] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[67]
SPINAL IMPAIRMENT
[67] Determination, see s 11(5).
Is Mr Lindemann’s Spinal Impairment permanent and likely to persist for at least 2 years?
In June 2016, the Job Capacity Assessment report (“JCA”) concluded that Mr Lindemann’s Spinal Impairment was permanent and noted that no further treatment was planned.[68] The Secretary accepts that Mr Lindemann’s Spinal Impairment was fully diagnosed, fully treated and fully stabilised as at the Qualification Date.[69]
[68] Exhibit 1, T documents, T6, pages 52 – 58, JCA report dated 17 June 2016.
[69] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 August 2017, para 32.
The medical evidence supports a finding that Mr Lindemann’s Spinal Impairment was fully diagnosed at the Qualification Date. The issue is whether the impairment was fully treated and stabilised.
Medical evidence shows that:
(a)medical records describe Mr Lindemann’s spinal condition as “chronic back pain”;[70]
(b)in 2015 the planned treatment for this condition was physiotherapy and analgesics;[71]
(c)Mr Lindemann was discharged from physiotherapy on 30 October 2015;[72]
(d)Mr Lindemann presented hospital again with back pain in August 2016 following a fall.[73]
[70]         For example, see Exhibit 1, T documents, T 17, pages 244 – 245; T 19, pages 277 and 279.
[71]         Exhibit 1, T documents, T 19, page 280.
[72]         Exhibit 1, T documents, T 19 page 281.
[73]         Exhibit 1, T documents, T 19, page 288.
Mr Lindemann’s Spinal Impairment was fully treated and stabilised as at the Qualification Date but, subsequent to the Qualification Date, he has, as a result of a fall, had an exacerbation of this chronic lower back pain. At the hearing Mr Lindemann told the Tribunal that his falls have upset his lower back and he has deteriorated very quickly.
In the circumstances, I find that Mr Lindemann’s Spinal Impairment was “permanent” at the Qualification Date and that an Impairment Rating can be assigned.
Function Evidence and Impairment Rating
The Table relevant to an assignment of an Impairment Rating in relation to Mr Lindemann’s Spinal Impairment is Table 4.
The Secretary submits that an appropriate Impairment Rating for Mr Lindemann’s Spinal Impairment is 10 points.[74]
[74] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 18 August 2017, para 35.
Mr Lindemann submitted that his Spinal Impairment is having a severe functional impact on activities involving spinal function and warrants an Impairment Rating of 20 points.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·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.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
To obtain a 10 point rating the corroborating evidence would need to show that Mr Lindemann:
(1)…is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[he] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[he] has difficulty moving [his] head to look in all directions (e.g. turning [his] head to look over [his] shoulder); or
(c)[he] is unable to bend forward to pick up a light object placed at knee height; or
(d)[he] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20 point rating the corroborating evidence would need to show that Mr Lindemann:
(1)…is unable to:
(a)perform any overhead activities; or
(b)turn [his] head, or bend [his] neck, without moving [his] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d) remain seated for at least 10 minutes.
Mr Lindemann has provided written submissions outlining his daily routine and how his conditions impact on his ability to function. However, as was explained to Mr Lindemann in the hearing, to assign an Impairment Rating, self-report of symptoms alone is insufficient and there must be corroborating evidence of the impact that the condition is having on his ability to function. In that regard the corroborating evidence available around the Qualification Date for the Tribunal’s consideration is the report of Dr Khan in May 2016 and the JCA report of June 2016. Mr Lindemann explained to the Tribunal that he disagreed with Dr Khan’s report and said Dr Khan had not completed the medical report fully.
Unfortunately, Dr Khan provided no details about how Mr Lindemann’s Spinal Impairment affects his ability to function and only reported that the impact of the condition would persist for more than 24 months.[75] The JCA reported that Mr Lindemann said he:
·had difficulties with bending, twisting and lifting
·had a sitting tolerance of 15 – 20 minutes
·is able to complete his self-care tasks, such as dressing and showering
·can have difficulties putting on shorts due to bending requirements
·is able to complete his domestic tasks such as vacuuming, cooking, hanging washing on the line and mowing the lawn with a ride on mower and light whipper snippering
[75] Exhibit 1, T documents, T5, pages 42 – 51, report of Dr Khan dated 25 May 2016.
Mr Lindemann told the Tribunal he did not agree with JCA’s reporting of what he could do and says that whilst he may have been able to engage in some activities he does so with extreme pain and as a result does not do them regularly. Mr Lindemann told the Tribunal that he:
·does not bend forward because it aggravates his condition and that if he has to he braces with one hand
·watches TV sometimes
·goes for walks in the backyard
·does nothing on a bad day
·lives by himself
·does not cook often but can cook if his pain is only moderate
·had his mother move to help for 2 months a little while ago
·can use a microwave because it is at waist height
·can wash his clothes and that because his washing machine is a top loader he rests his right arm and uses his left arm to unload his washing
·can use a mower and a whipper snipper, which are both operated using a pull start, but he finds it difficult
·can sit on the bus but he gets pain
·does not shower regularly
·washes and brushes his hair with his left hand
Other than the JCA report there is no timely corroborating evidence available in order to assess Impairment Rating. Mr Lindemann was unable to provide the Tribunal with any other corroborating evidence.
In the circumstances the Tribunal has no choice but to rely on the JCA report. The JCA report indicates there is no corroborating evidence that at the Qualification Date Mr Lindemann met the criteria for a 20 point Impairment Rating.
I find therefore that the most appropriate Impairment Rating for Mr Lindemann’s Spinal Impairment is 10 points.
Given that Mr Lindemann has indicated to the Tribunal that his condition has deteriorated, it is open to Mr Lindemann to make a new application for DSP with supporting corroborative evidence.
SHOULDER IMPAIRMENT
Is Mr Lindemann’s Shoulder Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr Lindemann’s Shoulder Impairment was fully diagnosed in 2013.
