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

[2024] AATA 3362

Lothian and Secretary, Department of Social Services (Social services second review) [2024] AATA 3362 (20 September 2024)

Division:GENERAL DIVISION

File Number:2023/5473          

Re:Mr Timothy Lothian  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Tribunal:Senior Member B. Pola

Date:20 September 2024

Place:Brisbane

DECISION

Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 16 June 2023, to reject the applicant’s claim for the Disability Support Pension.

..............[SGD]...............

Senior Member B. Pola

CATCHWORDS

SOCIAL SERVICES – Eligibility for Disability Support Pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth).

Social Security (Active Participation for Disability Support Pension) Determination 2014 (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

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

Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
Fanning and Secretary, Department of Social Services [2014] AATA 447.
Faulkner and Comcare [2007] AATA 1541.
Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA 2745.
Robinson and Secretary, Department of Social Services (Social services second review) [2024] AATA 240.

REASONS FOR DECISION

Senior Member B. Pola

20 September 2024

BACKGROUND

1. On 9 August 2022, the applicant, Mr Timothy Lothian, lodged a claim for the Disability Support Pension (herein referred to as the ‘DSP’) with Services Australia (herein referred to as the ‘Agency)[1].

   [1] Exhibit TR1, T44, pages 202 to 212.

2. On 20 September 2022, the applicant was advised by the Agency that his claim for the DSP was rejected[2].  

   [2] Exhibit TR1, T47, pages 223 and 224.

3. The decision to reject the applicant’s claim for the DSP was affirmed by an Authorised Review Officer (herein referred to as an ‘ARO’) after an internal review by the Agency on     9 February 2023[3].

   [3] Exhibit TR1, T48, pages 225 to 231.

4. The applicant applied to the Social Services and Child Support Division (herein referred to as the ‘SSCSD’) of the Administrative Appeals Tribunal (herein referred to as the ‘Tribunal’), to review the Agency’s decision to reject his claim for the DSP. On 16 June 2023, the SSCSD of the Tribunal affirmed the decision to reject the applicant’s claim for the DSP[4].

   [4] Exhibit TR1, T2, pages 7 to 25.

5. The applicant applied to the General Division of the Tribunal for a second review of this decision on 23 July 2023[5].

   [5] Exhibit TR1, T1, pages 1 to 6.

   JURISDICTION

6. This is an application to review a decision of the SSCSD of the Tribunal, which affirmed an earlier decision of the respondent to reject the applicant’s claim for the DSP.

7. The applicant’s claim of 9 August 2022 has been reviewed in accordance with section 135 of the Social Security (Administration Act) 1999 (Cth) (herein referred to as the ‘Administration Act’) by an ARO, per their decision dated 9 February 2023. The SSCSD of the Tribunal subsequently reviewed the decision of the ARO and published its reasons on 16 June 2023.

8. In accordance with subsection 179(1) of the Administration Act, the Tribunal therefore has jurisdiction to review the applicant’s DSP claim of 9 August 2022.

   ISSUES

9. The issue before the Tribunal for consideration is whether the applicant was medically qualified to receive the DSP in the 13-week period from 9 August 2022 to 8 November 2022 (herein referred to as the ‘Qualification Period’)[6], is:

   (a)whether the applicant had impairment(s) during the Qualification Period in accordance with subsection 94(1)(a) of the Social Security Act 1991 (Cth) (herein referred to as the ‘Act’); and if so

   (b)whether the applicant’s impairment(s) attract 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 (Cth)[7] (herein referred to as the ‘Determination’) within the Qualification Period for the purpose of subsection 94(1)(b) of the Act; and if so

   (c)whether the applicant had a continuing inability to work as defined in subsection 94(2) of the Act, for the purpose of subsection 94(1)(c) of the Act.

   [6] The Qualification Period is discussed in later paragraphs of this decision.

