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

[2019] AATA 1405

Marshall and Secretary, Department of Social Services (Social services second review) [2019] AATA 1405 (25 June 2019)

Division:GENERAL DIVISION

File Number:2018/6664              

Re:Kevin Marshall  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:25 June 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

25 June 2019

INTRODUCTION

1. On 3 May 2017, Mr Kevin Marshall (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1]

   [1] Exhibit 1, T Documents, T27, pages 119-149, Claim for DSP.

2. The claim was rejected on 15 September 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 23 May 2018.[3]

   [2] Exhibit 1, T Documents, T36, pages 179-180, Centrelink Notice: Rejection of DSP claim.

   [3] Exhibit 1, T Documents, T45, pages 205-212, Authorised Review Officer Decision and Notes.

3. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on 19 October 2018.[4]

   [4] Exhibit 1, T Documents, T2, pages 5-10, Decision of the SSCSD.

4. 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 13 November 2018.[5]

   [5] Exhibit 1, T Documents, T1, pages 1-4, Application for Review.

5. On 3 June 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence under affirmation by telephone.

6. 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

7. On the Applicant’s DSP claim form[6] he lists the following disabilities, illnesses or injuries:[7]

   ·Blood cancer

   ·Pain and tenderness in legs

   ·Swelling in legs, back, neck

   ·Shortness of breath

   ·Sharp chest pain

   ·Fainting and dizziness

   [6] Exhibit 1, T Documents, T27, pages 119 - 149, Claim for DSP.

   [7] Exhibit 1, T Documents, T27, page 145, Claim for DSP.

8. The Applicant provided a number of medical reports with his claim for DSP. 

9. On 10 July 2017, the Applicant attended a face to face Job Capacity Assessment (JCA) with an Assessor, whose professional discipline is listed as mental health nurse.[8]  The Assessor found that the Applicant’s:

   ·myocardial infarction was fully diagnosed but not fully treated and stabilised as the Applicant had not engaged in recommended treatment;[9]

   ·polycythaemia rubra vera condition was fully diagnosed but not fully treated and stabilised as the Applicant was awaiting further tests in hospital;[10]

   ·respiratory disorder was fully diagnosed but not fully treated and stabilised as the Applicant was awaiting test results before further treatment was decided;[11]

   ·spinal disorder was a temporary condition as there was no information on treatment or prognosis;[12] and

   ·baseline work capacity was 15-22 hours per week with a capacity for work within 2 years with intervention of 15-22 hours per week.[13]

   [8] Exhibit 1, T Documents, T35, pages 170-178, JCA Report.

   [9] Exhibit 1, T Documents, T35, page 171, JCA Report.

   [10] Exhibit 1, T Documents, T35, page 172, JCA Report.

   [11] Exhibit 1, T Documents, T35, page 173, JCA Report.

   [12] Exhibit 1, T Documents, T35, page 174, JCA Report.

   [13] Exhibit 1, T Documents, T35, page 176, JCA Report.

10. A decision was made to reject the Applicant’s claim for DSP on 15 September 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[14]

    [14] Exhibit 1, T Documents, T36, pages 179-180, Centrelink Notice: Rejection of DSP claim.

11. The Applicant sought review of the decision and provided further medical evidence. 

12. On 2 May 2018, a further JCA was undertaken on the papers to consider the new information provided by the Applicant.[15]  The Assessor, whose professional discipline is listed as registered occupational therapist, provided a report dated 8 May 2018 reaching the same overall conclusion as the previous JCA report.[16] The Assessor reached the same conclusion in regard to the heart, lung and circulatory conditions,[17] however based on further evidence considered that the spinal condition was permanent but not fully diagnosed, treated and stabilised.[18]  The Assessor considered that the Applicant’s anxiety and depression were not fully diagnosed, fully treated and fully stabilised as there was no diagnosis from a clinical psychologist or psychiatrist.[19]

    [15] Exhibit 1, T Documents, T43, pages 191-202, JCA Report.