The Secretary submits that Mr Lindemann’s Shoulder Impairment was fully diagnosed but not fully treated and not fully stabilised at the Qualification Date.[76]
[76] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 August 2017, para 44.
Hospital records indicate that:
(a)in March 2015 Mr Lindemann was referred to a specialist orthopaedic clinic;[77]
(b)in August 2015 Mr Lindemann presented at hospital with chronic pain in his right shoulder;[78]
(c)Mr Lindemann was doing his prescribed stretching exercises;[79] and
(d)it was recommended in September 2015, given the extent of his improvement, that Mr Lindemann continue with independent management and see a doctor or physiotherapist if his pain did not settle.[80]
[77]         Exhibit 1, T documents, T18, page 252.
[78]         Exhibit 1, T documents, T 19, page 271.
[79]         Exhibit 1, T documents, T 19, page 265.
[80]         Exhibit 1, T documents, T 19, page 266.
Mr Lindemann confirmed at the hearing that he did not have any surgery because his Shoulder Impairment had responded so well to physiotherapy. The records indicate that at the Qualification Date Mr Lindemann’s Shoulder Impairment had settled down and was well managed. In the circumstances, I find that Mr Lindemann’s Shoulder Impairment is permanent and an Impairment Rating can be assigned.
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Evidence Identifying the Loss of Function
Given how well Mr Lindemann had responded to the physiotherapy treatment in 2015 it is unclear how his Shoulder Impairment was having any impact on his ability to function at the Qualification Date. Mr Lindemann’s Shoulder Impairment may have deteriorated subsequent to the Qualification Date, however that does not assist this DSP application.
As referred to earlier, Mr Lindemann has provided written submissions outlining his daily routine and how his conditions impact on his ability to function. However, as was explained to Mr Lindemann in the hearing, and as he appreciates, to assign an Impairment Rating self-report of symptoms alone is insufficient and there must be corroborating evidence of the impact the condition is having on his ability to function. In that regard the corroborating evidence available around the Qualification Date for the Tribunal’s consideration is the report of Dr Khan in May 2016 and the JCA report of June 2016.
It is unfortunate for this application that the only detail Dr Khan provided was that Mr Lindemann had shoulder pain with decreased range of movement.[81] The JCA reported that Mr Lindemann said:
·he has difficulties completing tasks which require reaching out or up
·he had no difficulties completing fine motor tasks such as doing up buttons
·he is able to complete self-care tasks such as brushing his teeth
[81] Exhibit 1, T documents, T5, pages 42 – 51, report of Dr Khan dated 25 May 2016.
Mr Lindemann told the Tribunal he did not agree with JCA’s reporting of what he could do and says that whilst he may have been able to engage in some activities he does so with extreme pain and as a result does not do them regularly. Mr Lindemann did confirm that he has no difficulties handling coins. Mr Lindemann told the Tribunal he is in pain all the time.
Mr Lindemann again explained to the Tribunal that he disagreed with Dr Khan’s report and in particular that he had not completed the medical report in full.
Mr Lindemann was unable to provide the Tribunal with any other corroborating evidence.
I note that Dr Turner provided a report in May 2017 which indicated that Mr Lindemann:[82]
(a)uses a sling from time to time
(b)has symptoms of shoulder pain;
(c)has difficulty raising his arm above shoulder height;
(d)struggles to lift greater than 2 kg or carry anything wider than his torso;
(e)struggles to dress himself, clean himself and brush his hair;
(f)struggles to prepare meals as he struggles to remove lids and pour things; and
(g)struggles to write using a keyboard for prolonged periods.
[82] Exhibit 3, report of Dr Turner dated 30 May 2017.
However, Dr Turner did not commence consulting with Mr Lindemann until after the Qualification Date and this report is 11 months after the Qualification Date. It is not therefore reliable evidence of how Mr Lindemann’s Shoulder Impairment was affecting his ability to function as at the Qualification Date.
In the circumstances, the Tribunal has no choice but to rely on the JCA report.
Relevant Impairment Table and Impairment Rating
In light of the evidence I consider that Table 2 of the Determination, which deals with Upper Limb Function, is the relevant Table. The introduction to Table 2 provides:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·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.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
oFor the purposes of this Table upper limbs extend from the shoulder to the fingers.
The Secretary submits that, in the event the Tribunal found that Mr Lindemann’s Shoulder Impairment was “permanent”, an appropriate Impairment Rating is 0 points.[83]
[83] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 August 2017, para 46.
Mr Lindemann submitted at the hearing that an appropriate Impairment Rating is 5 points.
In order to assign an Impairment Rating of 5 points the evidence would need to show that Mr Lindemann can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)       handling very small objects (e.g. coins);
(c)       doing up buttons;
(d)       reaching up or out to pick up objects.
To obtain an Impairment Rating of 5 points Mr Lindemann must have difficulty with most of the activities listed. The corroborating evidence shows that Mr Lindemann had no difficulties handling small objects or doing up buttons but that he did have some difficulty reaching out or up. The evidence also indicates that Mr Lindemann lives alone and can perform most of his daily self-care tasks and his own cooking and shopping. In the circumstances, the inference can be drawn that Mr Lindemann can pick up a 2 L carton of milk at the Qualification Date.
The evidence does not support a rating of 5 points as he does not have difficulty with most of the activities listed against 5 point rating.
Even if the evidence supported the impairment 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.[84]
[84] Determination, see s 11(1).
I find therefore that the most appropriate Impairment Rating for Mr Lindemann’s Shoulder Impairment is 0 points.
If this condition has deteriorated, it is open to Mr Lindemann to make new application for DSP with supporting corroborative evidence.
IS MR LINDEMANN’S MENTAL HEALTH IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The Secretary submits that Mr Lindemann’s Mental Health Impairment was not fully treated or fully stabilised at the Qualification Date.[85]
[85] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 August 2017, para 38.

