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

Lynch and Secretary, Department of Social Services (Social services second review) [2019] AATA 331 (6 March 2019)
Division:GENERAL DIVISION
File Number: 2018/3365
Re:Anthony Lynch
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:6 March 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..........................[Sgd].........................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – 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
Social Security Act 1991(Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
6 March 2019
INTRODUCTION

On 21 June 2017, Mr Anthony Lynch (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 20, pages 128-157, DSP Claim form.
The claim was rejected on 13 October 2017,[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 16 March 2018.[3]
[2] Exhibit 1, T Documents, T 27, pages, 167-168, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 30, pages 172-178, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

4 June 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 6-9, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 19 June 2018.[5]
[5] Exhibit 1, T Documents, T 1, page 1-5, Application for Review.
On 30 January 2019, a Hearing was held for this application. At the Hearing, the Applicant was represented by his partner, Ms Janeen Malcolm. The Applicant chose not to give evidence at the Hearing.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
The Applicant was previously paid DSP from 11 October 2004,[6] until his qualification was reviewed and his DSP was cancelled on 20 September 2016.[7] The Applicant’s DSP was cancelled on the basis that his conditions did not attract 20 points under the Impairment Tables. His spine condition only attracted 5 points under Table 4 of the Impairment Tables.[8] The decision to cancel the Applicant’s DSP was reviewed by an ARO[9] and by the SSCSD.[10] Consequently, the decision to cancel the Applicant’s DSP was affirmed and the Respondent cancelled his DSP with effect from 19 June 2017.[11]
[6] Exhibit 1, T Documents, T 36, page 188, Pension Status History screen.
[7] Exhibit 1, T Documents, T 19, page 123, paragraph 4, SSCSD Decision dated 6 June 2017.
[8] Exhibit 1, T Documents, T 14, page 111, JCA Report dated 6 September 2016, it is noted that the ARO in affirming the DSP cancellation decision concluded 10 points was appropriate for the Applicant’s Spinal Condition; Exhibit 1, T Documents, T30, page 174, ARO Decision and Notes.
[9] Exhibit 1, T Documents, T 30, page 174, ARO Decision and Notes.
[10] Exhibit 1, T Documents, T 19, page 122-127, SSCSD Decision dated 6 June 2017.
[11] Exhibit 1, T Documents, T 36, page 188, Pension Status History screen.
On 21 June 2017, the Applicant lodged a new claim for DSP and on the claim for DSP form[12] he lists the following disabilities, illnesses or injuries:[13]
-Back problems can’t sit for more than 10 minutes
-Ulcerated food pipe
-Migraines
-Testosterone problem
-Really High Red Blood cells
[12] Exhibit 1, T Documents, T 20, pages 128-157, DSP claim form.
[13] Exhibit 1, T Documents, T 20, page 153, DSP Claim Form.
An Assessment Services Recommendation for DSP medical eligibility was completed by a Rehabilitation Counsellor on 23 June 2017.[14] The assessor recommended that the Applicant’s claim for DSP be rejected on the basis that there was no further medical evidence that would support adjustment to the Job Capacity Assessment (JCA) report dated 6 September 2016.[15]
[14] Exhibit 1, T Documents, T 22, page 159-160, Assessment Service Recommendation for DSP Medical Eligibility.
[15] Exhibit 1, T Documents, T 22, page 159, Assessment Service Recommendation for DSP Medical Eligibility.
A further Assessment Services Recommendation for DSP medical eligibility was completed by an Exercise Physiologist on 22 July 2017. The assessor agreed with the recommendation made on 23 June 2017 that a valid JCA Report was in place.[16]
[16] Exhibit 1, T Documents, T 24, pages 162-163, Assessment Service Recommendation for DSP Medical Eligibility.
A decision was made to reject the Applicant’s DSP application on 13 October 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[17]
