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

[2017] AATA 1136

Lyddieth and Secretary, Department of Social Services (Social services second review) [2017] AATA 1136 (24 July 2017)

Division:GENERAL DIVISION

File Number(s):      2015/6691

Re:Terri Lyddieth

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Dr I Alexander, Member

Date:24 July 2017

Place:Sydney

The decision under review is affirmed.

....................................[sgd].......................................

Dr I Alexander, Member

CATCHWORDS

SOCIAL SECURITY – disability support pension – physical, intellectual or psychiatric impairment – whether impairments amount to 20 points or more – whether impairments are fully diagnosed, treated and stabilised – continuing inability to work – chronic fatigue syndrome – depression – spinal disorder – decision affirmed.

LEGISLATION

Social Security Act 1994 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 63(2), 80, 118(13)

CASES

Secretary, Department of Social Services v Prior [1994] AATA 76

SECONDARY MATERIALS

The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

REASONS FOR DECISION

Dr I Alexander, Member

24 July 2017

1. Ms Lyddieth, who is now 32 years old, was granted disability support pension (DSP) on 29 April 2009 on the basis that she suffered from chronic fatigue syndrome (CFS), depression and a spinal disorder.  She was assessed under the Impairment Tables in Schedule 1B of the Social Security Act 1991 (the Act) which were in place at that time and assigned 15 points for CFS, 10 points for depression and 10 points for the spinal disorder.

2. Ms Lyddieth’s qualification for DSP was reassessed in March 2015 and, on the basis of recommendations of a Job Capacity Assessor (JCA), her DSP was cancelled on 20 July 2015, with payment cancellation to take effect on 31 August 2015. On internal review, the decision was affirmed on 31 July 2015.

3. In a decision dated 18 November 2015, the Social Services & Child Support Division of the Administrative Appeals Tribunal (AAT1) affirmed the decision to cancel Ms Lyddieth’s DSP. AAT1 found that Ms Lyddieth’s medical conditions warranted a total rating of 15 points under the current Impairment Tables and, therefore, she did not satisfy section 94(1)(b) of the Act.

4. In this proceeding, Ms Lyddieth seeks review of the AAT1 decision.

5. Ms Lyddieth attended the hearing by telephone and was self-represented. She was supported with telephone evidence by Dr Galea, who has been her general practitioner (GP) since 2005.

   ISSUES

6. Section 63(2) of the Social Security (Administration) Act1999 (Administration Act) allows the Secretary to require a person to undergo a medical assessment if that person is in receipt of a social security payment, including DSP.

7. Section 80 of the Administration Act provides that the Secretary is to determine that a social security payment be cancelled or suspended if it is paid to a person who is not or was not qualified for this payment.

8. The Secretary (and the Tribunal) may exercise the powers to cancel or suspend under section 80 on the basis of information that comes to the Secretary’s notice. There is no need for notification to be issued to the person.[1]

   [1] Secretary, Department of Social Services v Prior [1994] AATA 76

9. In this case, the information arose as the result of a Medical Review report dated 2 April 2015 provided by Dr Galea and a subsequent JCA report submitted on 3 July 2015.

10. The decision to cancel Ms Lyddieth’s DSP is an adverse determination within the meaning of section 118(13) of the Administration Act, which provides that such an adverse decision takes effect on the day on which it is made, that is, the date of cancellation.

11. Also, consideration of whether to cancel DSP is limited to a consideration of the circumstances existing at the time the cancellation was made, and at no other time.[2]

    [2] Shi v Migration Agents Registration Authority [2008] 31 at [144]

12. Therefore, the threshold issue in this matter is whether on 20 July 2015, the date of cancellation, Ms Lyddieth qualified for DSP.

13. Section 94(1) of the Act provides that a person is qualified for DSP if:

    ·the person has a physical, intellectual or psychiatric impairment (94(1)(a)); and

    ·the person’s impairment is of 20 points or more under the Impairment Tables (94(1)(b)); and

    ·the person has a continuing inability to work as defined by the Act (94(1)(c)(i)).

14. The Respondent concedes, and the Tribunal accepts, that Ms Lyddieth suffers medical conditions that may cause impairment and, therefore, satisfied section 94(1)(a) of the Act at the date of cancellation.

15. Section 27(3) Act provides that if a person is receiving DSP and the Secretary gives the person a notice under section 63(2) of the Administration Act in relation to assessing the person’s qualification for that pension, the Secretary, in assessing the person’s qualification for pension must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.

