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

[2018] AATA 1341

Looney and Secretary, Department of Social Services (Social services second review) [2018] AATA 1341 (23 May 2018)

Division:GENERAL DIVISION 

2017/4538File Number:  

Re:Anthony Looney 

APPLICANT

Secretary, Department of Social ServicesAnd  

RESPONDENT

DECISION

Tribunal:  Senior Member P E Nolan

Date:  23 May 2018

Place:  Brisbane

The Tribunal affirms the decision under review.

.................................[Sgd].......................................

Senior Member P E Nolan

CATCHWORDS

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during the relevant period – whether Applicant had 20 impairment points – spinal condition – mental health condition – drug and alcohol dependence– lower limb condition – Applicant cannot be assigned impairment points – decision under review is 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

CASES

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

Fanning and Secretary, Department of Social Services [2014] AATA
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252

REASONS FOR DECISION

Senior Member P E Nolan

23 May 2018

INTRODUCTION

1. On 21 January 2016, Anthony Looney (the “Applicant”) applied for a Disability Support Pension (“DSP”).[1] In the portion of the DSP claim form, where the Applicant was to list his disabilities, illnesses or injuries, the Applicant provided that he suffered from: [2]

   (a)Liver Disease;

   (b)Bulging Discs in Neck and Lower Back;

   (c)Depression;

   (d)Carpal Tunnel Syndrome in Right Wrist;

   (e)Degenerative Tendon in Left Knee;

   (f)Chronic Gout;

   (g)Drug Dependence (Methamphetamine); and

   (h)Alcohol Dependence.

   [1] Exhibit 1, T-documents, T48 at pg. 180, DSP Claim Form dated 21 January 2016.

   [2] Ibid.

2. The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of his claim, 21 January 2016 or within 13 weeks thereafter, being until          21 April 2016 (the “Relevant Period”).

   HISTORY OF THE MATTER

3. The Applicant made contact with Centrelink on 11 January 2016 and subsequently made a claim for DSP on 21 January 2016. On 16 September 2016 the application was rejected on the basis that he did not attain an Impairment Rating of 20 points or more under the Impairment Tables.[3]

   [3] Exhibit 1, T-Documents, T53 at pg. 196, Centrelink notice: Rejection of DSP Claim, dated 16 September 2016.

4. The Applicant sought review by an authorised review officer (“ARO”) and the decision to reject the applicant’s claim was affirmed on 7 February 2017.[4] On 14 February 2017, the Applicant sought further review by the Social Security and Child Support Division of the Tribunal (“SSCSD”), which affirmed the decision to reject the application on 3 July 2017.[5]

   [4] Exhibit 1, T-Documents, T56 at pp. 200-203, ARO Decision and Notes dated 7 February 2017.

   [5] Exhibit 1, T-Documents, T2 at pp. 4-14, Decision of the Social Services and Child Support Division of the AAT, dated 3 July 2017.

5. On 2 August 2017, the Applicant sought review from the General Division of this Tribunal.[6] The hearing was conducted on 8 February 2018. The Applicant appeared before the Tribunal by phone. 

   [6] Exhibit 1, T-Documents, T1 at pp. 1-3, Application for Review, dated 2 August 2017.

   ISSUES FOR THE TRIBUNAL

6. The issues for the Tribunal to consider can be summarised as follows:

   (a)whether, during the relevant period, the applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;

   (b)whether, at the relevant time, the applicant’s conditions warranted an impairment rating of 20 points or more under the Impairment Tables, and if so;

   (c)whether the applicant has 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. 

7. Before determining the above, it is convenient to set out the relevant legislative framework.

   LEGISLATIVE FRAMEWORK

8. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the applicant has a physical, intellectual or psychiatric impairment; the applicant’s impairment is of 20 points or more under the Impairment Tables; and the applicant has a continuing inability to work.

