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

[2022] AATA 2892

McDonald and Secretary, Department of Social Services (Social services second review) [2022] AATA 2892 (7 September 2022)

Division:GENERAL DIVISION

File Number:2021/9364            

Re:Robert McDonald  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

Decision

Tribunal:Member D Mitchell

Date:7 September 2022

Place:Brisbane

The decision under review is affirmed.

....................[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

7 September 2022

Introduction

1. On 16 February 2021, Mr Robert McDonald (the Applicant) lodged a claim for Disability Support Pension (DSP).[1] On the Applicant’s claim for DSP form, he listed his disabilities or medical conditions that significantly affect his ability to work to include chronic pain secondary to right inguinal hernia repair, epilepsy, left inguinal hernia awaiting repair, right knee meniscal tear awaiting repair.[2]  

   [1]     Exhibit 1, T Documents, T21, pages 229-258, Claim for Disability Support Pension.

   [2]     Exhibit 1, T Documents , T21, page 253, Claim for Disability Support Pension.

2. The Applicant’s claim was rejected on 27 March 2021[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.

   [3]     Exhibit 1, T Documents, T33, pages 337-338, Centrelink Notice: Rejection of DSP Claim.

3. The Applicant sought review of that decision and, on 17 August 2021, an Authorised Review Officer (ARO) affirmed the decision.[4] The ARO found that the Applicant’s: [5]

   (a)epilepsy condition was fully diagnosed, fully treated and fully stabilised and could be assigned an impairment rating of 0 points under Table 15 of the Impairment Tables;

   (b)bilateral inguinal hernia and lower limb conditions were fully diagnosed but not fully treated and fully stabilised.

   [4]     Exhibit 1, T Documents, T29, pages 276-282, Authorised Review Officer Decision and Notes.

   [5]     Exhibit 1, T Documents, T34, pages 277-278, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD). On 29 October 2021, the SSCSD affirmed the decision to refuse his claim for DSP.[6] The SSCSD found that the Applicant’s:

   (a)epilepsy condition was fully diagnosed, fully treated and fully stabilised and could be assigned an impairment rating of 5 points under Table 15 of the Impairment Tables;

   (b)bilateral inguinal hernia, lower limb and thyroid conditions were fully diagnosed but not fully treated and fully stabilised; and

   (c)mental health condition was not fully diagnosed, fully treated and fully stabilised.[7]

   [6]     Exhibit 1, T Documents, T2, pages 5-15, Decision of the SSCSD.

   [7]     Exhibit 1, T Documents, T2, pages 9-14, Decision of the SSCSD

5. 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 2 December 2021.[8]

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

6. On 24 August 2022, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

7. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.

   The Law

8. 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). Following is a summary of the key requirements which relate to the Applicant’s application.

9. Section 94 of the Act prescribes the criteria that must be met in order 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;[9]

   2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[10] and

   3.does the Applicant have a continuing inability to work?[11]

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

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

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

10. Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[12]

    [12]    Section 6(3)(a) of the Determination.

11. The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[13] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.

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

12. 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 is planned in the next two years.[14]

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

13. A condition is considered to be fully stabilised if:[15]

    (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.

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

14. 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.[16]

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

15. 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.[17] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[18]

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

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

16. 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 (POS); and

    (b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; 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 POS within the next 2 years.

17. A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[19]

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

18. 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.[20]

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

19. 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 (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[21]

    [21]    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

20. The Relevant Period in this matter commenced on 16 February 2021, being the date the Applicant lodged his claim for DSP and ended 13 weeks later on 18 May 2021. 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

21. 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.[22] The Respondent considers the Applicant’s impairments, for the purposes of the claim for DSP in question, consist of epilepsy,[23] lower limb condition,[24] inguinal hernia[25] and mental health[26] conditions.

    [22]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 38.

    [23]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraphs 39-43.

    [24]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9, paragraphs 44-46.

    [25]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 47-52.

    [26]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 53-56.