    [16] Exhibit 1, T Documents, T43, pages 191-202, JCA Report.

    [17] Exhibit 1, T Documents, T43, pages 192-195, JCA Report.

    [18] Exhibit 1, T Documents, T43, page 196, JCA Report.

    [19] Exhibit 1, T Documents, T43, pages 196-197, JCA Report.

13. On 23 May 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[20]

    ·You have the following medical conditions: ST Segment Elevation Myocardial Infarction (STEMI), Polycythaemia Rubra Vera (JKA-2), bilateral apical fibrosis with a few calcific foci and back pain.

    ·Your conditions are not accepted as being permanent as they have not been fully diagnosed, treated and stabilised.

    ·Your total impairment rating is nil.

    ·You do not have an impairment rating of 20 points or more.

    ·You do not have a severe impairment.

    ·You have not actively participated in a program of support.

    ·You do not have a continuing inability to work 15 hours per week or more because of your impairment.

    [20] Exhibit 1, T Documents, T45, pages 205-212, Authorised Review Officer Decision and Notes.

14. The Applicant provided further medical evidence and on 15 May 2018, he sought review of the DSP refusal decision by the SSCSD.[21] On 19 October 2018, the SSCSD affirmed the decision under review.[22]

    [21] Exhibit 1, T Documents, T44, pages 203-204, Referral to SSCSD.

    [22] Exhibit 1, T Documents, T2, pages 5-10, Decision of the SSCSD.

    THE LAW

15. The relevant law in assessing a person’s qualification for DSP is found in the
    Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination).

16. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:

    1.Does the Applicant have a physical, intellectual or psychiatric impairment;[23]

    2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[24] and

    3.Does the Applicant have a continuing inability to work?[25]

    [23] Section 94(1)(a) of the Act.

    [24] Section 94(1)(b) of the Act.

    [25] Section 94(1)(c) of the Act.

17. 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.

18. Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person could, or could not do, not on the basis of what the person chooses to do or what others do for them.[26] 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.[27] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[28]

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

    [27] Section 6(2) of the Determination.

    [28] Section 8(1) of the Determination.

19. 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.[29]

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

20. In order for a person’s condition to be considered permanent the condition must:[30]

    (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)be more likely than not, in light of available evidence, to persist for more than 2 years.

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

21. 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.[31]

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

22. A condition is considered to be fully stabilised if:[32]

    (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.

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

23. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[33]

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

24. 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.[34] 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.[35] 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.[36]

    [34] Section 10 of the Determination.

    [35] Sections 10(3) and (4) of the Determination.

    [36] Sections 10(5) and (6) of the Determination.

25. 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.[37]

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

26. 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.

27. 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.[38]

    [38] Section 94(3B) of the Act.

28. 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 becomes qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[39] 

    [39] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

29. 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.[40]

    [40] 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

30. The Relevant Period in this matter commences on 3 May 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 2 August 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

31. 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.[41] The Respondent considers the Applicant’s impairments include polycythaemia,[42] heart condition,[43] lung condition,[44] spinal condition[45] and mental health condition.[46]

    [41] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraph 34.

    [42] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 6-8, paragraphs 38-48.

    [43] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 8-9, paragraphs 49-53.

    [44] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 54-56.

    [45] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 9-10, paragraphs 57-59.

    [46] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 10-11, paragraphs 60-65.

32. The remaining issues for the Tribunal to consider are:

    1.Whether, within the Relevant Period, the Applicant’s impairments attracted 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?

33. At the Hearing, the Applicant gave evidence under affirmation and indicated to the Tribunal that he has been in the DSP process for three years and was fed up.  As a result, the evidence provided at the Hearing by the Applicant was very limited.

34. At the Hearing the Applicant told the Tribunal:

    ·     His blood condition contributed to all of his other conditions.

    ·     He feels that all functional impairments are mixed together, numbing in legs, feet and spine and pain.

    ·     He could drive a little bit but has too much pain.

    ·     His day is filled with pain and he feels aggravated so he tries to relax.