[17] Exhibit 1, T Documents, T 27, page 167, Centrelink Notice: Rejection of DSP claim.
On 25 October 2017, the Applicant sought review of the decision.[18]
[18] Exhibit 1, T Documents, T 37, page 215, Relevant Customer Contact Notes for the Period 20 June 2018 to 16 March 2018.
A DSP Medical Assessment Recommendation was completed by a Rehabilitation Counsellor on 12 March 2018. The assessor made the same overall conclusion as the two previous Medical Assessments.[19]
[19] Exhibit 1, T Documents, T 29, pages 170-171, Assessment Service Recommendation for DSP Medical Eligibility.
On 16 March 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO found that the Applicant’s spine condition should be assigned 10 points under the Impairment Tables. The ARO made the following key findings:[20]
• You have the following permanent conditions: chronic low back pain secondary to spondylosis & disc disease.
• Your conditions of hypogonadism, migraine and Barrett’s Oesophagus are not accepted as being permanent as they have not been fully treated and stabilised.
• Your total impairment rating is 10.
• You do not have an impairment rating of 20 points or more.
[20] Exhibit 1, T Documents, T 30, page 172-178, Authorised Review Officer Decision and Notes.
On 16 March 2018, the Applicant sought review of the DSP refusal decision by the SSCSD. On the 4 June 2018, the SSCSD affirmed the decision under review.[21]
[21] Exhibit 1, T Documents, T 2, pages 6- 9, Decision of the Social Services & Child Support Division.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.Does the applicant have a physical, intellectual or psychiatric impairment;[22]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[23] and
3.Does the Applicant have a continuing inability to work?[24]
[22] Section 94(1)(a) of the Act.
[23] Section 94(1)(b) of the Act.
[24] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[25] The Impairment Tables 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.[26] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[27]
[25] Section 6(1) of the Determination.
[26] Section 6(2) of the Determination.
[27] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[28]
[28] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[29]
(a) have been fully diagnosed by an appropriately qualified medical practitioner; and
(b) have been fully treated; and
(c) have been fully stabilised; and
(d)more likely than not, in light of available evidence, to persist for more than 2 years.
[29] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and, whether treatment is continuing or planned in the next two years.[30]
[30] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[31]
(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.
[31] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability 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.[32]
[32] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[33] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[34] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[35]
[33] Section 10 of the Determination.
[34] Sections 10(3) and (4) of the Determination.
[35] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; 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.[36]
[36] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a) if they do not have a severe impairment, have actively participated in a program of support; and
(b) be unable to work for at least 15 hours per week independently of a program of support; and
(c) be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be 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.[37]
[37] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[38]
[38] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that are provided outside this Relevant Period may be considered, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[39]
[39] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
Relevant Period
The Relevant Period in this matter commences on 21 June 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 21 September 2017. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