   [7] The Tribunal notes a new Determination took effect from 1 April 2023, but for the purposes of the present

   RELEVANT LEGISLATIVE FRAMEWORK

10. The medical qualification criteria regarding eligibility for the DSP are set out in paragraphs (a), (b) and (c) of subsection 94(1) of the Act:

    94 Qualification for disability support pension

    (1)A person is qualified for disability support pension if:

    (a)the person has a physical, intellectual or psychiatric impairment; and

    (b)the person’s impairment is of 20 points or more under the Impairment Tables; and

    (c)one of the following applies:

    (i)the person has a continuing inability to work;

    (ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system

11. To be medically qualified for the DSP, a person must therefore have a physical, intellectual, or psychiatric impairment, that has a total rating of at least 20 points under one or several Impairment Tables, and a continuing inability to work which, in some circumstances, includes participation in a Program of Support (herein referred to as a ‘POS’).

12. Subsection 26(1) of the Act provides that, “…the Minister may, by legislative instrument, determine tables relating to the assessment of work-related impairment for disability support pension”.

13. It is the Tribunal’s role to stand in the shoes of the original decision-maker[8] and determine whether the decision was the correct or preferable one based on the material before it[9].

    [8]   Faulkner and Comcare [2007] AATA 1541 at [27].

    [9]   Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; (1979) 46 FLR 409, 419 (per

14. Given this, the Tribunal must make its decision in accordance with the Determination which came into effect from 1 January 2012. The following paragraphs outline key sections of the Determination.

15. Section 6 of the Determination provides that, “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”[10]. Further, the Impairment Tables in the Determination may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered[11].

    [10] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension)

    [11]  Ibid, subsection 6(2).

16. Subsection 6(3) of the Determination provides that an Impairment Rating may only be assigned to an impairment if:

    (a)the person’s condition causing the impairment is permanent; and

    (b)the impairment that results from that condition is more likely than not, in light of evidence, to persist for more than two years.

17. Further, for a condition to be considered permanent pursuant to subsection 6(3)(a) of the Determination, the condition must also:

    (a)be fully diagnosed by an appropriately qualified medical practitioner; and

    (b)be fully treated; and

    (c)be fully stabilised; and

    (d)be more likely than not, in light of available evidence, to persist for more than two years[12].

    [12]  Ibid, subsection 6(4).

18. When considering whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether the condition has been fully treated, the following is also to be considered:

    (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 two years[13].

    [13]  Ibid, subsection 6(5).

19. A condition is 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 two 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 two 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[14].

    [14]  Ibid, subsection 6(6).

20. Reasonable treatment is a treatment that:

    (a)is available at a location reasonably accessible to the person; and

    (b)is at a reasonable cost; and

    (c)can reliably be expected to result in a substantial improvement in functional            capacity; and

    (d)is regularly undertaken or performed; and

    (e)has a high success rate; and

    (f)carries a low risk to the person[15].

    [15] Ibid, subsection 6(7).

21. Subsection 6(8) of the Determination provides that, “the presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned”. Subsection 6(9) of the Determination sets out circumstances to be considered in relation to pain.

22. Sections 7 to 11 of the Determination provide guidance as to how the Impairment Tables should be used to assess information and evidence, and how to assign Impairment Ratings.

23. In particular, subsection 8(1) of the Determination provides that, “symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence”.

24. Subsection 11(1)(c) of the Determination provides that in assigning an Impairment Rating, “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied”.

    Continuing inability to work

25. As previously detailed in earlier reasons of this decision, subsection 94(1)(c)(i) of the Act states that in order to qualify for the DSP, a person must have a, “continuing inability to work”. Subsection 94(2) of the Act stipulates that:

    (2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:

    (aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support—the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and

    (a)in all cases—the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and

    (b)in all cases—either:

    (i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or

    (ii)if the impairment does not prevent the person from undertaking a training activity—such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.

26. A “severe impairment” is defined in subsection 94(3B) of the Act:

    A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.

27. Subsection 94(3C) of the Act states that:

    A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.

28. The Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (herein referred to as the ‘Participation Determination’) came into effect on   3 January 2015, and sets out the requirements for ‘active participation’ for those people required to demonstrate they have actively participated in a POS.