    ·     He could walk about 100 paces and then needs to take a rest and he cannot stand for long periods.

    ·     He has a carer who assists him.

35. On cross-examination, the Applicant told the Tribunal:

    ·     In relation to the blood condition, that between 2004 and 2017 the effects of the condition had its ups and downs, it comes and goes but overall has been the same.  Since 2017 however, the condition has gotten worse.

    ·     Since his heart attack, he has not been able to go fishing anymore – that was the only activity he could do. 

    ·     He had a job four or five years ago, standing in one spot at a macadamia nut farm, however he would experience pain after 30 minutes.

    ·     On 7 March 2017, it was fair to say that he did not know what would happen with his heart condition as they had sent him from cardiology to haematology units in the hospital.

    ·     That generalised pruritus (skin condition) is now his main symptom and it is like his skin is on fire, it burns and gets itchy. He was getting pruritus in May 2017, it has been there for a few years now and that the pain in his legs is tender due to itching.

    ·     He considers that his nerve condition is the same as the skin condition because there are sores everywhere, nerve ends are dying causing itching and weight is dropping off him and he is losing his muscle tone.

    ·     He saw a heart specialist a few weeks back, but prior to that no follow up.

    ·     He was not sure if he had received any further treatment for his lung condition as he has plenty of MRI’s and they check to see if the lung lesions had changed size.

36. The present issue for the Tribunal is whether, at or during the Relevant Period, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attract 20 points or more under the Impairment Tables.  A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[47] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[48] 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.[49] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[50]

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

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

    [49] Section 6(2) of the Determination.

    [50] Section 8(1) of the Determination.

    Polycythaemia Condition

1. The Respondent accepts that the Applicant’s polycythaemia condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and contends that the condition can be assigned a rating of no more than 5 points under Table 1 of the Impairment Tables.[51]

   [51] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 6, paragraph 38.

2. In a Medical Report for DSP dated 9 June 2015, Dr Greg Wilson from the Royal Brisbane and Women’s Hospital (RBWH) provided a diagnosis of polycythaemia rubra vera/2nd polycythaemia with a date of onset being 2004 and treatment including ongoing venesections.[52]

   [52] Exhibit 1, T Documents, T15, pages 72-82, Medical Report, Disability Support Pension.

3. The Applicant has been treated with regular venesections over a number of years.[53]

   [53] Exhibit 1, T Documents, T40, page 187, Appointment List; Exhibit 1, T Documents, T41, page 189, Appointment List.

4. In a letter dated 12 June 2017, Dr Ann Gillett, clinical haematologist at the RBWH provided:[54]

   [54] Exhibit 1, T Documents, T33, page 168, Letter from Dr Ann Gillett.

   Final Diagnosis: Myeloproliferative neoplasm (polycythaemia rubra vera)

   [The Applicant] has been a patient of the Haematology Department, Royal Brisbane and Women's Hospital for over ten years.

   He was initially diagnosed with secondary polycythaemia and required intermittent venesections.

   Despite several non diagnostic bone marrow examinations and risk factors for secondary polycythaemia, a definitive diagnosis of a myeloproliferative neoplasm (JAK2 – polycythaemia rubra vera) was made on bone marrow examination in March 2017.

   This disorder is associated with an increased risk of thrombosis.

   …

   [The Applicant] was treated initially with regular venesections and may need chemotherapy in the future.

   His clinical condition makes it difficult for him to work in his previous occupation as a house painter.

   He will require regular review in the haematology department and will be unfit for work until his response to treatment is known.

5. The Respondent accepts that the treatment being undertaken for the Applicant’s polycythaemia condition was part of the ongoing treatment for a longstanding condition and any further treatment was unlikely to result in significant functional improvement or would have merely returned the condition to the state it was prior to the exacerbation of the condition.[55]

   [55] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 7, paragraph 41.

6. In response to a questionnaire dated 28 November 2018 Ms Anne Skowronski has provided evidence in relation to the Applicant’s level of impairment under Table 1 of the Impairment Tables.[56] This document however, offers no assistance to the Tribunal, as Ms Skowronski does not indicate which of the Applicant’s conditions her statements relate to or the time frame to which her opinion applies.