Issues
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention[40] and the Respondent considers the Applicant’s impairments include chronic back pain,[41] Barrett’s oesophagus[42], hypergonadism[43] and migraines.[44]
[40] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 4, paragraph 33.
[41] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 44-50.
[42] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 51-57.
[43] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 58-64.
[44] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 65-71.
The remaining issues for the Tribunal to consider is:
1.Whether, within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2.If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
I will consider each of the Applicant’s impairments in turn.
Spine condition
The medical evidence before the Tribunal indicates that the Applicant has suffered from a spine condition since 2002. In a Medial Report – Disability Support Pension Review form dated 28 July 2016, Dr Catherine Leviste-Apostol diagnosed the Applicant as having chronic lower back pain secondary to spondylosis and disc disease. This diagnosis was supported by Dr Neil Robinson, Orthopaedic Surgeon.[45] The report noted that the chronic pain has been investigated for years and symptoms were back pain with neuropathic pain radiating to the groin, thigh and legs and the functional effects were being unable to mobilise, that is walk, bend, sit, stand or lift for long periods due to increasing pain. Dr Leviste-Apostol opined that the condition was likely to impact on the Applicant’s ability to function for more than 24 months and that he needs further review by specialist.[46]
[45] Exhibit 1, T-Documents, T 12, page 92, Medical Report - DSP form by Dr Katherine Leviste-Apostol, Family Practice at Hinkler.
[46] Exhibit 1, T-Documents, T 12, pages 92-99, Medical Report - DSP form by Dr Katherine Leviste-Apostol, Family Practice at Hinkler.
In a Job Capacity Assessment (JCA) Report dated 6 September 2016 the assessor found that the Applicant’s spine condition was verified by medical evidence, fully diagnosed, fully treated and fully stabilised.[47] The JCA provided that:
this condition is considered fully diagnosed given the evidence verifying the condition is from a suitably qualified medical practitioner; fully treated and stabilised. The client is on the waiting list with the public health system and as such, it is likely to take in excess of 24 months before the client is seen, treated and rehabilitated.[48]
[47] Exhibit 1, T-Documents, T 14, page 105, Job Capacity Assessment Report.
[48] Exhibit 1, T-Documents, T 14, pages 105-106, Job Capacity Assessment Report.
The JCA Report provided that the:
Client reports chronic low back pain with sciatic pain in both legs and pins & needles in the right leg. Physical limitations include; stand 15 min. Sit 45 minutes in a car. Bend to knees with difficulty. Lift/carry light weights. Leans on shopping trolley and requires rest periods when shopping. Able to twist at waist with pain. Able to reach above head and remove objects from a shelf. Client is independent with self care. Attends to light yard work and “tinkering around” with a car that he is working on.[49]
[49] Exhibit 1, T-Documents, T 14, page 105, Job Capacity Assessment Report.
The JCA assessor assigned the Applicant 5 points under Table 4 of the Impairment Tables.[50]
[50] Exhibit 1, T-Documents, T 14, page 107, Job Capacity Assessment Report.
On 6 October 2016, Dr Leviste-Apostol referred the Applicant to the Royal Brisbane Women’s Hospital for specialist review. The referral provided:
He complains of low back pain getting worse radiating down to his legs. His CT showed L4 in contact with an osteophyte complex but he reports pain on a different dermatome, mostly sacral. He has been on tramadol for years as he can’t tolerate any other medications. This referral was sent to Bundaberg Hospital but was not accepted due to lack of spine specialist. Your expertise in this field is highly appreciated.[51]
[51] Exhibit 1, T-Documents, T 16, page 117, Outpatient Referral Form by Dr Katherine Leviste-Apostol.