9. The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim (in this case, 21 January 2016). There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[7] Therefore, the relevant period for considering whether the applicant qualified for DSP is between 21 January 2016 and 21 April 2016 (“the Relevant Period”). The applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[8]

   [7] Sections 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [33]

   [8] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs

10. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[9] 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.[10] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[11]

    [9] Section 26(1) of the Act.

    [10] Section 5(2) of the Determination.

    [11] Section 6(1) of the Determination.

11. Under the rules for applying Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[12] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not to persist for more than two years.[13]

    [12] Section 6(3) of the Determination.

    [13] Section 6(4) of the Determination.

12. In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or is planned in the next two years.[14]

    [14] Section 6(5) of the Determination.

13. A condition is “fully stabilised” if:

    (a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or

    (b)the person has not undertaken reasonable treatment for the condition and:

    (i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or

    (ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[15]

    [15] Section 6(6) of the Determination.

14. “Reasonable treatment” is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16] An impairment rating can only be assigned in accordance with the rating points in each Table.

    [16] Section 6(7) of the Determination.

15. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

16. The Respondent accepts that the Applicant had impairments for the purposes of subsection 94(1)(a) of the Act.[17] In light of the medical evidence, I am satisfied that concession is appropriate.

    [17] Respondent’s Statements of Facts, Issues and Contentions dated 28 November 2017 at [27].

17. I will now consider whether each of the Applicant’s impairments can attain impairment points under the Tables.

    Spinal Condition

18. The Applicant has a lengthy history of back injuries, documented by medical and legal evidence as summarised below. The Respondent concedes that the Applicant’s spinal condition was fully diagnosed, but contends that it was not fully treated or stabilised before or during the qualification period.[18]

    [18] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2017 at [29].

19. At hearing, the Applicant gave evidence that his spinal condition has been under constant medical review since 1980. The medical evidence before the Tribunal consists of various reports from medical professionals dating back to 2002.[19] In 2002, Dr Christine Campbell conducted a CT scan of the Applicant’s lumbar spine and reported a minor annulus bulge at the L3/4, L4/5 and L5/S1 levels with no bony abnormalities present.[20] In 2003, the Applicant successfully pursued a workers compensation claim, in which his employer accepted liability for a 7.5% permanent impairment of the back.[21] Dr David Campbell conducted an x-ray of the Applicant’s thoracic spine in 2004 and reported a “slight mid thoracic scoliosis convex to the right” with minimal degenerative changes.[22] In 2007,        Dr Christine Campbell conducted an x-ray on the Applicant’s lumbosacral spine and reported normal alignment of the vertebral bodies with no underlying bone abnormality.[23]

    [19] Exhibit 1, T-documents, T4 at p. 66, Central Queensland (Qld) Medical Imaging CT Scan: Lumbar Spine – Dr Campbell, dated 18 April 2002.

    [20] Ibid.

    [21] Exhibit 1, T-documents, T7 at p. 72, Compensation Court of NSW – Terms of Settlement dated 30 May 2003.

    [22] Exhibit 1, T-documents, T5 at p. 67, Central Qld Medical Imagine X-ray: Thoracic Spine – Dr Campbell dated 26 May 2004.

    [23] Exhibit 1, T-documents, T6 at pg. 68, Central Qld Medical Imagine X-ray: Lumbar Spine – Dr Campbell, dated 5 June 2007.

20. In 2009, the Applicant again sustained a work injury to his neck and upper back.[24] In October 2010, a CT scan of his lumbar spine revealed a “straightening of lumbar curvature, which may be positional or secondary to muscular spasm.” Dr Gaurav Khera concluded that minor diffuse disc bulges at multiple lumbar discs between the L2 and S1 levels were present, however there was “no significant focal disc herniation or nerve root impingement.”[25]

    [24] Exhibit 1, T-documents, T7 at pg. 70, Workers’ Compensation Medical Certificate dated 5 September 2009; T7 at pg. 71, Accident/Injury Report Form dated 14 May 2009.

    [25] Exhibit 1, T-documents, T8 at pg. 76, Bolsover Radiology CT Scan: Lumbar Spine – Dr Khera, dated 19 October 2010.