   [56] Exhibit 1, T Documents, T48, pages 215-216, Questionnaire, Ms Anne Skowronski.

7. Dr Gillett in an email dated 14 January 2019 stated that the Applicant’s treatment to date had been venesection and oral hydroxyurea and that his most significant symptom is generalised pruritus, which is severe and leads to pain and that this particular symptom responds poorly to the standard treatments for PRV.[57]  Dr Gillett provided that the Applicant describes lethargy. Dr Gillett also stated that the Applicant’s polycythaemia condition makes it more difficult for him to walk far outside of his home and that he has difficulty performing activities involving use of his body due to nerve pain.[58] The email from Dr Gillett has been provided well outside the Relevant Period and relates to the Applicant’s condition at the time it was written, as such it offers no assistance to the Tribunal in this matter.

   [57] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment B.

   [58] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment B.

8. The Respondent contended that:[59]

   …taking into account the ongoing impairment caused by the fluctuating condition, a rating of no more than 5 points under table 1 can be assigned.  That is, the applicant has difficulties performing physically active tasks but could still perform tasks not involving heavy manual labour.  The Secretary accepts that there is some evidence which suggests a higher impairment but the Secretary contends that this higher impairment is also due to the exacerbation caused by the heart condition and the lung condition.  The Secretary contends the heart and lung conditions are not fully treated and stabilised in the qualification period and therefore the impairment caused by these other conditions cannot be considered when determining the points to be assigned.

   [59] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 8, paragraph 47.

9. Table 1 of the Impairment Tables relates to functions requiring physical exertion and stamina.  The descriptors that relate to mild functional impact and moderate functional impact are as follows:

5

There is a mild functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)       walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)      is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

1. Based on the medical evidence set out above, I find that the Applicant’s polycythaemia 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 1 of the Impairment Tables.

2. There is very little evidence before the Tribunal in relation to the functional impact of the Applicant’s polycythaemia condition during the Relevant Period.  Considering the evidence outlined above, I am satisfied that the Applicant’s impairment can at most be assigned 5 points under Table 1 of the Impairment Tables.

3. Based on the evidence before the Tribunal, I find that the Applicant’s polycythaemia condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned a functional impairment rating of 5 points under Table 1 of the Impairment Tables.

   Heart Condition

4. The Applicant was admitted to the RBWH on 26 February 2017 with chest pains due to having a ST-segment elevation myocardial infarction (STEMI). The Applicant underwent a number of tests and was referred for further tests, reviews by his general practitioner, cardiology follow up locally at the Bundaberg Hospital and advised to cease smoking.[60]

   [60] Exhibit 1, T Documents, T30, pages 161-163, Procedure Report.

5. In a report dated 12 June 2017, Dr Gillett, clinical haematologist provided: [61]

   [The Applicant] developed myocardial ischaemia in February 2017 and required admission to the coronary care unit.  A coronary angiogram did not confirm significant coronary artery disease and, by exclusion, it was felt that his symptoms were precipitated by a high haemoglobin.

   [61] Exhibit 1, T Documents, T33, page 168, Letter from Dr Ann Gillett.

6. In medical certificates dated 23 June 2017,[62] 21 September 2017,[63] by Dr Syed Shah and dated 28 March 2018,[64] by Dr Shafiq ur Rehman it was indicated that the Applicant’s STEMI was under cardiac team for investigation and that treatment included cardiac MRI, rehab and cardiac review at RBWH were planned.

   [62] Exhibit 1, T Documents, T34, page 169, Medical Certificate, Dr Syed Shah.

   [63] Exhibit 1, T Documents, T37, page 181, Medical Certificate, Dr Syed Shah.

   [64] Exhibit 1, T Documents, T42, page 190, Medical Certificate, Dr Shafiq ur Rehman.