16. In this matter the relevant instrument is The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination) which requires that an impairment rating can only be assigned to an impairment if the condition causing that impairment is “permanent” (paragraph 6(3)(a)).

17. For the purposes of paragraph 6(3)(a), a condition is permanent if it is:

    ·fully diagnosed by an appropriately qualified medical practitioner (paragraph 6(4)(a)); and

    ·fully treated (paragraph 6(4)(b)); and

    ·fully stabilised (paragraph 6(4)(c)); and

    ·the condition is more likely than not, in light of available evidence, to persist for more than 2 years (paragraph 6(4)(d)).

18. The Introduction to each relevant Table of the Impairment Determination requires that the “self-report of symptoms alone is insufficient” and “there must be corroborating evidence of the person’s impairment.”

19. Also, the Introduction to Table 5 of the Impairment Determination, which is to be used “where a person has a permanent condition resulting in functional impairment due to a mental health condition”, states that 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).”

20. Ms Lyddieth contends that, at the date of cancellation, she suffered significant impairment because of several medical conditions which include CFS, depression, neck pain with radiculopathy, asthma, allergies, sleep apnoea, hepatitis, herpes virus infection, migraine, dental pain, obesity and gastroesophageal reflux.

21. The respondent contends that, at the date of cancellation, Ms Lyddieth’s medical conditions warranted a rating of nil points under the Impairment Tables and, therefore, she did not satisfy section 94(1)(b) of the Act.

22. It follows, that the definitive issue in this matter is whether, at the date of cancellation, Ms Lyddieth suffered an impairment of 20 points or more under the Impairment Tables and, if so, whether she had “a continuing inability to work”.

    MEDICAL EVIDENCE

    Dr Galea – General Practitioner

23. In a Centrelink Medical Report dated 5 May 2009, Dr Galea listed “discogenic back pain” as the medical condition with most functional impact. He indicated that the date of onset was unknown, the diagnosis was confirmed and no further investigation was planned.  He noted clinical features as “LBP, radiation to legs, cannot bend, twist lift” and current treatment as “analgesics, NSAID, physio” but provided no other relevant details.  No real assessment of functional impact was provided.

24. Dr Galea listed “CFS” as a medical condition which had a significant impact on ability to function. He indicated that the date of onset was unknown, the diagnosis was confirmed and no further investigation was planned.   He noted clinical features as “fatigue, tired, no energy, poor sleep, depressed, M & J pain, stiffness” and current treatment as “physical therapies” but provided no other relevant details. No real assessment of functional impairment was provided.

25. At the hearing, Dr Galea was unable to provide a satisfactory explanation for the basis of his diagnosis. He said that he did several blood tests but did not consider specialist consultation and had not applied established CFS diagnostic criteria.

26. In the report, Dr Galea also listed asthma, depression, GORD and migraine as medical conditions that are generally well managed and that cause minimal or limited impact but noted impact on ability to function as “unable to do any work”.

27. At the hearing, Dr Galea declined to provide a satisfactory explanation why these conditions caused an inability “to do any work”.

28. In a Centrelink Medical Report dated 1 June 2009, Dr Galea listed “hepatitis C liver dysfunction” as the medical condition with most functional impact. He noted clinical features as “RUQ pain, tired, fatigue” and current as supportive but provided no other relevant details. No real assessment of functional impact was provided.

29. Dr Galea also listed “Anxiety/ Panic Disorder” as a medical condition with significant functional impact. He indicated that the date of onset was unknown, the diagnosis was confirmed and no further investigation and noted clinical features as “2yr history of anxiety, panic fatigue” and treatment is as “psychotherapy” but provided no other relevant details.

30. In a brief letter dated 8 November 2013, Dr Galea states that Ms Lyddieth is being treated for “depression, severe asthma, neck & discogenic & BP”, is being stabilised on Norspan for pain management and will be seeing a “psychotherapist”.

31. In a Medical Review report dated 2 April 2015, Dr Galea noted “neck pain with Radiculopathy” as the medical condition with most functional impact and noted current treatment as analgesic and antidepressant medication but provided no real assessment of functional impact.

32. Dr Galea also listed “asthma and multiple allergies” as medical conditions which have significant functional impact and indicated that the diagnosis had been supported by a Respiratory physician.  He listed various medications but provided no real assessment of functional impact.

33. Dr Galea also listed “depression obesity and sleep apnoea” as medical conditions that are generally well managed and that cause minimal or limited impact on ability to function but provided no other details. He made no mention of CFS.