21. In 2014, Dr Viray reported that the Applicant suffered from Disc Prolapse of the L5/S1, but was of the opinion that it was an exacerbation of an existing condition and likely to considerably improve within 2 years.[26] The Applicant was referred to an orthopaedic specialist at the Royal Brisbane and Women’s Hospital by Dr Vivian Pam in November 2014, for review and a possible plan for surgery.[27] In August 2015, Dr Riasat recorded that the Applicant’s prognosis was uncertain, and listed painkillers and physiotherapy as a future treatment regime.[28]

    [26] Exhibit 1, T-documents, T19 at pg. 91, Centrelink Medical Certificate – Dr Viray, dated 18 June 2014.

    [27] Exhibit 1, T-documents, T26 at p. 103-104, Mandalay Medical Centre: Letter from Dr Pam to the Royal Brisbane and Women’s Hospital (RBWH), Orthopaedic Spinal Surgeon dated 11 November 2014.

    [28] Exhibit 1, T-documents, T44 at p. 149, Centrelink Medical Certificate – Dr Riasat, dated 10 August 2015.

22. On 5 January 2018, Dr Niraj Mohan completed a questionnaire for the purpose of this review.[29] The report was completed over a year and a half after the Relevant Period, and therefore weight can only be placed on the extent to which the report casts light on the Applicant’s condition during the Relevant Period.[30] The report makes no reference to the Applicant during the Relevant Period, and accordingly I cannot rely on this report for this DSP application.

    [29] Exhibit 2, Medical Report/Questionnaire from 15 January 2018 at p 5.

    [30] Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252.

23. During the hearing, the Applicant gave evidence that he was still on the waiting list to see a specialist at the Royal Brisbane and Women’s Hospital, and had recently been notified that he would remain on the waiting list for a further 12 months before an appointment would be available. The Applicant stated that if surgery was recommended however, he would refuse due to the high risks involved.

24. During the hearing, the Applicant gave evidence that he attended two physiotherapy sessions before being discharged from the Physiotherapy Outpatient Clinic, corroborated by the medical records, which indicated that he was recommended to pursue a non-surgical pathway including general strengthening programs.[31] During cross-examination, the Applicant stated that he did not partake in chronic pain management, despite it being recommended, as the closest public provider was located 5 hours’ away from the Applicant. He confirmed that he was also advised to consult a chiropractor, but stated that he could not afford the cost of the consultations. The Applicant gave further evidence that he was hesitant to attend chiropractic sessions as he has since been diagnosed with arthritis of the back, and is waiting to consult a specialist before he takes further action, to minimise risk of injury.

    [31] Exhibit 1, T-documents, T38 at p. 143, Central Qld Health Service District: Physiotherapy New Patient Assessment – Mr Orr, dated 26 May 2015.

25. To be fully treated, consideration must be given to the treatment or rehabilitation that has occurred in relation to the condition and if any treatment is to be continued or planned.[32] The medical evidence provides that the Applicant has in the past treatment in the form of painkillers, physiotherapy and hydrotherapy in the past, however, it is clear that all possible treatment options were not taken during the Relevant Period. The Applicant is still awaiting specialist consultation to determine his further treatment options.

    [32] Subsections 5(b) and (c) of The Determination.

26. In light of the medical and oral evidence available to the Tribunal, it is clear that while the Applicant’s back condition is fully diagnosed, it is not fully treated or fully stabilised. Accordingly, I cannot assign an Impairment Rating for this condition.

    Mental Health Condition

27. The Respondent concedes that the Applicant’s mental health condition was fully diagnosed, but contends that it was not fully treated or stabilised during the Relevant Period.[33]

    [33] Respondent’s Statements of Facts, Issues and Contentions, dated 28 November 2017 at [33].