7. On 12 October 2017, the Applicant had a cardiac MRI which did not show any unusual findings.[65]

   [65] Exhibit 1, T Documents, T38, page 183, Radiology Exam Report.

8. The Respondent contended that the Applicant’s heart condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period providing that:[66]

   The applicant was hospitalised for a myocardial infarction only shortly before applying for DSP.  The applicant left hospital with the recommendation to undertake a number of tests. On 12 June 2017, the applicant’s haematologist states that it was “felt” that the myocardial infarction was precipitated by the polycythaemia condition.  A cardiac MRI then was not completed until 12 October 2017.  The Secretary contends that the heart condition cannot be said to be fully diagnosed, treated and stabilised as the recommended tests had not been completed and therefore a clear diagnosis could not be made and treatment could not be completed during the qualification period.

   [66] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 8-9, paragraph 52.

9. Based on the evidence before the Tribunal, I find that the Applicant’s heart condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period as he was still engaging in investigations and further treatment was planned at the Relevant Period.

10. As I have found that the Applicant’s heart condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Lung Condition

11. A CT scan performed on 17 February 2016 showed that the Applicant had bilateral apical fibrosis with a few calcific foci.[67]

    [67] Exhibit 1, T Documents, T18 page 94, CT Scan Chest: Dr Nagendra Singh Panwar.

12. In a medical certificate dated 19 April 2017, Dr Rehman, general practitioner, listed that the Applicant has chest pain, with shortness of breath and is booked for a bronchoscopy in RBH on 26 April 2017.[68]

    [68] Exhibit 1, T Documents, T25, page 116, Medical Certificate, Dr Shafiq ur Rehman.

13. In medical certificates dated 5 May 2017,[69] 23 June 2017[70] and 21 September 2017[71] Dr Shah indicated that the bronchoscopy was done and they were awaiting results.

    [69] Exhibit 1, T Documents, T29, page 160, Medical Certificate, Dr Syed Shah.

    [70] Exhibit 1, T Documents, T34, page 169, Medical Certificate, Dr Syed Shah.

    [71] Exhibit 1, T Documents, T37, page 181, Medical Certificate, Dr Syed Shah.

14. The Respondent contends that the Applicant’s lung condition was fully diagnosed, but was not fully treated or fully stabilised during the Relevant Period as the condition was still to be treated and stabilised.[72]

    [72] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 9, paragraphs 54-56.

15. Based on the evidence before the Tribunal, I find that the Applicant’s lung condition was fully diagnosed however was not fully treated and fully stabilised at the Relevant Period as he was still engaging in treatment and investigation of the condition during the Relevant Period.

16. As I have found that the Applicant’s lung condition was not fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Spinal Condition

17. The Applicant’s back pain was identified in a Team Care Arrangement Plan by Dr Farzaneh Ghavami Moghadam, general practitioner, dated 29 January 2015[73]. The condition at that time was considered to be temporary by Dr Moghadam.[74] Treatment for the Applicant’s back pain included physiotherapy.[75]

    [73] Exhibit 1, T Documents, T10 pages 60-62, Team Care Arrangements – Osteoarthritis.

    [74] Exhibit 1, T Documents, T11, page 63, Medical Certificate, Dr Farzaneh Ghavami Moghadam.

    [75] Exhibit 1, T Documents, T12, page 64, Physiotherapy Report, Warren Hobson.

18. In a medical certificate dated 27 January 2016, Dr Shah, general practitioner, said that the Applicant’s back pain was an exacerbation of an existing condition.[76] In the medical certificates provided around the time the Applicant made his claim for DSP the general practitioner listed back pain as a condition with an uncertain prognosis.[77]

    [76] Exhibit 1, T Documents, T17, page 93, Medical Certificate, Dr Syed Shah.

    [77] Exhibit 1, T Documents, T23, page 109, Medical Certificate, Dr Syed Shah; T25, page 116, Medical Certificate, Dr Shafiq ur Rehman; T29, page 160, Medical Certificate, Dr Syed Shah.