34. In a medical certificate dated 12 May 2015, Dr Galea listed “depression” as a medical condition which impacted on Ms Lyddieth’s capacity for work. He does not mention any other conditions. 

35. In a letter dated 19 November 2015, Dr Galea stated the following:

    I HAVE TREATED THE ABOVE FOR DEPRESSION, ASTHMA, GORD, NECK PAIN, LOWER BACK PAIN, CHRONIC FATIGUE SYNDROME – THIS CFS CAUSES FATIGUE TIREDNESS UNABLE TO DO DAY TO DAY WORKUNABLE TO WALK OVER 150M TO 200M MULTIPLE MUSCLE PAIN ETC ETC…SHE WAS NOT REFRRED TO A PSYCHIATRIST OR PSYCHOLGIST AS I DID ALL THE PSYCHIATRIC TREATMENTS NECESSARY SHE WAS C/O DEPRESSION FATIGUE POOR SLEEP EMW ANXIETY ATTACKS POOR CONCENTRATION…

    …SHE WAS SEEN BY DR REYENKE A NEUROLGIST WHO REFRRED HER TO THE PAIN CLINICAT RNSH AND THE THREE WEEKS PROGRAMWAS TO EXPENSIVE FOR HER TO PAY WHEN I INQUIRED THE COST WAS $11-12000 PAIN UP FRONT – THEREFORE I DID THE FOLLOW UP FOR HER PAIN AND DID NOT REFER TO ANY PAIN CLINIC ALSO I DO NOT USE DR RUSSO’S PAIN CLINIC SHE C/O DECREASED RANGE OF MOVEMENTS IN HER NECK & LOWER BACK ….

36. At this point I note that, at the hearing, Ms Lyddieth confirmed that in the past she has had some counselling for her mental health symptoms but has not, in fact, been seen by a psychiatrist or clinical psychologist and has not had any formal psychotherapy. She said she has had intermittent treatment with antidepressant medication but did not like taking the medication and has recently stopped.

37. Ms Lyddieth stated that since 2009, she has not been seen by a respiratory physician because she could not afford to pay for a consultation. Her treatment has been primarily supervised by Dr Galea and intermittent admissions to Gosford Hospital Emergency department. Her usual treatment consists of Symbicort Turbuhaler twice daily and Ventolin inhaler 6-8 times per day without the aid of a spacer. When admitted to hospital, she is treated with nebulised Ventolin and usually started on a short course of prednisone.

38. Ms Lyddieth said she was allergic to common allergens such as pollen and grass. Dr Galea was unable provide any additional details.

39. In a medical certificate dated 12 April 2016, Dr Galea listed “DEPRESSION, CH FATIGUE SYNDROME, CERVICAL NEUROPATHY, DISCOGENIC LOWER BACK PAIN” as medical conditions which impact on Ms Lyddieth’s capacity for work.

40. In a letter dated 19 January 2017, Dr Galea stated, inter alia, the following:

    She was first seen in 02/03/05 at this clinic …..and on 12/04/05….she was wheezing…started her on Ventolin spray and Seretide inhaler….a diagnosis of Asthma was made….she was also seen by Dr Hayes – a respiratory consultant but failed to continue follow up and further reviews – due to financial cost factors and failed to stop smoking…..her asthma has been fully treated and stabilized provided she takes her medication on a regular basis…..I made the diagnosis of depression and I do not require an opinion from a psychiatrist or psychologist…. her obesity remains a problem with a BMI of >39, she has had numerous help and programs to lose weight …her obesity has been treated but clearly more time and effort is required in the future…..sleep apnoea is still a progressive issue she has referral to Dr Soni at S.D.H……..L.FT’s 2010–2013 have all been normal and I feel is no longer an issue…..There is no specific treatment for CFS other than supportive as the majority of patients recover within 2-3 years……I do not see her urinary tract disease as a major problem…….her neck and LBP will remain to some degree for the rest of her life…..her main stay in pain management which I am more than able to do myself being fully aware of the addictive nature of some of the current medication on the market. [sic]

    Dr Reyneke – Neurologist

41. In a letter dated 12 September 2012, Dr Reyneke noted that active problems are pain in the cervical region and both forearms and asthma. She stated, inter alia, the following:

    Thank you for asking me to Terri, 28 years old, regarding pain that developed in the posterior aspect of her cervical spine about 7-8 month ago. She reports that she has been working long hours on her lap top and became aware of a painful feeling at the back of her neck as well as intermittent pain along the ulnar aspect of both her forearms. She has stopped spending hours in front of the computer but the pain has persisted….there have been no symptoms affecting her lower limbs….she has tried physiotherapy, chiropractic massage and steroid injections without any relief. She was initially treated with Panadeine Forte and this was later changed to Tramadol of which she currently probably takes about 300 mg a day…On examination:…movements of the cervical spine appear to be full….there were no signs of wasting or fasciculations. Biceps, triceps and supinator reflexes were preserved as were knee and ankle jerks……she had normal distal and proximal strength in her limbs. I could not demonstrate any sensory level on her trunk…MRI scan would be helpful to rule out causes for painful radiculopathy …I have also arranged nerve conduction studies...I suspect that a number of her symptoms relate to the relatively high dose of Tramadol that she is taking and wonder whether she might have developed a situation similar to opiate induced hyperalgesia. I have asked to try and gradually reduce her dose of Tramadol to a maximum of 200 mg per day over the next few weeks while introducing Nortriptyline 10 mg nocte…

42. In a letter dated 24 September 2012, Dr Reyneke stated, inter alia, the following:

    Terri returned for review…….pain in the spine radiating into both of her arms still remains bothersome. She has found the Nortriptyline helpful in terms of assisting with sleep at night but still requires Tramadol twice daily. She has had an MRI scan of her cervical spine which does not show any signs of neural compromise, syrinx or demyelination. Her nerve conduction studies are normal as well…I suspect the pain is musculoskeletal ……would recommend formal rheumatology review…..suggested that she could try Norflex to see whether this could help the painful muscle spasms and enable her to further reduce the Tramadol dose.

43. I note at this point that Ms Lyddieth told the Tribunal that, currently, she takes up to 400 mg of “quick release” Tramadol per day and occasionally an additional 200mg of “slow release” Tramadol.

    Dr Preston – Rheumatologist

44. In a letter dated 14 November 2012, Dr Preston stated, inter alia, the following:

    Thank you for referring Ms Lyddieth aged 28 years who reports onset of neck while using a laptop towards the end of last year. Treatment has included Tramadol up to 400 mgs a day and 6 Panadol Osteo daily. She has tried Panadeine Forte and Norflex but developed adverse effects from the latter. Anti-inflammatories have been avoided because of asthma. She had a corticosteroid injection to her neck but is unsure as to whether it has been helpful. Other treatment has included acupuncture, physiotherapy and chiropractic treatment.

    Ms Lyddieth reports low cervical and upper thoracic back pain which is constant. She has little arm pain and no arm paraesthesia. For the past three months, she has had some low back pain which has been worse in the mornings. Symptoms disturb her sleep….reports morning stiffness lasting about 90 minutes. She has no joint pain or joint swelling…..her weight has generally stable

    …She has, however, lost 5 kgs in weight which she attributes to medications…She has been on disability pension for two years on the basis of asthma and depression. She has declined to take anti-depressant medication in the past…There is a history of allergies to dust and pollen …….she has diffuse tenderness in the thoracic spine and was quite tender over the cervical spine musculature...There is no marked restriction in cervical spine movements and upper limb neurological examination was normal …..Available imaging includes a bone scan which notes no cause for her cervical symptoms ……MRI of the cervical spine is a  normal study….the source of her symptoms is not entirely clear but the negative imaging and findings would suggest a muscular component. I have suggested she try Lyrica at a dose of 75 mgs a day and have asked her to reduce her Tramadol to 300mgs a day at maximum...A pain clinic referral will also be organised…

45. In a letter dated 16 January 2013, Dr Preston stated inter alia the following:

    I reviewed Terri Lyddieth who found Lyrica initially very helpful for her neck symptoms. Unfortunately she developed adverse effects including insomnia.…I have suggested she gradually withdraw it and introduce Neurontin…Ms Lyddieth is taking Tramadol at a dose of 100 mg twice daily and is also on Panadol Osteo…Ms Lyddieth has been contacted by the pain clinic at North Shore and has been encouraged to go ahead with completed questionnaires so that an appointment can be made for her.

46. Ms Lyddieth told the Tribunal that she did not attend the pain clinic because she could not afford to.

    Health Professional Advisory Unit 

47. In a report dated 25 May 2016, Dr Turner provided an independent review of the available documentary evidence in this matter. Dr Turner is a general practitioner of 25 years standing with additional training in sports medicine and pain management. He noted in the report that he was unable to contact Dr Galea despite multiple efforts.