28. In 2013, Dr Viray, GP, reported a diagnosis of anxiety/depression, but was of the opinion that the condition was likely to show considerable improvement within 2 years.[34] Dr Viray reported that the future treatment regime consisted of antidepressants and a referral to a psychologist.[35] The Applicant gave evidence to a Centrelink registered psychologist during an Employment Services Assessment (‘ESA’) in November 2013 that the onset of his depression was triggered by a relationship breakdown in 2008, and had commenced antidepressant medication in November 2013 and that he had a follow-up appointment with a psychologist.[36] In July 2014, the Applicant reported to the Centrelink registered psychologist during an ESA that he no longer suffered from any functional impact of his mental health condition, as some of the stressors had subsided. The Applicant reported that the antidepressant medication had improved his symptoms at that time.[37]

    [34] Exhibit 1, T-documents, T13 at p. 82, Centrelink Medical Certificate – Dr Viray, dated 21 October 2018.

    [35] Ibid.

    [36] Exhibit 1, T-documents, T14 at p. 83, Employment Services Assessment Report dated 11 November 2013.

    [37] Exhibit 1, T-documents, T20 at p. 92, Employment Services Assessment Report dated 1 July 2014.

29. The Applicant was provisionally diagnosed in 2015 by Dr Alan Keen, Clinical Psychologist with Persistent Depressive Disorder.[38] The Applicant reported that he had been severely emotional and experienced severe sadness and depression for most of the day, nearly every day, for 7 years. He reported a suicide attempt in 1990, but no attempts since.[39] Dr Keen reported that he noticed problems with the Applicant’s mood and affect. Dr Keen recommended that the Applicant have monthly appointments with his GP and psychotherapy treatment intervention for his depressed mood and affect. [40]

    [38] Exhibit 1, T-documents, T34 at p. 134, Qld Health Specialists, Dr Keen: Letter to Dr Mohan dated 30 April 2015

    [39] Ibid.

    [40] Ibid.

30. During the hearing, the Applicant stated that he attended one counselling session with      Dr Glenys Conrade, Psychologist, in 2014, two counselling sessions with Dr Keen, and the treatment from thereon was carried out by Dr Mohan, his GP. From the medical records available to the Tribunal, it is evident that the Applicant saw Dr Fatima Riasat, GP, in August 2015 in relation to his depression following Dr Keen’s diagnosis,[41] however there is no evidence that the Applicant continued to pursue the treatments recommended by Dr Keen.  

    [41] Exhibit 1, T-documents, T45 at p. 150, Centrelink Medical Certificate – Dr Riasat dated 10 August 2015.

31. In his application for DSP, the Applicant wrote that he was taking medication for his depression at that time. Dr Mohan, GP, further described the Applicant’s mental health condition in his report of January 2018. However, as discussed above, this report does not refer to the Applicant’s condition during the Relevant Period and is therefore precluded from being of assistance in this application.

32. During the hearing, the Applicant gave evidence that he attempted suicide in December 2017, and is on a waiting list to see a psychologist. The Applicant stated during the hearing that he did not return to see Dr Keen as he felt frustrated that the psychologist was ignorant and did not listen. The Applicant stated that at some stage after being prescribed antidepressants by his GP, he was weaned off the medication and was mentally stable, however after being rejected from DSP and the subsequent separation from his son, he fell back into a depressive state.

33. Considering the Applicant’s oral evidence that he is still waiting for further specialist treatment for his mental health condition, and that he was weaned off of antidepressants shortly before his DSP claim was rejected in September 2016,  while the condition was fully diagnosed, I cannot be satisfied that it was fully treated or stabilised during the Relevant Period. Therefore, I cannot assign an Impairment Rating for this condition. 

    Drug and Alcohol Dependence

1. The Applicant was provisionally diagnosed in 2015 by Dr Alan Keen, Clinical Psychologist with Alcohol Use Disorder and Amphetamine Type Substance Use Disorder.[42] The Respondent accepts that these conditions were fully diagnosed during the Relevant Period, but contends that they were not fully treated or stabilised.[43]

   [42] Exhibit 1, T-documents,T34 at p. 134, Qld Health Specialists, Dr Keen: Letter to Dr Mohan dated 30 April 2015.

   [43] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2017 at [36].