    QUALIFICATION PERIOD

29. Schedule 2, Part 2, clause 4(1) of the Administration Act outlines that the Qualification Period for a social security payment occurs within the 13 weeks after the day on which the claim is made. Where a person subsequently becomes qualified after the lodging of the claim, the commencement date for the DSP is the date on which the claimant becomes qualified[16].

    [16] Social Security (Administration Act) 1999 (Cth), Schedule 2, Part 2, section 4(1)(d).

30. For the purposes of this decision, the day which the applicant’s claim for the DSP was lodged with the Agency was 9 August 2022[17] and concluded 13 weeks after that day. The Tribunal finds the 13-week period ended on 8 November 2022.

    [17] Exhibit TR1, T44, pages 202 to 212.

31. This means that for a claim to be successful, the person must be qualified for the DSP during this Qualification Period, noting that changes in medical conditions which occur later are not relevant to this claim, but may be relevant to a separate future claim. Further evidence (medical or other) provided outside the Qualification Period may be considered if it is referable to the applicant’s condition during the Qualification Period[18].

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

    CONSIDERATION

32. The application was part heard in Brisbane on 17 April 2024, with all parties appearing by telephone as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The applicant was self-represented, and the respondent was represented by Mr Chris West (Sparke Helmore) at the 17 April 2024 hearing, and Ms Madi Rush (Sparke Helmore) at the resumed hearing on 13 August 2024. The hearing was adjourned on 17 April 2024 due to the applicant’s request to obtain legal representation. On the same day, the Tribunal directed the applicant to provide any further materials or submissions which he intended to rely upon to the respondent and Tribunal by 17 May 2024, including whether he intended to proceed with his application.

33. In the absence of the applicant filing any further submissions or informing the Tribunal he had sought legal representation, the Tribunal held a telephone directions hearing on  11 July 2024, in order to ascertain if the applicant wished to proceed with his application and if he intended to lodge any further submissions. The applicant confirmed he still wished to proceed and that he had no further submissions to be lodged with respect to his application. A resumed hearing was held in Brisbane on 13 August 2024, again by way of telephone.

34. The Tribunal has considered oral submissions made by the applicant and respondent, in addition to submitted documentary evidence, as outlined in the Exhibit Register (marked as Annexure 1 at the end of these reasons).

    Subsection 94(1)(a) of the Act

    (Physical, intellectual, or psychiatric impairment)

35. It is not in contention that the applicant suffers from an impairment relevant to this application with respect to his medical eligibility for the DSP[19]. In the applicant’s original application for the DSP, he listed the following conditions as part of his claim, “Heart disease Arthritis depression…”[20]. On review of the corroborative medical evidence before the Tribunal, the following impairments are considered relevant to this application by the Tribunal:

    (a)heart condition;

    (b)osteoarthritis of right hip;

    (c)right knee condition;

    (d)osteoarthritis of the left knee;

    (e)depression;

    (f)hearing loss and tinnitus; and

    (g)neck pain.

    [19] Exhibit R1, page 7, paragraph 4.24.

    [20] Exhibit TR1, T44, page 208.

36. The Tribunal notes there is reference in the corroborative medical evidence of other impairments of the applicant, including: a spinal condition[21]; hernia repair[22]; diabetes[23]; left shoulder condition[24]; right arm bicep lipoma[25]; gastro oesophageal reflux disease[26]; hypertension[27]; peripheral neuropathy[28]; chronic lung disease[29]; foot corn[30]; asthma[31] and thrombosis risk[32]. With respect to these listed medical conditions, the Tribunal is of the view there is a lack of detail in the evidence which indicates the following:

    (i)a prognosis;

    (ii)whether the conditions had been treated and stabilised;

    (iii)confirmation of whether the conditions were permanent;

    (iv)past or current recommended treatments; or

    (v)whether the conditions were more likely than not to exist for more than two years.

    [21] Exhibit TR1, T39, page 195.

    [22] Exhibit TR1, T19, pages 133 to 135.

    [23] Exhibit TR1, T31, page 178; T33, pages 180 to 185; and T34, pages 186 to 189.

    [24] Exhibit TR1, T23, page 144.