48. Dr Turner stated, inter alia, the following:

    Chronic fatigue syndrome is a complicated disorder characterized by extreme fatigue that can’t be explained by any underlying medical condition. It is a ‘diagnosis of exclusion’. The fatigue may worsen with physical or mental activity, but doesn’t improve with rest. There’s no single test to confirm a diagnosis of chronic fatigue syndrome. Because the symptoms of chronic fatigue syndrome can mimic so many other health problems, the treating doctor must rule out a number of other illnesses before diagnosing chronic fatigue syndrome. These may include: Sleep disorders...such as sleep apnea…Medical Conditions...such as anaemia, diabetes and hypothyroidism; Mental health issues…such as depression, anxiety [Emphasis added]

    Specialist neurologist and rheumatologist opinion is that the pain Miss Lyddieth is experiencing is musculoskeletal, and both recommend referral to a multidisciplinary pain clinic…It is my medical opinion that Miss Lyddieth has a chronic pain syndrome, and needs to be assessed and treated in the evidence- based ‘biopsychosocial’ model of pain management and if she were to attend a specialised pain clinic it is reasonable to expect a reduction in the impact of her pain, an increase in her ability to function, and an overall improvement in her quality of life. The author has confirmed that there is a public pain clinic at the Royal North Shore Hospital, approximately 90 minutes drive from Bateau Bay, that accepts referrals from Miss Lyddieth’s region and that the wait for an appointment is typically 3-6 months.

    OTHER EVIDENCE

1. In a letter dated 15 November 2013, Mr Clarke, chiropractor, stated that “Terri has been attending the practice since May 2012 suffering from ongoing lower cervical and upper thoracic pain”.

2. I note that there is no mention of low back pain.

3. In a JCA report submitted on the 3 July 2015, the assessor noted, inter alia the following:

   Miss Lyddieth stated that she had not attended the pain clinic as it was too far to travel…

   ...Miss Lyddieth was unsure if she had ever seen a psychiatrist or a Clinical Psychologist. She stated that she does not like to talk about her problems. She reported current symptoms as depression, social withdrawal, does not want to leave the house and cannot think…

   Miss Lyddieth stated that she gets breathless after 10 minutes of walking…..has been on and off prednisone for the last 4 years. She reported becoming breathless with activity and stated that she is using her Ventolin inhaler 10 times per day

4. In the decision of AAT1, the Member stated, inter alia, the following:

   Ms Lyddieth told the tribunal she had the chronic fatigue for years with symptoms prior to 2009. Her sleep patterns are poor and physically she is limited…Dr Galea has managed her the whole way on this “journey”, she has never seen a specialist…she has seen two specialists in respect of her neck pain. She takes a lot of tablets. She was referred for pain management at North Shore Hospital – but she couldn’t afford it because it would cost over $1000. Ms Lyddieth stated there was no public pain management available. She was prescribed Lyrica, which did help her pain, but she experienced side-effects…the pain goes into her right arm and forearm…

5. She told AAT1 that her asthma was ‘‘terrible’’ and that “she is scared to go places because of fears of having an asthma attack”.

   CONSIDERATION

6. Ms Lyddieth contends that, at the date of cancellation of DSP, she suffered significant impairment because of her medical conditions and that the DSP should not have been cancelled.

7. Ms Lyddieth relies on the documentary and oral evidence provided by Dr Galea who has been her treating GP since 2005.

8. The difficulty for Ms Lyddieth is that Dr Galea’s evidence, in my view, is somewhat problematic. The documentary evidence can best be described as incomplete and inconsistent. His oral evidence, I found, to be defensive and generally unhelpful.

9. After considering all the available evidence, I am satisfied that, for present purposes, the relevant medical conditions to be considered are CFS, depression, chronic pain, asthma, sleep apnoea and obesity.

10. Dr Galea diagnosed CFS in 2009. He has provided no rationale for the diagnosis, did not apply established diagnostic criteria, did not seek specialist opinion and on the available evidence, did not adequately consider alternative diagnoses to explain Ms Lyddieth’s ‘chronic fatigue’. In fact, he subsequently also diagnosed anxiety, depression and sleep apnoea, conditions which are frequently associated with “fatigue”.

11. I note also that Dr Galea has completed some medical reports and certificates where he has omitted CFS from the list of diagnoses.

