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

Marshall and Secretary, Department of Social Services (Social services second review) [2019] AATA 615 (2 April 2019)
Division:GENERAL DIVISION
File Number: 2018/5972
Re:Gary Marshall
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:2 April 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) Act1999 (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
2 April 2019
INTRODUCTION

On 7 August 2017, Mr Gary Marshall (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T 38, page 118, DSP claim form; T67, page 214 Centrelink customer contact notes.
The claim was rejected on 14 August 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 24 May 2018.[3]
[2] Exhibit 1, T Documents, T 40, pages 150-151, Centrelink Notice: Rejection of DSP claim.
[3] Exhibit 1, T Documents, T 59, pages 194-202, 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

16 August 2018.[4]
[4] Exhibit 1, T Documents, T 2, pages 3-10, 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 15 October 2018.[5]
[5] Exhibit 1, T Documents, T 1, pages 1-2, Application for Review.
On 13 March 2019, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence by affirmation by telephone.
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
On the Applicant’s claim for DSP form[6] he lists the following disabilities, illnesses or injuries:[7]
-Hypertension
-Depression
-Anterolisthesis of L5/S1
-L5/S1 Bilateral TLIF
-Osteoarthritis – knees
[6] Exhibit 1, T Documents, T 38, pages 118-147, DSP claim form.
[7] Exhibit 1, T Documents, T 38, page 143, DSP claim form.
The Applicant was previously a diesel fitter until 1996 and as set out in a chronology of medical evidence has a history of spinal problems in both his lumbar and cervical spine, and problems with his knees, causing him ongoing chronic and acute pain and mobility difficulties.[8]
[8] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 1-2, paragraph 3; and Attachment A – Summary of medical evidence.
On 14 August 2017, a file assessment was undertaken by an Assessor, whose professional discipline is listed as an ‘Exercise Physiologist’.[9] The Assessor issued a Services Recommendation for DSP medical eligibility report, recommending that that the Applicant’s claim for DSP was ‘manifestly medically ineligible’.[10]
[9] Exhibit 1, T Documents, T 39, pages 148-149, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
[10] Exhibit 1, T Documents, T 39, pages 148-149, Assessment Services Recommendation for Disability Support Pension medical eligibility report.
A decision was made to reject the Applicant’s DSP application on 14 August 2017, on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[11]
[11] Exhibit 1, T Documents, T 40, pages 150-151, Centrelink Notice: Rejection of DSP claim.
The Applicant sought a review of the 14 August 2017 decision and provided further medical evidence. On 13 April 2018, the Applicant attended a face to face Job Capacity Assessment (JCA) with an Assessor, whose professional discipline is listed as a ‘Registered Occupational Therapist’.[12] The Assessor provided a JCA report dated 19 April 2018, opining that the Applicant did not qualify for DSP.[13]
[12] Exhibit 1, T Documents, T 56, page 176, Job Capacity Assessment Report.
[13] Exhibit 1, T Documents, T 56, pages 176-190, Job Capacity Assessment Report.
On 24 May 2018, an ARO affirmed the decision to refuse the Applicant’s claim for DSP. The ARO made the following key findings:[14]
·Your conditions of degenerative disease of lumbar spine/cervical spondylitis, left knee osteoarthritis, hypertension and depression are not accepted as being permanent as they have not been fully treated and stabilised.
·Your total impairment rating is 0.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
[14] Exhibit 1, T Documents, T 59, page 194-202, Authorised Review Officer Decision and Notes.
On 14 June 2018, the Applicant sought review of the DSP refusal decision by the SSCSD.[15] On 31 August 2018, the SSCSD affirmed the decision under review.[16]
[15] Exhibit 1, T Documents, T 60, pages 203-204, Referral to Social Services & Child Support Division.
[16] Exhibit 1, T Documents, T 2, pages 3-10, Decision of the SSCSD.
THE LAW
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).
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;[17]
2.Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[18] and
3.Does the Applicant have a continuing inability to work?[19]
[17]    Section 94(1)(a) of the Act.
[18]    Section 94(1)(b) of the Act.
[19]    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.[20] 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.[21] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[22]
[20]    Section 6(1) of the Determination.
[21]    Section 6(2) of the Determination.
[22]    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.[23]
[23] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[24]
(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.
[24] 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 2 years.[25]
[25] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[26]
(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.
[26] 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 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.[27]
[27] 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.[28] 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.[29] 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.[30]
[28]    Section 10 of the Determination.
[29]    Sections 10(3) and (4) of the Determination.
[30]    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.[31]
[31] 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.[32]
[32] 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.[33]
[33] 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.[34]
[34] 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 7 August 2017, being the date the Applicant lodged his claim for DSP, and ending 13 weeks later on 7 November 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[35] and the Respondent considers the Applicant’s impairments include adjustment disorder with depressed mood,[36] lumbar spine condition,[37] cervical spine condition,[38] lower limb condition,[39] skin cancer,[40] bladder condition,[41] and hearing loss.[42]
[35]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 37.
[36]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraphs 38-43.
[37]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 44-46.
[38]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 47-49.
[39]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 50-51.
[40]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 52-53.
[41]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 54-55.
[42]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraph 56.
The remaining issues for the Tribunal to consider are:
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?
At the Hearing, the Applicant gave evidence by phone, under affirmation and openly responded to questions from the Tribunal and cross examination from the Respondent.