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

    1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so

    2.did the Applicant have a continuing inability to work?

    consideration

    Did the Applicant’s conditions attract 20 points or more under the impairment Tables – section 94(1)(b) of the Act?

23. At the Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was open with his answers to the questions he was asked and was forthcoming in providing his evidence. The Tribunal accepts that the Applicant’s bilateral inguinal hernia and lower limb conditions cause him pain, limit his mobility and affect his ability to undertake daily activities.

    Epilepsy Condition

24. The evidence before the Tribunal indicates that in June 2019, the Applicant had a grand mal seizure while driving his car and that his epilepsy condition has been treated with mediation since.[27] The Respondent contended that during the Relevant Period, the Applicant’s epilepsy condition was fully diagnosed, fully treated and fully stabilised and could be assigned zero points under Table 15 of the Impairment Tables. The Respondent made the following submissions in support of their contention:[28]

    [27]    Exhibit 1, T Documents, T8, pages 194-196, Ballina District Hospital Discharge Summary; T18, pages 219-220, Verification of Medical condition form by Dr Peter Silberberg and Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachments B and D.

    [28]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraphs 39-43.

    (a)The letter dated 7 June 2019 from Dr Frank Schultheiss noting the applicant required “an EEG and possible medication for a witnessed grand mal while driving his car.” (T10, p198).

    (b)The medical certificate dated 8 January 2020 by Dr Peter Silberberg diagnosing the Applicant with “seizures” (T13, p214).

    (c)In his verification of medical conditions dated 21 October 2020, Dr Peter Silberberg reported that the Applicant’s seizure/epilepsy was “on medication and under control. Cannot have commercial D.L [driver’s license] for
    10 years.” (T18, 220).

    (d)In the Job Capacity Assessment Report dated 15 March 2021, the assessor reported after a face to face assessment with the Applicant that “This condition is considered fully diagnosed, treated and stabilised as discussed with Contributing Assessor. [The Applicant] is not managed by a neurologist, however he has not had seizures since 2019 and the condition is therefore considered stable.” (T24, p263).

    (e)In the Job Capacity Assessment Report dated 15 March 2021 the assessor reported after a face to face assessment with the Applicant that “[the Applicant] reported he had two seizures, 10 days apart, both in 2019, and has not had any further seizures. He stated he is not permitted to drive trucks or operate machinery, however he is permitted to drive a car. [The Applicant] does not meet the criteria for 5 points on Table 15 as he has not experienced any seizures since 2019.” (T24, 265).

    (f)In the decision of the AAT1, it was found that “[the Applicnat] had suffered two seizures across a 28-month period since his first seizure on 4 June 2019, although the event the night prior to the hearing may not have been a seizure... [the Applicant] was able to perform his usual acts of daily living between seizures. He was not able to hold a commercial driver’s licence for ten years, but retained his personal driver’s licence.” (T2, 10)

25. At the Hearing, in relation to his epilepsy condition, the Applicant told the Tribunal that:

    ·He will have this condition for the rest of his life and will be on medication for it forever.

    ·He had two seizures in 2019, the initial seizure that led to the motor vehicle accident and the other one was when he was being driven home from hospital after that accident and his friend had to take him back to hospital.

    ·He takes his medication every morning and night so that he is comfortable driving.

    ·His epilepsy have resulted in him experiencing memory loss, hot sweats, cold chills and headaches and generally just feel “crook”.

    ·He had a seizure about 12 months ago at a bus stop. He was with a friend and had a seizure and smashed his knee and head and was taken to hospital.

    ·He was not able to locate any medical evidence in relation to that seizure.

    ·He agrees that with his medication, his epilepsy is well controlled.

    ·His doctor wants to change his medication as the current one is resulting in loss of memory.

26. Based on the evidence before it, the Tribunal accepts that during the Relevant Period, the Applicant’s epilepsy condition was fully diagnosed, fully treated and fully stabilised and can be assigned an impairment rating under Table 15 of the Impairment Tables. 