2. The Applicant reported to Dr Keen that he drank a litre of wine a day, and had increased his drinking intake as he missed his son. The Applicant further reported that he used to smoke marijuana for 20 years, but had stopped smoking 5 years ago.[44] In his oral evidence to the Tribunal, the Applicant confirmed that he stopped smoking marijuana in 2010.

   [44] Exhibit 1, T-documents,T34 at p. 133, Qld Health Specialists, Dr Keen: Letter to Dr Mohan dated 30 April 2015.

3. The Applicant reported to Dr Keen that he began using methamphetamines 6 years prior to the appointment, and continued to use an average of $100 worth of methamphetamines a week.[45] In October 2016, a Clinical Nurse at the Rockhampton Alcohol and Other Drug Services (‘AODS’) wrote to confirm that the Applicant attended five sessions from October to December of 2015.[46]

   [45] Ibid.

   [46] Exhibit 1, T-documents, T55 at p. 199, Central Qld Hospital and Health Service, Alcohol and Other Drug Services: Letter re: Applicant – Mr Jose, dated 24 October 2016.

4. The Applicant confirmed during the hearing that he had ongoing problems with his alcohol and methamphetamine dependence, however there is no evidence available to the Tribunal regarding any continued or planned treatment during the Relevant Period. In these circumstances, while the condition was fully diagnosed, I cannot be satisfied that these conditions were fully treated or stabilised during the Relevant Period and cannot assign an Impairment Rating.

   Carpal Tunnel Syndrome

5. The Respondent accepts that the Carpal Tunnel syndrome was fully diagnosed, but contends that it was fully treated or fully stabilised during the Relevant Period.[47]

   [47] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2017 at [40].

6. Nerve conduction studies undertaken on 7 September 2015 found proximal thickening of the right median nerve, compatible with carpal tunnel syndrome.[48] On 22 February 2016, Cory Matulino, Physiotherapist reported that the Applicant had been diagnosed with Carpal Tunnel syndrome in the right arm through the nerve conduction study, but that no surgery had been recommended at the time the report was written.[49]

   [48] Exhibit 1, T-documents, T46 at p. 152, Rockhampton Base Hospital: Neurophysiology Report – Dr Thomas, dated 7 September 2015.

   [49] Exhibit 1, T-documents, T49 at p. 185, CIM Employment, Allied Health Progress-Hydrotherapy: Letter re: Applicant – Mr Matulino, dated 22 February 2016.

7. In his application for DSP, the Applicant wrote that he was still on a waiting list for carpal tunnel.[50] During the Job Capacity Assessment (‘JCA’) Interview in August 2016, the Applicant told the JCA that he was awaiting a steroid injection to his right wrist and specialist reviews.[51] The Applicant confirmed to the ARO in February 2017 that he was awaiting cortisone injection for the condition and may require decompression surgery.[52] While both the JCA and ARO interviews were conducted after the Relevant Period, it is evident that although this condition was fully diagnosed, it was not fully treated or stabilised before, or during the Relevant Period. I therefore cannot assign an Impairment Rating for this condition.

   [50] Exhibit 1, T-documents, T49 at p. 180, DSP Claim form dated 21 January 2016.

   [51] Exhibit 1, T-documents, T52 at p. 193, Job Capacity Assessment Report dated 16 September 2016.

   [52] Exhibit 1, T-documents, T 56 at p. 202, ARO Decision and Notes dated 7 February 2017.

   Left Knee Condition

8. The Respondent contends that the Applicant’s gouty arthritis in his left knee was fully diagnosed, but not fully treated or stabilised during the Relevant Period.[53] The medical records available to the Tribunal indicate that the Applicant was diagnosed with gouty arthritis on 18 January 2012.[54]  Further diagnoses of patellar tendinopathy and patellar tendinosis have been noted in the medical reports.[55]

   [53] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2017 at [43].

   [54] Exhibit 1, T-documents, T26 at p. 104, Mandalay Medical Centre: Letter from Dr Pam to the Royal Brisbane & Women’s Hospital (RBWH), Orthopaedic Spinal Surgeon dated 11 November 2014.