I consider that the Applicant gave honest answers to the questions he was asked. I accept that the Applicant suffers impairments and has had a particularly difficult time due to his impairments.
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.[43] As such the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be likely to persist for more than 2 years.[44] 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.[45] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[46]
[43]    Section 6(3) of the Determination.
[44]    Section 6(4) of the Determination.
[45]    Section 6(2) of the Determination.
[46]    Section 8(1) of the Determination.
The Applicant provided a large number of medical reports and consequently the Tribunal has before it a large amount of medical evidence dating back to July 2014.[47]
[47] Exhibit 1, T Documents.
The Respondent contended that only the Applicant’s adjustment disorder with depressed mood and lumbar spine conditions could be considered permanent during the relevant period and could be assessed in relation to functional impact under the Impairment Tables.[48]
[48] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-11, paragraphs 38-56.
At the Hearing, the Applicant conceded that his cervical spine, lower limb, skin cancer, bladder, hearing loss and hypertension conditions (collectively ‘other conditions’), were not fully treated and fully stabilised during the Relevant Period. In summary, the Applicant told the Tribunal that he understood that these conditions (other than the hypertension condition) were either still being treated or awaiting treatment during the Relevant Period and that they are still being stabilised today. The Applicant told the Tribunal that he agreed that the evidence in relation to his hypertension condition was provided well outside the Relevant Period and as such could not be considered fully diagnosed, fully treated and fully stabilised during the Relevant Period.
Based on the medical evidence before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant at the Hearing, I am not satisfied that the Applicant’s other conditions were fully diagnosed, fully treated, and fully stabilised during the Relevant Period. Accordingly, the Applicant’s other conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
The question before the Tribunal is therefore narrowed to whether the Applicant’s adjustment disorder with depressed mood and lumbar spine conditions within the Relevant Period cause impairments that attract 20 points or more under the Impairment Tables.
Adjustment disorder with depressed mood condition
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant suffered from a mental health condition during the Relevant Period. This point is not in contention.[49]
[49] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 38.
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 clinical psychologist (if the diagnosis has not been made by a psychiatrist).[50]
[50] Impairment Table 5 – Mental Health Function of the Determination.