    [25] Exhibit TR1, T32, page 179.

    [26] Exhibit TR1, T33, pages 180 to 185; and T34, pages 186 to 189.

    [27] Exhibit TR1, T33, pages 180 to 184; and T34, pages 186 to 189.

    [28] Exhibit TR1, T35, page 190.

    [29] Exhibit TR1, T20, page 136.

    [30] Exhibit TR1, T2, page 12.

    [31] Exhibit TR1, T27, page 163; T28, pages 170 and 171; and T35, page 190.

    [32] Exhibit TR1, T34, pages 186 to 189.

37. Therefore, given the lack of further corroborative medical evidence with respect to the above-mentioned impairments, the Tribunal was unable to consider them as part of the application.

    Subsection 94(1)(b) of the Act

    (Is a person’s impairment 20 points or more under the Impairment Tables)

38. The Tribunal will now consider each impairment identified with respect to the application of subsection 94(1)(b) of the Act, and whether they meet the relevant provisions contained within the Determination.

    (a)Heart condition

39. An outpatient report from Prince Charles Hospital dated 9 January 2019, diagnosed the applicant with “Triple vessel disease”, with the applicant undergoing coronary bypass surgery. The report recommended the applicant, “… have a follow up appointment at the Cardiothoracic Specialist's Outpatient Department in six weeks…”[33]. This outpatient report also outlined prescribed medications for the applicant to treat his heart condition. On the basis of this outpatient report, the Tribunal is satisfied the applicant’s heart condition is fully diagnosed prior to the Qualification Period for his application for the DSP.

    [33] Exhibit TR1, T26, pages 153 to 160.

40. However, the Tribunal is not satisfied that the available corroborative medical evidence supports a finding that the applicant’s heart condition is considered fully treated and fully stabilised.

41. ARO review notes from 9 February 2023, state the applicant told the reviewer that, “… he underwent the cardiac rehabilitation program for 6 months following the surgery…”[34]. The Tribunal notes that there is no corroborative medical evidence before the Tribunal to support this statement.

    [34] Exhibit TR1, T48, page 231.

42. The applicant told the Tribunal at the hearing that, despite the diagnosis and follow up treatment referred to above, he continued to suffer unexplained chest pain. The Tribunal concurs with the respondent’s submission, that there is limited corroborative medical evidence to assess the impact of the applicant’s heart condition on his functional capacity[35].

    [35] Exhibit R1, paragraph 4.33, page 8.

1. The Tribunal notes a form completed by the applicant’s treating General Practitioner (herein referred to as “GP”), asks the applicant’s GP to consider the applicant’s heart condition on his ability to function on or before 8 November 2022 (during the Qualification Period for this application)[36]. With respect to the GP’s opinion regarding the applicant’s functional capacity, he stated[37]: 

   “… Short of breath & fatigue due to overweight (obese) BMI 41.1, poor ability to exercise at all due to asthma, R Hip OA, R knee operation…”

   [36] Exhibit TR2, ST5, pages 6 to 10. The Tribunal notes the form completed by the GP is dated  

   2 November 2023, which post-dates the Qualification Period for this application. However, given the form

   directs the GP to consider the applicant’s ability to function (as a consequence of his heart condition) on or

   before 8 November 2022, the Tribunal accepted this evidence as referrable to the Qualification Period for this

   application.

   [37] Exhibit TR2, ST5, page 7.

2. Given the available corroborative medical evidence does not distinguish the symptoms described above with respect to the applicant’s heart condition from his other impairments, the Tribunal is unable to assess the functional impact of the applicant’s heart condition.

3. For the reasons outlined, whilst the Tribunal considers the applicant’s heart condition as fully diagnosed, given the state of the available corroborative medical evidence, the Tribunal is unable to determine if the applicant’s heart condition was fully treated and fully stabilised in accordance with the Determination prior to or during the Qualification Period for this application, and as such, an Impairment Rating could not be assigned. 