It is clear from the medical evidence that prior to the Qualification Date Mr Lindemann had been diagnosed by psychiatrists in 2000 and 2003 with depression, adjustment disorder, and generalised anxiety disorder. Since 2003 the medical evidence indicates that Mr Lindemann was being treated and managed by general practitioners. The medical evidence also indicates that Mr Lindemann had had psychotherapy, and was taking anti-depressants at various times.
In the circumstances, I find that Mr Lindemann was fully diagnosed, by a psychiatrist (as required by Table 5 of the Determination), with a Mental Health Impairment as at the Qualification Date. The question is whether Mr Lindemann’s Mental Health Impairment was fully treated and fully stabilised.
A Pharmaceutical Benefits Summary and Medicare Report demonstrates that Mr Lindemann:[86]
(a)was not prescribed any antidepressant medication between October 2015 and April 2016;
(b)was prescribed with paroxetine in April 2016 and May 2016;
(c)was not treated by a psychologist or psychiatrist between April 2016 and the Qualification Date.
[86] Exhibit 4, PBS summary and Medicare report for Mr Lindemann.
At the hearing Mr Lindemann confirmed that:
(a)he had stopped taking anti-depressant medication in October 2015, with the assistance of a mental health nurse, because he was doing well and did not feel that he needed them; and
(b)he requested that Dr Khan provide him with anti-depressants again in April 2016 because he was feeling depressed as a result of some family issues and thought it would be sensible to take them as a precaution.
Shortly after the Qualification Date, in July 2016, Dr Khan referred Mr Lindemann to Dr Sarkar, Psychiatrist, and Mr Ghizala Jafri, Psychologist, for cognitive behavioural therapy.
The medical evidence indicates that as at the Qualification Date Mr Lindemann had had an exacerbation of an underlying condition which, prior to then, was well managed and having limited, if any, functional impact. However, clearly this condition was not fully treated and stabilised as at the Qualification Date because Mr Lindemann had only just recently recommenced taking anti-depressants and he had no psychotherapy since 2014. His psychotherapy treatment only began in August 2016 while he was in hospital.
In the circumstances, I find that Mr Lindemann’s Mental Health Impairment was not fully treated and not fully stabilised as at the Qualification Date and therefore was not “permanent” for the purposes of the act. As a result, an Impairment Rating for this condition cannot be assigned. However, if this condition has either deteriorated or stabilised, it is open to Mr Lindemann to file a fresh DSP claim.
MR LINDEMANN’S CHRONIC PAIN
In association with Mr Lindemann’s Spinal Impairment he has chronic lower back pain.
Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that 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).
I have already found that the condition causing the chronic pain, the Spinal Impairment, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to that condition. I do not consider that the evidence justifies any increase in that Impairment Rating.
WERE MR LINDEMANN’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act.
I have found that the total Impairment Rating for Mr Lindemann’s Impairments was 10 points.
DID MR LINDEMANN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
I have concluded that Mr Lindemann’s Impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Mr Lindemann had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Lindemann’s claim fails. His impairments did not attract an Impairment Rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.................................[Sgd].......................................
Associate
Dated: 28 September 2017

Date of hearing: 18 September 2017

Applicant: By phone

Solicitors for the Respondent: Ms Jacky Vetter, Lawyer
Department of Human Services

[2017] AATA 1585

28 September 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	18 September 2017
Applicant:	By phone
Solicitors for the Respondent:	Ms Jacky Vetter, Lawyer Department of Human Services