In a Centrelink medical certificate dated 30 May 2016, Dr Jaykumar Patel, general practitioner, first diagnosed the Applicant with depression providing that symptoms were low mood, suicidal thoughts and the prognosis had worsened.[51]
[51] Exhibit 1, T Documents, T 12, page 70, Medical Certificate authored by Dr Jaykumar Patel dated 30 May 2016. This diagnosis was also confirmed by Dr Patel in later Medical Certificates.
Dr Jathoash Pala Valappil, psychiatrist, provided a report to Dr Patel dated 25 August 2016 diagnosing the Applicant with adjustment disorder with depressed mood. Dr Valappil noted that the Applicant had been referred to a psychologist early that year but did not find the therapy helpful after four sessions. He provided that the Applicant reported he was suicidal since February 2016, spends his time mostly at home watching TV and has started mowing the grass and cleaning the garden. Dr Valappil as part of a management plan recommended further increase of the Applicant’s use of Endep, referral to psychologist for CBT (Cognitive Behaviour Therapy) and optimised pain management.[52]
[52] Exhibit 1, T Documents, T 18, pages 81-82, Letter from Dr Jathoash Pala Valappil, psychiatrist dated 25 August 2016.
In a further report to Dr Patel dated 21 September 2017, Dr Valappil confirmed his earlier diagnosis of an adjustment disorder with depressed mood. Dr Valappil noted the Applicant had previously unsuccessfully engaged in psychological therapy, has trialled medication for his condition and provided:
As mentioned in my previous letter, I am of the impression that he suffers from an Adjustment Disorder with Depressed Mood. There are multiple medical conditions and social factors continuing to his depression and maintaining his symptoms. From his description, I believe the medical conditions are going to be chronic and will required surgeries for which he will be waiting for 1-2 years or more. He is likely to experience the pain and impaired functioning during this time, which is likely to maintain his depressive symptoms. I am of the opinion that his Adjustment Disorder with depressed mood has stabilised and is unlikely improve further with any specific psychiatric treatment.[53]
[53] Exhibit 1, T Documents, T 41, pages 152-153, Letter from Dr Jathoash Pala Valappil, psychiatrist dated 21 September 2017.
At the Hearing the Applicant told the Tribunal that during the Relevant Period:
·He was suicidal as his back operation had gone wrong, he had no money for medication, could not get around and had no help;
·He was depressed as he had worked for 52 years and now his world was gone, his marriage had ended and his wife had taken his money;
·He was living by himself, in his caravan and had difficulties getting out of bed and that although there were only 3 steps to his fridge he would not eat or shower as he was too depressed and ashamed to go out;
·He only went out to go to the doctors if someone would take him, he had two friends in the caravan park who would assist him by doing his shopping and helping him to appointments if needed;
·He did not talk to his family, he kept to himself as he was confused, bitter and angry that his operation had gone wrong;
·He could not concentrate, he had trouble filling out forms, could not read a book, watched television however not much and spent all the time as he could not get out of bed;
·He could not make decisions, he did not have bills only his rent and often he forgot to pay it, the doctors surgery was only 500 metres away and they would remind him of his appointments; and
·He could not work as he could not bend and was too inconsistent.
On cross examination, the Respondent asked the Applicant whether he was excluded from doing the above tasks solely because of his mental health or also because of his physical conditions. The Applicant told the Tribunal that it was his physical conditions that mainly contributed, “it was his back”.
Table 5 of the Impairment Tables considers mental health function and requires that a person has difficulties with most of the following descriptors:
(a)self care and independent living;
(b)social/recreational activities and travel;
(c)interpersonal relationships;
(d)concentration and task completion;
(e)behaviour, planning and decision-making;
(f)work/training capacity. [54]
[54] Table 5 of the Impairment Tables, Part 3 of the Determination.
If a person has mild difficulties with most of these activities, they will be assigned 5 impairment points. If a person has moderate difficulties with most of these activities, they will be assigned 10 impairment points. If a person has severe difficulties with most of these activities, they will be assigned 20 impairment points.
The Respondent contends that the Applicants adjustment disorder with depressed mood condition was fully diagnosed, fully treated, and fully stabilised during the Relevant Period and impacts upon the Applicant’s mental health function. The Respondent contends that it is appropriate to consider the Applicant’s impairment under Table 5 of the Impairment Tables; however that no points can be assigned as there is insufficient reporting of the Applicant’s symptoms and corroborating evidence from his doctors in order to assess the level of functional impact caused by the condition.[55]
[55] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraphs 38-43.
Based on the medical evidence discussed above I am satisfied that the Applicant’s adjustment disorder with depressed mood 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 5 of the Impairment Tables.
The medical evidence before the Tribunal in relation to the Applicant’s adjustment disorder with depressed mood condition is limited in relation to the functional impact the condition has upon the Applicant referring only to low mood and suicidal thoughts.
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.[56] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[57]
[56] Section 6(2) of the Determination.
[57] Section 8(1) of the Determination.
Noting the evidence given by the Applicant at the Hearing I accept that his adjustment disorder with depressed mood condition did cause him a functional impairment during the Relevant Period and that any such functional impairment is intrinsically linked to his spine condition and associated pain. However, considering the medical evidence before the Tribunal, I agree with the contention of the Respondent that there is insufficient corroborating medical evidence to assist the Tribunal to assign a mild, moderate or severe impairment rating under the Impairment Tables.
Based on the evidence before the Tribunal I find that the Applicant’s adjustment disorder with depressed mood condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 0 points under Table 5 of the Impairment Tables.
Lumbar spine condition
There is a large amount of medical evidence before the Tribunal that makes reference to the Applicant’s lumbar spine condition as set out and referenced by the Respondent in a chronology of medical evidence.[58]