   (b) Osteoarthritis of right hip  

4. Medical imaging by way of x-ray was undertaken on the applicant’s right and left hips on 18 May 2022, and found the applicant had moderate to severe osteoarthritis in the right hip joint, the Tribunal refers[38]:

   “…  Moderate to severe OA in the right hip joint. Joint space reduction and mild osteophytosis is seen. Mild-to-moderate OA left hip joint. Early osteoarthritic changes in both SI joints. Bones and soft tissues are normal…”

   [38] Exhibit TR1, T36, page 191; repeated at T37, page 192.

5. The Tribunal notes that a letter dated 6 September 2023 by a Dr Cavaye at the Sunshine Coast University Hospital stated the following with respect to the applicant[39]:

   “… His main issue is his severe Right hip OA limiting his daily activities and causing ongoing pain…

   …

   … we have booked Timothy for a Cat 3 Right THR. He has been referred for an anaesthetics review prior to his operation. In the interim I wish him the best on his ongoing weightloss efforts…”  

   [39] Exhibit TR2, ST4, page 5. The Tribunal observes the above corroborative medical evidence postdates the

6. The Tribunal observes the applicant was placed on the waitlist for a total right hip replacement some ten months following the Qualification Period for this application[40]. At the hearing, the applicant was asked to confirm the status of his impending surgery, to which the applicant confirmed he was still on the waitlist.

   [40] Exhibit TR2, ST2, page 2.

7. The Tribunal is satisfied the applicant’s osteoarthritis of his right hip had been fully diagnosed prior to the Qualification Period for this application, however in circumstances where the applicant is still waiting treatment (by way of a total right hip replacement surgery), following the Qualification Period for this application, the Tribunal cannot consider the applicant’s impairment to be fully treated and fully stabilised in accordance with the Determination, prior to or during the Qualification Period for this application. As such, an Impairment Rating could not be assigned.

   (c) Right knee condition

8. A discharge summary dated 20 June 2021 from the Nambour Hospital confirms the applicant underwent surgery for a total right knee replacement[41]. The discharge summary recommended the applicant, amongst other things, attend an outpatient appointment following his surgery at six weeks, and to follow the instructions of his physiotherapist. The Tribunal notes this discharge report confirmed the applicant suffered osteoarthritis in his right knee. On the basis of this discharge summary, the Tribunal is satisfied that the applicant’s right knee condition was fully diagnosed at the Qualification Period for this application.

   [41] Exhibit TR1, T33, pages 180 to 185.

9. There is some corroborative medical evidence before the Tribunal which reports that following the applicant’s total right knee replacement surgery in June 2021, he suffered ongoing issues with his right knee, set out in the following reasons.

10. The applicant further attended Sunshine Coast University Hospital in September 2021 following stiffness in his knee[42]. In December 2021, the applicant was reviewed by an exercise physiologist, who recommended the applicant undertake eight exercise physiology group sessions[43].

    [42] Exhibit TR1, T34, pages 186 to 189.

    [43] Exhibit TR1, T35, page 190.

11. A letter from the applicant’s physiotherapist dated 5 August 2022 stated[44]:

    “… Tim has been under my care regarding his bilateral knee pain and right sided posterior hip pain since March 2022 until current. Over this time, despite compliance with his exercise program, we have made no improvements in his pain or function at his hip or his knees…”

    [44] Exhibit TR1, T41, page 198.

12. On 8 August 2022, the applicant’s treating GP wrote to the Sunshine Coast University Hospital Surgical Outpatients unit with respect to the applicant’s poor recovery post-surgery for his total right knee replacement, it stated[45]:

    “… Thank you for seeing the above named patient has had a poor recovery post TKR, has a chronic swelling, also suffering from OA hip as per imaging for which he wants a review as mentioned in specialist assessment last time. Knee is always swollen, had a MUA as well after TKR at the right knee. Thank you for your review, I look forward to hearing the outcome of Timothy's attendance…”

    [45] Exhibit TR1, T42, page 199.