In a Centrelink Medical Certificate dated 23 June 2017, Dr Rashed Aziz provided that the symptoms of the Applicant’s back pain was ‘Restricted bending twisting lifting or pushing’.[52]
[52] Exhibit 1, T-Documents, T 21, page 158, Medical Certificate by Dr Rashed Aziz, Eastside Medical Centre.
The SSCSD recorded that at the Hearing conducted on 6 June 2017:
Miss Malcolm told the tribunal that Mr Lynch could not sit for more than 10 minutes without his back hurting. His back is only getting worse. He can drive in a car for about 50km, about half an hour. Last week he was doing stuff around the yard and then was in bed for three days.
Mr Lynch told the tribunal his only treatment is medication. He usually wakes with pain in the morning and takes five minutes to get going. He can walk about 100 m before he get spasms in the back. He can sit for five to 10 minutes, and then needs to get up and walk around. He could not bend to the floor to pick up a light object, but could bend to knee height with some difficulty. Most of the day he tries to work on a car he has, for about 15 minutes at a time, but pays for it afterwards.[53]
[53] Exhibit 1, T-Documents, T 19, page 125, paragraphs 18-19, SSCSD Decision dated 6 June 2017.
On 9 November 2017, the Applicant underwent an X-Ray and CT of his cervical spine which found there is mild to moderate right foraminal stenosis at the C5-6 level and early degenerative changes at C5-6 and C6-7.[54]
[54] Exhibit 1, T-Documents, T 28, page 169, Radiology Result: CT Brain & Cervical Spine.
After reviewing the original decision to refuse the Applicant’s claim for DSP, the ARO affirmed the decision on 16 March 2018, however disagreed with the JCA Report dated 6 September 2016 and assigned 10 points under Table 4 of the Impairment Tables for the Applicants spine condition.[55] The ARO decision provided:
During my discussion with you and your partner on 16 March 2018, I have been advised that you are able to sit comfortably for 5 minutes. However, your partner has confirmed that you do sit in bed for more than 5 minutes to have your meals. You move every few minutes to be comfortable. You are able to pick up a light object form a desk or table. You would not be able to access any items overhead height. As a result, your partner has moved the things to reachable levels.[56]
[55] Exhibit 1, T-Documents, T 30, page 174, Authorised Review Officer Decision and Notes.
[56] Exhibit 1, T-Documents, T 30, page 174, Authorised Review Officer Decision and Notes.
In response to questions dated, 29 May 2018, about the Applicant’s Spinal Condition during the Relevant Period, Dr Aziz provided limited responses explaining that he ‘cannot assess a persons activity status retrospective after a year’.[57]
[57] Exhibit 1, T-Documents, T 34, pages 183-185, Extract of Questionnaire by Dr Rashed Aziz.
The SSCSD recorded that at the Hearing conducted on 4 June 2018:
In respect of an average day around June of last year, Mr Lynch recalled that he would sit for around five minutes in bed before being able to get up. He said the pain was “24/7”. He could shower himself, but would need to sit down to put on his shorts. He wears “slip-on shoes”. During the day, he is constantly changing his posture. If he goes somewhere in a car – like a long drive to Brisbane – he will try to lay down in the back so he can change his position. His sleep is disrupted, and he takes Nurofen and Panadol before bed. At a supermarket, he will lean on the trolley, although he usually avoids going shopping. He is now considering getting a walking stick.[58]
[58] Exhibit 1, T-Documents, T 2, pages 7-8, paragraph 8, SSCSD Decision.
At Hearing Ms Malcolm told this Tribunal that, during the Relevant Period, the Applicant:
·     Was in pain all the time;
·     Had not yet been reviewed by a specialist;
·     Medication and physiotherapy did not help;
·     Could not stand up or sit for more than 5 to 10 minutes without needing to move around;
·     Can travel in the car however must lie down;
·     Could not pick up anything heavy ;
·     Could not bend;
·     Could sit for 30 minutes in the car with lots of stops;
·     Could not do any overhead activities;
·     Could get out of a chair but takes a while; and
·     When he got dressed needed a chair to do up shoes or sit on the bed.
The Respondent concedes that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and contend that the impairment should be assigned 10 points under Table 4 of the Impairment Tables.[59]
[59] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, pages 6-8, paragraphs 44-50.
Table 4 of the Impairment Tables considers spinal function. A moderate functional impact requires the following descriptor to be met:[60]
[60] Table 4 of the Impairment Tables, Part 3 of the Determination.