19. In the JCA Report dated 2 September 2016, the Assessor provided in relation to the Applicant’s back pain: ‘Customer reported analgesia as required, no further physiotherapy treatment, awaiting referral to Orthopaedic Surgeon for initial assessment at RBWH.’[78]

    [78] Exhibit 1, T Documents, T20, page 100, JCA Report.

20. The Respondent contends that the Applicant’s spinal condition was not fully diagnosed, fully treated or fully stabilised in the Relevant Period as there is no medical evidence confirming the cause of the back pain.[79]

    [79] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 59.

21. Based on the evidence before the Tribunal, I find that the Applicant’s spine condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.  There is insufficient evidence available to the Tribunal in relation to any specialist review or ongoing treatment plan to address the Applicant’s back pain.

22. As I have found that the Applicant’s spinal condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.

    Mental Health Condition

23. To be considered fully diagnosed, Table 5 of the Impairment Tables, which relates to mental health, requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist), with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[80]

    [80] Impairment Table 5 – Mental Health Function, Part 3 of the Determination. 

24. In a letter dated 31 October 2017, Ms Anne Skowronski, psychologist outlined that the Applicant had been referred to her in August 2017 and since then and the date of the letter he had attended four appointments with her and they had worked on mindfulness and CBT strategies.  Ms Skowronski diagnosed the Applicant as having anxiety and depression.[81]

    [81] Exhibit 1, T Documents, T39, pages 184-185, Letter from Anne Skowronski.

25. Ms Skowronski provided further details in relation to the Applicant’s mental health condition in response to a questionnaire dated 28 November 2018.[82] As Ms Skowronski does not make any reference to whether her comments are reflective of the Applicant’s condition during the Relevant Period or are limited to the date of the questionnaire her responses do not assist the Tribunal.

    [82] Exhibit 1, T Documents, T48, pages 215-224, Questionnaire, Ms Anne Skowronski.

26. In a letter dated 8 February 2019, Dr Scott Jenkins confirms the Applicant’s diagnosis of major depression and anxiety.[83]

    [83] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, Attachment C.

27. The Respondent contends that the Applicant’s mental health condition was fully diagnosed during the Relevant Period however was not fully treated and fully stabilised as treatment only commenced after the Applicant lodged his claim.[84] The Respondent contended:

    Ms Skowronski states in her report dated 28 November 2018 that treatment would not result in significant improvement (T48, p217). However, Ms Skowronsi would not be able to comment as at the qualification period as she only commenced seeing the applicant at the end of that period.  Ms Skowronski also states that the mental health condition is closely aligned to his “chronic pain and psychical conditions” (T48, p217). This suggests that the mental health condition cannot be said to be stabilised until the other medical conditions are stabilised.[85]

    [84] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, page 10, paragraph 64.

    [85] Exhibit 2, Secretary’s Statement of Issues, Facts & Contentions, pages 10-11, paragraph 64.

28. Based on the evidence before the Tribunal, I find that the Applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period. As the Relevant Period ended on 2 August 2017 and the Applicant was referred to Ms Skowronski in August 2017, although the Applicant’s mental health condition has subsequently been fully diagnosed that was not the case during the Relevant Period. If I had found that the Applicant’s mental health condition was fully diagnosed, there is limited information in relation to the treatment received during the Relevant Period and it is clear that further treatment was planned.

29. As I have found that the Applicant’s mental health condition was not fully diagnosed, fully treated and fully stabilised during the Relevant Period, the 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

30. As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.

    CONCLUSION

31. I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

32. I find that the Applicant’s polycythaemia condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, I find that the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 1 of the Impairment Tables.

33. I find that the Applicant’s lung 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 this condition.

34. I find that the Applicant’s heart, spine and mental health 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 these conditions.

35. I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.

36. Accordingly, the decision under review is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 25 June 2019

Date of hearing:	3 June 2019
Applicant:	By phone
Advocate for the Respondent:	Ms Donna Smith
Solicitors for the Respondent:	Department of Human Services