13. In contrast to the above reports from the applicant’s physiotherapist and GP, with respect to the applicant’s right knee condition following his total knee replacement surgery, Dr Dawra (conducting a specialist review), in a letter dictated on 7 June 2022 (who reviewed the applicant through her clinic), stated the following with respect to the applicant’s right knee condition following a consultation[46]:

    “…  Tim is now one year post right total knee replacement which he had a manipulation done under anaesthetic three months later for stiffness. He has been progressing well since the procedure. He denies any pain and walks without an aid. His main concern is some residual swelling to the knee and a feeling of tightness particularly when he tries to push in terms of flexion. He also reports right sided lateral thigh and buttock pain but not much of groin pain. His walking is mainly limited because of his hip and thigh pain.

    On examination Tim's knee wound has healed very well. He has a mild effusion to the knee with no crepitus to the patello-femoral joint which tracks normally. He has an excellent range of movement of 0-110° and the knee is stable. His hip examination does show a fixed flexion deformity of 10°. He has significant limitation to internal rotation of his hip with an external rotation of only 30° and internal rotation to neutral. He can abduct to only to 30° and adduct to 10°. His distal leg is neurovascular intact.

    An x-ray of the Tim's knee and hip shows that the knee prosthesis is well fixed and in good alignment. There are certainly osteoarthritic changes involving his hip joint.

    I had a details discussion with Tim with regards to both his knee as well as his hip. I have explained to him that the mild swelling to the knee and tightness will settle with time. As such he has had an excellent functional recovery from the knee replacement procedure with no pain and good range of motion. His hip pain is bothersome however he does believe it is bad enough for him to consider total hip replacement and instead he would like to continue to follow-up with myself for monitoring of his hip in case it needs an intervention in the future. I have advised him to try and lose some weight which would help him with his hip arthritic pain. He may also be a candidate for a hydrocortisone injection to the hip if his pain worsens acutely and this could be organised by yourself…”

    (Bolded for emphasis)

    [46] Exhibit TR1, T38, pages 193 and 194.

14. Upon reflection of Dr Dawra’s letter of 7 June 2022, the Tribunal is satisfied the applicant’s right knee condition had been suitably resolved with reference to Dr Dawra’s assessment that the surgery had resulted in, “excellent functional recovery from the knee replacement procedure with no pain and good range of motion”.  In turn, the Tribunal is of the view the applicant’s right knee condition ought to be considered fully treated and fully stabilised in accordance with the Determination prior to the Qualification Period for this application.

15. To the extent the Tribunal is able to distinguish the functional impairment arising from the applicant’s right knee condition from that caused by the applicant’s osteoarthritis of his right hip, the Tribunal refers to the Determination, which clearly states that where there are multiple conditions causing a common impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table. Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5) of the Determination, it is inappropriate to assign a separate impairment rating for each condition, as this would result in the same impairment being assessed more than once[47]. 

    [47] The Determination subsections 10(5) and (6).

16. In the present application, the Tribunal has already determined the applicant’s osteoarthritis of his right hip had not been fully treated or fully stabilised at the Qualification Period for this application, in circumstances where the applicant is still awaiting total right hip replacement surgery.

17. The Tribunal concurs with the respondent’s submission that the applicant’s osteoarthritis of his right hip significantly contributes to the applicant’s lower limb function, and in forming this view, the Tribunal places significant weight on Dr Dawra’s letter in their specialist assessment of 7 June 2022, transposed in the above reasons[48].

    [48] Exhibit R1, page 9, paragraph 4.41; Exhibit TR1, T38, pages 193 and 194.

18. Further, the Tribunal is of the view that to the extent the applicant’s osteoarthritis of his right hip contributes to the impairment of his lower limb function, it is not possible to assign an impairment rating caused by his right knee condition, as there is a lack of corroborative medical evidence which distinguishes the degree to which his osteoarthritis of his right hip and his right knee condition cause the impairment to his lower limb function[49]. It is for these reasons an Impairment Rating could not be assigned to the applicant’s right knee condition.