[58] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 1-2, paragraph 3; and Attachment A – Summary of medical evidence.
In a Centrelink medical certificate dated 15 July 2014 Dr Tom Moore, provides a diagnosis of degenerative disease lumbar spine.[59] This diagnosis was also confirmed by Dr Geoffrey Seet, general practitioner, on 2 February 2015, who also noted that the condition was causing acute and chronic pain with a referral to the Princess Alexandra Hospital Orthopaedic Department.[60]
[59] Exhibit 1, T Documents, T4, page 56, Medical Certificate authored by Dr Tom Moore, dated 15 July 2014.
[60] Exhibit 1, T Document, T6, page 59, Medical Certificate authored by Dr Geoffrey Seet, dated 2 February 2015.
Dr Patel, the Applicant’s current general practitioner also confirmed the diagnosis in a number of medical certificates and reports.
In a letter dated 25 July 2016 to Dr Patel, Dr Ananthababu Pattavilakom Sadasivan, neurosurgeon and pain physician, reported that:
Gary came to see me today with MRI and Bone scan. MRI shows
·     anterolisthesis of L5 on S1 of 8mm
·     bilateral pars defects
·     degenerative changes at the L5/S1 facet joints
·     severe foraminal L5/S1 bilaterally compressing the L5 never roots
Bone scan shows
·     severe active degenerative arthritis in the right knee joint
·     degenerative change in the L5/S1 vertebral body endplates[61]
[61]    Exhibit 1, T Documents, T15, page 78, Letter authored by Dr Ananthababu Pattavilakom Sadasivan dated 25 July 2016.
Dr Pattavilakom Sadasivan opined, regarding lumbar spine (L5S1 anterolisthesis), that the Applicant “merits surgical treatment (decompression and L5S1 instrumental fusion).”[62]
[62] Exhibit 1, T Documents, T15, page 78, Letter authored by Dr Ananthababu Pattavilakom Sadasivan dated 25 July 2016.
In a letter dated 15 September 2016 to Dr Patel, Dr Jason Correia, senior neurosurgical registrar (for Dr Pattavilakom Sadasivan) reported that the Applicant had been offered a L5/S1 bilateral transforaminal lumbar interbody fusion, under the care of Dr Pattavilakom Sadasivan and had been placed on the wait list, with the “aim to reduce his spondylolisthesis, insert a cage into the disc space and to fuse L5 and S1, via a transforaminal approach bilaterally.”[63]
[63] Exhibit 1, T Documents, T 20, page 84, Letter authored by Dr Jason Correia, dated 15 September 2016.
In April 2016, the Applicant underwent the transforaminal lumbar interbody fusion.[64]
[64] Exhibit 1, T Documents, T 49, page 162, Letter authored by Dr Matthew Laminectomy, dated 25 January 2018; T64, page 209, Letter authored by Dr Boyuan Khoo, dated 31 July 2018.
In a letter dated 25 January 2018, to Dr Patel, Dr Matthew Laminectomy, neurosurgical resident (for Dr Pattavilakom Sadesivan) provided that the Applicant presented for a one year review following his surgery. Dr Laminectomy provided that his impression was that the Applicant’s lumbar symptoms are stable with no need for any further surgery and that the plan is to continue the Applicant’s current regime of analgesia with up-titration as necessary by Dr Patel.[65]
[65] Exhibit 1, T Documents, T 49, page 162, Letter authored by Dr Matthew Laminectomy, dated 25 January 2018.
In providing a JCA report dated 19 April 2018[66] the Assessor spoke to Dr Patel who advised that the Applicant’s back condition is episodic and that when the Applicant has flare ups he needs to stand up within minutes of a consultation and would have difficulty picking up a light object from knee height and has on occasion had to use crutches to mobilise.[67]
[66] Exhibit 1, T Documents, T 56, page 176, Job Capacity Assessment Report dated 19 April 2018.
[67] Exhibit 1, T Documents, T 57, pages 191-192, Additional Medical Evidence for Disability Support Pension Record dated 19 April 2018.
In a face to face assessment with the Applicant conducted on 14 April 2018, the Assessor noted that the Applicant was able to sit in the assessment for 45 minutes without needing to stand and therefore the Assessor anticipated that the Applicant can generally sit for at least 30 minutes.[68]
[68] Exhibit 1, T Documents, T 56, pages176-190, Job Capacity Assessment Report dated 19 April 2018.
The Respondent concedes that the Applicant’s lumbar spine condition was fully diagnosed, fully treated, and fully stabilised during the Relevant Period and contend that the impairment should be assigned 5 points under Table 4 of the Impairment Tables. The Respondent contends this rating on the basis that the Applicant has some difficulty bending to knee level and straightening up again and there is insufficient evidence to verify that he is unable to sit for at least 30 minutes and that he satisfies the other descriptors for a moderate impairment rating.[69]
[69] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions, pages 8-9, paragraphs 44-46.
At the Hearing the Applicant told the Tribunal that during the Relevant Period:
·       He disagreed that he could sit for 45 minutes as described by the JCA. He told the Tribunal that he was sitting on the edge of the chair and was moving around, leaning forwards and backwards, side to side, due to discomfort;
·       A flare up can last 5 to 10 days and during a bad flare up he cannot move out of bed, is constipated and just sleeps. He was experiencing between 2 and 3 flare ups a month;
·       When he is not having a flare up he is still stiff and restricted in movement;
·       He could not sit for 10 minutes without pain, even when he is not having a flare up;
·       He could not bend to pick something up off the floor;
·       Could not walk far;
·       He only travels distances of about 10 minutes in the car;
·       Could not lay on his back to sleep;
·       He could put clothes on the line when he feels ok however they may stay there for weeks or until someone else gets them back in if he has a flare up;
·       Could not bend forward to pick up a light object placed at knee height; and
·       Could get out of a chair without assistance however it is difficult.
Under cross examination from the Respondent, the Applicant provided:
·       He could drive only for around 20 minutes;
·       He has set his car mirrors up so that he does not have to turn very much;
·       He did not drive much, only to doctor’s appointments or to the shopping centre once a month;
·       When he saw the JCA he was not having a flare up;
·       During the Relevant Period, there were more bad times of flare ups than good times; and
·       Agreed with Dr Patel’s comment that in flare ups he would have difficulties picking up light objects as he can do it but with lots of difficult as it is not in his nature not to push himself.
Table 4 of the Impairment Tables considers spinal function. A mild functional impact requires the following descriptor to be met:[70]
[70] Table 4 of the Impairment Tables, Part 3 of the Determination.