   [55] Exhibit 1, T-documents, T33 at  p. 130, Central Qld Health Service District: Physiotherapy Initial Assessment – Mr Orr, dated 14 April 2015; T35 at p. 135, Central Qld Health Service District: Ambulatory Registration & Clinical Notes Downtime Form – Physiotherapy Outpatients, dated 1 May 2015.

9. The Applicant presented to the Rockhampton Hospital Emergency Department in December 2014 after being unable to bear weight on his left leg. The attending clinician noted that the knee was grossly swollen, with “predominantly suprapatellar swelling and a warm joint.”[56] He was discharged after being placed on a five day course of multiple medications including prednisolone, indomethacin, pantoprazole and panadeine, and was advised to cease his gout medication until the exacerbation had passed. 

   [56] Exhibit 1, T-documents, T30 at p. 118. Rockhampton Hospital: Discharge Summary – Dr Sigle, dated 23 December 2014.

10. In April 2015, the Applicant was provisionally diagnosed with patellar tendinosis of the left knee, and was advised to engage in therapeutic exercise for treatment.[57] After an assessment with Stuart Orr, Advanced Musculoskeletal Physiotherapist, Mr Orr observed the Applicant to have “no loss of knee movements,” but had “tenderness … over the superior aspect of the patellar tendon near insertion to inferior pole of patella.”[58] Mr Orr placed the Applicant on a conservative pathway, as he did not consider further orthopaedic intervention was required at that stage.[59]

    [57] Exhibit 1, T-documents, T33 at p. 130. Central Qld Health Service District: Physiotherapy Initial Assessment – Mr Orr, dated 14 April 2015.

    [58] Exhibit 1, T-documents, T36 at p. 137, Rockhampton Hospital, Mr Orr: Letter to Dr Viray dated 4 May 2015.  

    [59] Ibid.

11. After being referred to the Physiotherapy Outpatient Clinic by Mr Orr, the Applicant failed to attend his scheduled appointment.[60]  

    [60] Exhibit 1, T-documents, T37 at p. 138, Central Qld Health Service District, Physiotherapy Dept: Letter to Applicant, dated 19 May 2015. 

12. During the hearing, the Applicant gave evidence that physiotherapy was ineffective in treating this condition. The Applicant also advised the Tribunal that he was allergic to the preventative medication for gout, and the only treatment option available to him was managing the condition through his diet. The Applicant contended that this condition is chronic, and therefore permanent. 

13. Having regard to the lack of evidence before the Tribunal, while I accept that the condition was fully diagnosed, I cannot be satisfied that it was fully treated or stabilised as he did not undertake the treatment that had been recommended. While the Applicant gave oral evidence that physiotherapy was ineffective and therefore may not be ‘reasonable’ within the meaning of the Determination, there is no corresponding evidence from a medical professional to that effect. Accordingly, I cannot assign an Impairment Rating for this condition.

    Conclusion as to Points

14. I have concluded that none of the Applicant’s impairments can be considered permanent, and I therefore cannot assign any points under the Impairment Tables.

    Continuing Inability to Work

15. The Respondent concedes that the Applicant actively participated in a program of support as required by subsection 94(2)(aa) of the Act, however contends that he did not have a continuing inability to work as defined in subsections 94(2)(a) or (b) of the Act.[61]

    [61] Respondent’s Statement of Facts, Issues and Contentions dated 28 November 2017 at [49].

16. However, given that the Applicant cannot be assigned any Impairment Points under the Impairment Tables, I do not need to consider whether the Applicant satisfied the criteria of section 94(2) of the Act.

    DECISION

17. The Applicant does not qualify for DSP. Accordingly, the decision under review is affirmed.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

..................................[Sgd]......................................

Associate

Dated: 23 May 2018

Date of hearing:	8 February 2018
Applicant:	By telephone
Advocate for the Respondent:	Ms Jacky Vetter

[2012] AATA 922 at [34].