10

There is a moderate functional impact on activities involving spinal function.

(1)        The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)        the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)        the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)        the person is unable to bend forward to pick up a light object placed at knee height; or

(d)        the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

A severe functional impact requires the following descriptor to be met:[61]
[61] Table 4 of the Impairment Tables, Part 3 of the Determination.

20

There is a severe functional impact on activities involving spinal function.

(1)        The person is unable to:

(a)        perform any overhead activities; or

(b)        turn their head, or bend their neck, without moving their trunk; or

(c)        bend forward to pick up a light object from a desk or table; or

(d)        remain seated for at least 10 minutes.

Based on the medical evidence discussed above I am satisfied that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. As such, the functional impairment of the condition can be assessed under Table 4 of the Impairment Tables.
The Impairment Tables 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.[62] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[63]
[62] Section 6(2) of the Determination.
[63] Section 8(1) of the Determination.
The difference in the descriptors in Table 4 of the Impairment Tables in relation to a moderate and severe impairment relates to the ability to sit in or drive a car for at least 30 minutes and severity of the difficulty the person experiences in undertaking the outlined activities. The Tribunal is restricted to considering the functional impact that the Applicant’s spine condition caused him during the Relevant Period.
Considering the medical evidence and evidence given at Hearings by the Applicant and Ms Malcolm outlined above I am satisfied that the Applicant’s impairment should be assigned 10 points under Table 4 of the Impairment Tables. During the Relevant Period, I do not consider that the Applicant met the requirements to be assigned 20 points under Table 4 as he was able to sit in a car, albeit having to move around frequently for at least 30 minutes and there is no corroborating evidence that the Applicant met the descriptors to be assigned 20 points, in particular that he was unable to perform any overhead activities during the Relevant Period.
Based on the evidence before the Tribunal I find that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 10 points under Table 4 of the Impairment Tables.
Barrett’s Oesophagus
In a Patient Health Summary dated 27 September 2017, from the Eastside Medical Centre, Barrett’s oesophagus is listed in the ‘Active Past History’ section, with date of onset being 2007.[64] There are no further details on the Patient Health Summary, or other medical evidence before the Tribunal, in relation to the Applicant’s Barrett’s oesophagus condition having been diagnosed in 2007.
[64] Exhibit 1, T Documents, T 25, page 164, Patient Health Summary by Eastside Medical Centre.
Dr Kolitha Goonetilleke, from the Bundaberg Base Hospital, performed an upper-GI endoscopy on the Applicant and in a Procedure Report dated 11 October 2017, found that:
There were oesophageal mucosal changes suspicious for long-segment Barrett’s oesophagus present in the lower third of the oesophagus.[65]
[65] Exhibit 1, T Documents, T 25, page 164, Patient Health Summary by Eastside Medical Centre.
Dr Goonetilleke recommended: [66]
·     Discharge patient to home (ambulatory).
·     Return to general practitioner in 1 month.
·     Chart review in 2 weeks to check histopathology
·     Stay on PPI medication lifelong.
[66] Exhibit 1, T Documents, T 4, pages 60-68, Medical Report - DSP form by Dr Robert Luo, Ashfield
Medhealth Centre.
In a Centrelink Medical Certificate, Dr Tahsina Haque lists Barrett’s oesophagus as a temporary medical condition, with the date of onset as 2007, prognosis as uncertain and symptoms including ‘Abdo pain, sometimes feels food get stuck in his food pipe, has to make himself vomit,’ treatment being anti-reflux meds.[67]
[67] Exhibit 1, T Documents, T 32, page 181, Medical Certificate by Dr Tahsina Haque, Aspire Medical Centre.
In a letter dated 24 April 2018, Dr Wen Wong from the Surgical Department of the Bundaberg Base Hospital provided:
Anthony has been diagnosed to have Barrett’s oesophagus on 11/10/2017. The condition is stabilised and he has been booked for a repeat endoscopy on 2020. He needs no further intervention at this state and this condition should not prevent him from pursuing any work or study.[68]
[68] Exhibit 1, T Documents, T 33, page 182, Letter by Dr Wen Wong, Bundaberg Base Hospital.
At the Hearing, Ms Malcom told the Tribunal that when the Applicant suffers a severe episode he has to make himself vomit and may then have to be in bed for up to 3 days to recover. She said that the Applicant does not have to eat for the condition to flare up, just drink water. When asked about the diagnosis of the Applicant’s Barrett’s oesophagus condition by the Respondent, Ms Malcom told the Tribunal that it was diagnosed in 2008 and the Applicant moved to Ipswich because the doctor had said it was cancerous, but it was not. When asked about the medical information provided by Dr Wong, Ms Malcolm disagreed with Dr Wong and said the condition does impact on the Applicant as “he has to make himself vomit and this would get him sacked from a job”.
The Respondent contends that the Applicant’s Barrett’s oesophagus condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and accordingly any arising impairment cannot be rated under the Impairment Tables.[69]
[69] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 51-57.
Based on the medical evidence before the Tribunal, I find that the Applicant’s Barrett’s oesophagus condition was diagnosed on 11 October 2017, and as such cannot be considered fully diagnosed, fully treated and fully stabilised during the Relevant Period.
As I have found that the Applicant’s Barrett’s oesophagus condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, it is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Hypogonadism condition
In a Medical Report – Disability Support Pension Review, dated 28 July 2016,