5

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

(1)      The person has some difficulty in:

(a)      activities over head height (e.g. activities requiring the person to look upwards); or

(b)      bending to knee level and straightening up again without difficulty; or

(c)      turning their trunk or moving their head (e.g. to look to the sides or upwards).

Table 4 of the Impairment Tables considers spinal function. A moderate functional impact requires the following descriptor to be met:[71]
[71] 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:[72]
[72] 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 lumbar 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.[73] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[74] When assessing impairments caused by conditions that have stabilised as episodic or fluctuating a rating must be assigned, which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.[75]
[73]    Section 6(2) of the Determination.
[74]    Section 8(1) of the Determination.
[75]    Section 11(4) of the Determination.
Considering the medical evidence and evidence given at the Hearing by the Applicant outlined above, I am satisfied that the Applicant’s impairment should be assigned 5 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 10 or 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 he was able to bend forward with difficulty to pick up a light object placed at knee height.
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 5 points under Table 4 of the Impairment Tables.
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 adjustment disorder with depressed mood condition was fully diagnosed, fully treated or fully stabilised during the Relevant Period. As there is insufficient evidence before the Tribunal in relation to the Applicant’s functional impact resulting from his mental health condition, 0 points are assigned under Table 5 of the Impairment Tables.
I find that the Applicant’s lumbar spine condition was fully diagnosed, fully treated or fully stabilised during the Relevant Period. Based on the evidence before the Tribunal, the condition caused the Applicant a mild functional impairment and can be assigned 5 points under Table 4 of the Impairment Tables.
I find that the Applicant’s other 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.
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 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

.............................[SGD]........................................
Associate
Dated: 2 April 2019

Date of hearing: 13 March 2019

Applicant: By phone

Advocate for the Respondent: Mr Andrew Summers

Solicitors for the Respondent: Department of Human Services

[2019] AATA 615

2 April 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	13 March 2019
Applicant:	By phone
Advocate for the Respondent:	Mr Andrew Summers
Solicitors for the Respondent:	Department of Human Services