27. The Tribunal notes that Table 15 of the Impairment Tables deals with functional impairments resulting due to involuntary loss of consciousness or an altered state of consciousness. Table 15 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[29]

    [29]    Impairment Table 15 – Functions of Consciousness, Part 3 of the Determination. 

Points

Descriptors

0

There is no functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)       The person does not experience loss of consciousness or an altered state of consciousness during waking hours when occupied with a task or activity.

5

There is a mild functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)       The person:

(a)       either:

(i)        has rare episodes of involuntary loss of consciousness, which:

(A)       occur no more than twice per year; and

(B)       do not usually require hospitalisation; or

(ii)       has episodes of altered state of consciousness, which:

(A)       occur no more than twice per year; and

(B)       do not usually requiring hospitalisation; and

(b)       is able to perform most activities of daily living between episodes; and

(c)       may have restrictions on a driver’s licence due to the medical condition.

10

There is a moderate functional impact from loss of consciousness or altered state of consciousness during waking hours when occupied with a task or activity.

(1)       The person:

(a)       either:

(i)        has episodes of involuntary loss of consciousness:

(A)       which occur more than twice each year but not every month; and

(B)       which require the person to receive first aid measures and occasionally emergency medication or hospitalisation; or

(ii)       has episodes of involuntary altered state of consciousness:

(A)       which occur at least once per month; and

(B)       which are less than 30 minutes in duration; and

(C)       during which the person’s functional abilities are affected (e.g. the person remains standing or sitting but is unaware of their surroundings or actions during the episode); and

(b)       is able to perform many activities of daily living between episodes; and

(c)       is unlikely to be granted a driver’s licence and may have other safety-related restrictions on activities; and

(d)       is not able to attend work, education or training activities on a full‑time basis and is restricted due to safety issues in the work‑related activities that they can undertake.

1. While the Applicant told the Tribunal that he experienced a seizure at a bus stop about a year ago, which would equate to late August 2021 and had to be hospitalised, he told the SSCSD that his second or most recent seizure occurred the night before the SSCSD hearing, being 28 October 2021. He told the SSCSD that on that occasion, he was taken to hospital by ambulance but left the hospital the morning of the hearing and that his friend had said he was lying still and not blinking.[30] Even if the Applicant has his timing of events that occurred in 2021 mixed up, the account of the circumstances around the event given to this Tribunal and the SSCSD are very different. There is no corroborating evidence before the Tribunal that the Applicant has experienced a seizure since 2019.

   [30]    Exhibit 1, T Documents, T2, page 8, paragraph 21(a), Decision of the SSCSD.

2. The Tribunal considers that based on the Applicant’s self-reporting of symptoms alone, he does not meet the 10 point descriptor under Table 15 of the Impairment Tables as he has been granted a driver’s licence and there is no evidence that he experiences episodes of involuntary loss of consciousness more than twice a year or episodes of involuntary altered state of consciousness that occur at least once per month.

1. Further, the Tribunal considers that based on the Applicant’s self-reporting of symptoms alone, he does not meet the 5 point descriptor under Table 15 of the Impairment Tables as his evidence is that each of his episodes of involuntary loss of or altered state of consciousness has always required hospitalisation.

2. In a letter dated 16 May 2022, Dr Peter Silberberg, general practitioner, provided that the onset of the Applicant’s epilepsy was August 2019, that he was taking daily medication to stop further seizures and that as a result of the diagnosis, he was unable to hold a commercial licence for 10 years. Dr Silberberg opined that as of 16 May 2022, the Applicant’s epilepsy was irreversible, would not get better in the following 2 years, that there was no treatment that would change this and that the resulting functional impairment was moderate and should be assigned 10 impairment points.[31]

   [31]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

3. While the Tribunal acknowledges the opinion provided by Dr Silberberg in his letter dated 16 May 2022, the letter is of no assistance in the present matter. Dr Silberberg indicated as of that date, the Applicant’s epilepsy condition was irreversible and that no further treatment would be of assistance, that view does not relate to the Relevant Period. Further, Dr Silberberg has not provided any information in relation to how he formed the view that this condition resulted in the Applicant having a moderate functional impairment.