Dr Leviste-Apostol diagnosed hypogonadism, providing that the diagnosis had been confirmed by Dr Demden, Endocrinologist on 15 June 2016, with a date of onset being 18 February 2016. The current treatment is listed as testosterone injection commencing on 10 June 2016 and future treatment being continued testosterone therapy and follow up with specialist. Current symptoms were listed as breast pain, low energy and endurance and being likely to persist for 3-12 months depending on the Applicant’s response to treatment.[70] This diagnosis and treatment is confirmed by Dr Leviste-Apostol in a Full Summary dated 6 October 2016.[71]
[70] Exhibit 1, T Documents, T 12, pages 95-95, Medical Report – DSP form by Dr Katherine Leviste-Apostol, Family Practice at Hinkler.
[71] Exhibit 1, T Documents, T 15, page 112, Full Medical Summary by Dr Katherine Leviste-Apostol.
Based on the reports from Dr Leviste-Apostol, I am satisfied that the Applicant’s hypogonadism condition was fully diagnosed at the Relevant Period. The Respondent does not dispute this finding.[72] The Respondent however contends that the Applicant’s hypogonadism condition as not fully treated or fully stabilised at the Relevant Period based on the report of Dr Leviste-Apostol, dated 28 July 2016.[73]
[72] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 9, paragraph 58.
[73] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 9, paragraphs 59 to 61.
At Hearing, Ms Malcolm told the Tribunal that the testosterone treatment makes the Applicant’s red blood cells go too high so he stopped the injections after 3 injections which were given 3 months apart. She said they did not help and that there is nothing else that can be done. She told the Tribunal that the condition caused the Applicant to have sore and enlarged breasts and no motivation. When asked about the Applicant’s red blood cell count by the Respondent and whether this was an ongoing condition, Ms Malcolm told the Tribunal that the Applicant’s red blood cell count went back to normal 6 months after ceasing testosterone injections and that his blood count is now back to normal.
The Applicant has not provided any further medical information in relation to a treatment plan, or ongoing prognosis, for his hypogonadism condition after ceasing testosterone therapy.
Based on the medical evidence before the Tribunal, and that provided by Ms Malcolm at Hearing, I find that the Applicant’s hypogonadism condition was not fully treated and fully stabilised during the relevant period as there is not sufficient evidence to establish that this condition would persist for more than 2 years.
As I have found that the Applicant’s hypogonadism condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, it is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Migraine condition
In a Full Summary dated 6 October 2016, Dr Leviste-Apostol lists migraines as part of the active – Past Medical Conditions with onset 2014. The current medication list includes Propranolol Hydrochloride Tablet (Propranolol hydrochloride) 40 mg, prescribed for migraine, with the last script being dated 25 August 2016.[74]
[74] Exhibit 1, T Documents, T15, page 112, Full Medical Summary by Dr Katherine Leviste-Apostol.
In a Patient Health Summary, printed on 27 September 2017 from the Eastside Medical Centre, migraine is listed as Active Past History with the onset of 2011 and symptoms being photophobia with nausea.[75]
[75] Exhibit 1, T Documents, T25, page 164, Patient Health Summary by Eastside Medical Centre.
In a Centrelink Medical Certificate, dated 16 April 2018, Dr Hague provided a diagnosis of migraine with date of onset being 2011, listing the condition as temporary with the symptoms being persistent headache and prognosis as ‘likely to show considerable improvement within 2 years’.[76]
[76] Exhibit 1, T Documents, T 32, page 181, Medical Certificate by Dr Tahsina Haque, Aspire Medical Centre.
Evidence before the Tribunal does not deal with the Applicant’s migraine condition in any great detail. The Tribunal does not have any material before it that provides an actual diagnosis, treatment plan, or full descriptions of any functional impairment it may cause.
The Respondent contends that the Applicant’s migraine condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period as there is minimal evidence relating to the condition.[77]
[77] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, page 10, paragraphs 65-71.
At Hearing, Ms Malcolm told the Tribunal that the Applicant’s migraine condition was still there and that he takes two different tablets and sleeps with a sleep apnoea machine, but still gets migraines. She said that when the Applicant has a migraine he needs to lay in darkness and his head throbs.
I accept the Respondents contentions, and based on the limited medical evidence before the Tribunal, I am not satisfied that the Applicants migraine condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s migraine condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing inability to work
As I have found that the Applicant does not have a total of 20 impairment points either on one table, or cumulative across multiple tables, there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s spine condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and accordingly based on the evidence before the Tribunal caused the Applicant a moderate functional impairment and can be assigned 10 points under Table 4 of the Impairment Tables.
I find that the Applicant’s hypogonadism condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s Barrett’s oesophagus and migraine conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..............................[SGD]....................................
Associate
Dated: 6 March 2019

Date of hearing: 30 January 2019

Advocate for the Applicant: Ms Janeen Malcolm, By phone

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2019] AATA 331

6 March 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	30 January 2019
Advocate for the Applicant:	Ms Janeen Malcolm, By phone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services