    [49] Refer Pignat and Secretary, Department of Social Services (Social services second review) [2017] AATA

    (d)  Osteoarthritis of the left knee

19. Medical imaging by way of x-ray was undertaken on the applicant’s spine and left knee on   26 July 2022, and found the applicant had moderate anterior compartment of osteoarthritis in his left knee with mild medial compartment disease, the Tribunal refers[50]:

    “… 2. Moderate anterior compartment OC at left knee with mild medial compartment disease…”

    [50] Exhibit TR1, T39, page 195.

20. On the basis of the above diagnosis confirmed by medical imaging, the Tribunal is satisfied the applicant’s osteoarthritis of his left knee had been fully diagnosed prior to the Qualification Period for this application.

21. With respect to assessing whether the applicant’s osteoarthritis of his left knee was considered fully treated and fully stabilised in accordance with the Determination, the Tribunal finds there is no further corroborative medical evidence in the exhibits before the Tribunal to support a such a finding. Therefore, an Impairment Rating could not be assigned.

    (e)  Depression

22. The applicant was diagnosed with depression and anxiety by his treating GP in medical certificates provided on 13 April 2011, 10 May 2011, 7 June 2011, and 26 May 2017[51]. It is noted the applicant was referred by his treating GP on 12 June 2019 for bulk billed sessions with a clinic[52].

    [51] Exhibit TR1, T7, page 87; T9, pages 96, T10 page97; T20, page 136.

    [52] Exhibit TR1, T29, page 175.

23. On 26 July 2019, a psychologist responded to the applicant’s GP, diagnosing the applicant with depression. The psychologist stated the applicant, “… scored in the extremely severe range for depression, extremely severe range for anxiety and in the severe range for stress. Some of his other presenting problems include: headaches, inactivity, regrets, irritable bowel, shyness, impulsivity, physical complaints, difficulty controlling eating, anger etc…”[53].

    [53] Exhibit TR1, T30, page 177.

24. The Tribunal notes the introduction to Table 5 – Mental Health Function within the Determination stipulates:

    “… 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 has not been made by a psychiatrist)…” 

25. In the absence of a diagnosis from a psychiatrist or clinical psychologist referable to the Qualification Period, any mental health condition of the applicant cannot be considered diagnosed. Therefore, the Tribunal was unable to assess the impairment or assign an Impairment Rating as part of this application.

    (f)  Hearing loss and tinnitus

26. In the corroborative medical evidence before the Tribunal is an auditory evaluation of the applicant’s hearing conducted on 12 May 2023[54]. Although the auditory evaluation post-dates the Qualification Period for this application, the Tribunal is of the view that given the nature of the condition, and the testing outcome of the applicant, the clinical findings of this report are reflective of the applicant’s impairment during the Qualification Period for his application for the DSP, and in turn the Tribunal accepts this corroborative medical evidence in support of the applicant’s claim for the DSP of 9 August 2022[55].

    [54]  Exhibit TR1, T50, page 234.

    [55]  With reference to Bobera and Secretary, Department of Families, Housing, Community Services and

27. The Tribunal refers to the audiometrist’s clinical findings with respect to the applicant’s hearing loss and tinnitus[56]:

    [56]   Exhibit TR1, T50, page 237.

    “… Impedance

    Both ears: Tympanometry results show normal middle ear canal volume and elevate compliance which is consistent with hypermobile Tympanic Membrane.

    Puretone Audiometry

    Left ear: Pure tone audiometry results show a mild to profound sensorineural hearing loss.

    Right Ear: Pure tone audiometry results show a moderate to moderately severe sensorineural hearing loss.

    Speech Discrimination

    Both ears: Speech audiometry results were better than predice by the audiogram and sows normal speech discrimination with appropriate amplification.

    Tinnitus Reaction Questionnaire

    The Tinnitus Reaction questionnaire scored an overall score of 68 which is consistent with significantly severe tinnitus.

    Recommendations

    In view of the reported bothersome tinnitus and the hearing test results it was recommended for Mr Lothian to trial hearing aids to assess the benefits to his communication and management of tinnitus. Mr Lothian is to return to us on the 1^st of June to trial bilateral hearing aids.

    Fitting

    On 13^th June 2023 Mr Lothian was fitted with two Unitron DX Insera custom hearing devices… With constant wearing of his hearing aids this should help stabilize his hearing thresholds and help with tinnitus management….”