12. Furthermore, Ms Lyddieth has been seen by a rheumatologist on two occasions and a neurologist on two occasions. The letters provided by the two specialists make no reference to a diagnosis of CFS.

13. On balance, I am satisfied that the diagnosis of CFS is not reliable and, therefore a rating under the Impairment Tables cannot be applied.

14. The diagnosis of ‘depression’ has not been confirmed by a psychiatrist or clinical psychologist and, therefore, in accordance with the requirements of Table 5, a rating under the Impairment Tables cannot be applied.

15. The diagnosis of “chronic pain” is, in my view, problematic.  I accept that Ms Lyddieth suffers chronic pain, however, the cause of the persistence and claimed severity of her symptoms remains unexplained.

16. Dr Galea makes several diagnoses with reference to pain “LBP radiating to the legs, neck & discogenic BP, neck pain with radiculopathy, discogenic low back pain, cervical neuropathy” but provides no reliable evidence to support these diagnoses.

17. Specialist neurologist and rheumatologist opinion is that Ms Lyddieth’s neck and upper back pain is musculoskeletal. MRI scan, nerve conduction studies and bone scan are all normal with no evidence of structural upper spine pathology. Also, there is no imaging evidence with respect to the lumbar spine.

18. Furthermore, there is some inconsistency in Ms Lyddieth’s self-report of symptoms. Dr Reyneke notes “intermittent pain along the ulnar aspect of both forearms…and her  forearms experienced throbbing cramping type of feeling…There have been no symptoms affecting her lower limbs”.

19. Dr Preston notes “low cervical and upper thoracic back pain which is constant. She has little arm pain and no arm paraesthesia…for the past three months she has had some low back pain…”

20. Both specialists raised concerns about the high daily dose of Tramadol being taken by Ms Lyddieth and recommended dose reduction and pain clinic assessment.

21. Attempts at dose reduction appear to have been unsuccessful as Ms Lyddieth told the Tribunal she currently still takes up to 400mg of Tramadol per day with intermittent additional 200mg of slow release Tramadol.

22. At the hearing, Dr Galea was asked whether he was concerned about the amount of Tramadol Ms Lyddieth continued to take. He dismissed any concerns and added that he prescribed Tramadol because it was the least addictive of the opiate-like medications.

23. Ms Lyddieth told AAT1 that there is “no public pain management available”. However, Dr Turner confirmed that there is a “public pain clinic” at Royal North Shore Hospital that accepts referrals from her region.

24. Although the cause of Ms Lyddieth’s “chronic pain” has not been established, for present purposes, I accept that at the date of cancellation, the condition can be considered as fully diagnosed. However, on the available evidence, I am not persuaded that, at the date of cancellation, the condition was fully treated and fully stabilised, therefore, a rating under the Impairment Tables cannot be applied.

25. Ms Lyddieth has suffered from “asthma” for many years and, at the date of cancellation, the condition was clearly fully diagnosed. Her treatment has remained relatively unchanged over time and, in my view, the available evidence tends to suggest that her condition is poorly controlled, with the current treatment, and that specialist review would be beneficial. However, for present purposes, I accept that, at the date of cancellation, the condition of asthma can be considered as permanent for the purposes of the Impairment Determination.

26. However, I am not satisfied that there is sufficient corroborating evidence to allow for a reliable assessment of the functional impact of this condition at that date, therefore, a rating under the Impairment Tables cannot be applied.

27. Notwithstanding the limited available evidence, I accept that, at the date of cancellation, the condition of “obesity” was permanent for the purposes of the Impairment Determination. However, I am not satisfied that there is sufficient corroborating evidence to allow for a reliable assessment of the functional impact of this condition at that date, therefore, a rating under the Impairment Tables cannot be applied.

28. The condition of “sleep apnoea” was not fully diagnosed at the date of cancellation, therefore, a rating under the Impairment Tables cannot be applied.

    DECISION

29. For reasons set out above, the Tribunal is satisfied that, at the date of cancellation, Ms Lyddieth’s impairment was not 20 points or more under the Impairment Tables, therefore, she did not satisfy section 94(1)(b) of the Act and the decision to cancel DSP was correct.

30. The decision under review is affirmed.

I certify that the preceding 78 (seventy -eight) paragraphs are a true copy of the reasons for the decision herein of Dr I Alexander, Member

...................................[sgd]....................................

Associate

Dated: 24 July 2017

Date of hearing:	22 June 2016
Applicant:	In person
Solicitors for the Respondent:	Ms S Wavamunno, Department of Human Services