28. On the basis of the audiometrist’s clinical findings, the Tribunal accepts the hearing loss and tinnitus of the applicant were fully diagnosed at the time of the Qualification Period for this application.

29. The Tribunal is of the view the applicant’s hearing loss and tinnitus were not considered fully treated or fully stabilised at the Qualification Period for his application, in circumstances where it was recommended the applicant be fitted with custom hearing devices, and this occurred well after the Qualification Period for this application (the Qualification Period for this application for the DSP ended on 8 November 2022, and the applicant was fitted with custom hearing devices on 13 June 2023)[57]. Therefore, the Tribunal was unable to assess the impairment or assign an Impairment Rating as part of this application.

    [57] Refer also Robinson and Secretary, Department of Social Services (Social services second review) [2024]

    AATA 240 (23 February 2024) [37] to [39].

    (g) Neck pain

30. Medical imaging by way of x-ray was undertaken on the applicant’s spine and left knee on 26 July 2022, and found the following with respect to the applicant’s spine[58]:

    “… 1. Extensive ossification of anterior longitudinal ligament in the cervical spine causes partial ankylosis throughout the neck and show slight progression since February 2015, now crossing the previously mobile C5-6 level. Abnormality is most likely due to DISH. I note that SI joints were essentially normal on pelvic x-ray of 18/5/2022…”

    [58] Exhibit TR1, T39, page 195.

31. Aside from the above medical imaging, the Tribunal was unable to find any further corroborative medical evidence in the exhibits before the Tribunal to assess whether the impairment was fully treated and fully stabilised in accordance with the Determination.  Therefore, the Tribunal was unable to assess the impairment or assign an Impairment Rating as part of this application.

    Summary

32. The Tribunal has found that none of the applicant’s impairments were able to be assigned an Impairment Rating pursuant to subsection 94(1)(b) of the Act.

33. As the Tribunal has found that the applicant does not satisfy subsection 94(1)(b) of the Act, there is no need to consider the remaining relevant provisions.

34. Although the Tribunal has found the applicant was not successful in his application for the DSP, the Tribunal notes that this decision does not prevent the applicant from making a new claim for the DSP.

    DECISION

35. Pursuant to subsection 43(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision of the Social Services and Child Support Division, dated 16 June 2023, to reject the applicant’s claim for the Disability Support Pension.

    I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B. Pola

    ………[SGD]………

    Associate

    Dated: 20 September 2024

    Dates of hearing:  17 April 2024 & 13 August 2024

    Applicant:  Mr Timothy Lothian (self-represented)

    Solicitor for Respondent:                  Mr Chris West (Sparke Helmore) (17 April 2024)

    Ms Madi Rush (Sparke Helmore) (13 August 2024)

    Annexure 1 – Exhibit Register

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
R1.	Respondent Statement of Facts, Issues and Contentions	R	21/03/2024
TR1.	Section 37 T-Documents (T1-T55, total 302 pages)	-	-	24/08/2023
TR2.	Supplementary Section 37 T-Documents (ST1-ST6, 17 pages total)	-	-	07/03/2024
A1.	Medical reports (total 3 pages)	A	-	06/09/2023
A2.	Surgery waiting list (2 pages)		05/09/2023	11/09/2023
A3.	Medical report of Dr S (5 pages)		02/11/2023	08/11/2023
A4.	Medical report of Dr S (5 pages)		06/02/2024	19/02/2024

   application, the earlier Determination was in force during the Qualification Period for this application.

    Bowen CJ and Deane J).

    Determination 2011 (Cth), subsection 6(1).

   AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace Relations [2007] FCA  

   404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA 133; [2014] AATA 447 at
[31].

    Qualification Period for this application.

    2745 at [20] to [22].

     Indigenous Affairs [2012] AATA 922 at [34]; Harris and Secretary, Department of Employment and Workplace  
     Relations [2007] FCA 404 at [1]; Fanning and Secretary, Department of Social Services (2014) 144 ALDA
133; [2014] AATA 447 at [31].