4. Based on the evidence before it, the Tribunal finds that the Applicant’s epilepsy condition cannot be assigned more than 0 points on Table 15 of the Impairment Tables. 

   Bilateral inguinal hernia condition

5. In a Centrelink medical certificate dated 27 July 2020, the Applicant’s general practitioner, Dr Peter Silberberg diagnosed the Applicant with bilateral inguinal hernia. The diagnosis was confirmed in a medical certificate dated 19 October 2020. Consequently, the Tribunal finds that the Applicant’s bilateral inguinal hernia condition was fully diagnosed at the Relevant Period. This point is not in contention.[32] The issue arises as to whether the condition was fully treated and fully stabilised during the Relevant Period.

   [32]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 47.

6. The Respondent contended that the Applicant’s bilateral inguinal hernia was not fully treated and fully stabilised in the Relevant Period in circumstances where the Applicant was awaiting surgical opinion and potentially, an operative repair during the Relevant Period.[33]  The Respondent provided:[34]

   48.…. The Secretary relies on the following evidence in support of that contention:

   (a)In his medical certificate dated 21 October 2020, Dr Peter Silberberg reported that the current and planned treatment for this condition was “await left side repair” (T18, 220);

   (b)In the Employment Services Assessment Report dated 17 November 2020, the assessor reported that the Applicant’s treatment was “2 x surgeries (most recent 3 months ago). Future surgery pending- on waiting list.” (T19, 221);

   (c)In the letter from Dr Peter Silberberg dated 15 February 2021, he reported that the Applicant was “Chronic pain in right inguinal region after mesh repair for hernia. Awaiting inguinal hernia repair for left side” (T20, 227);

   (d)In the Job Capacity Assessment Report dated 26 March 2021, the assessor reported that “[the Applicant] reported he sustained an injury to the surgical site after surgery and had to undergo a second operation. He stated mesh, gauze, staples and stitches were inserted. He stated he is not sure if the gauze has become undone and has an appointment to see his specialist. He stated he has bladder damage from the hernia and has an appointment to see a urological surgeon for further investigation. He believes further surgery may be necessary.” (T24, 262).

   [33]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraph 48-51.

   [34]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 10, paragraph 48.

7. At the Hearing, in relation to his bilateral inguinal hernia condition, the Applicant told the Tribunal that:

   ·He had surgery on his right side hernia and then two months later, it burst and they put mesh in.

   ·The mesh was sewn into his abdominal muscle and moves and gives sharp pains at any time, regardless of whether he is doing something or not. 

   ·The pain is so bad that he forgets what he was doing.

   ·There is nothing that can be done for the right side hernia pain, it is 24/7 and the only thing that relieves it is to lie down flat. However, he can only do that for 30 minutes at a time which make it difficult to get much sleep.

   ·He does not take pain medication as it does not work and neither does sleeping tablets. The pain is sharp and goes straight to his head.

   ·He has been told not to exercise, use stairs or lift anything heavy.

   ·His left side hernia causes a dull pain but not a sharp pain, there is a lump there and he cannot lift anything or blood comes out.

   ·No medication will help due to his epilepsy medication and he is awaiting further specialist review for his left side and maybe they will look at and fix his right side as well.

   ·He was not sure that there was any medical evidence before the Tribunal that said there was an issue with pain medication and his epilepsy medication.

   ·Sharp pain cannot be helped by medication.

   ·There is no point in engaging in a pain clinic until all further surgeries are done, he has 4 hospitals and 8 surgeons all shaking their heads as to why he has not been granted DSP.

8. In a letter dated 16 May 2022, Dr Silberberg provided that the Applicant’s “chronic pain in right inguinal region after mesh repair for hernia (2017)” was a post-operative complication that will not improve, had been surgically reviewed and no further treatment had been recommended. Dr Silberberg opined that as of 16 May 2022, the condition was irreversible, would not get better in the following 2 years, that there was no treatment that would change this and that the resulting functional impairment was moderate and should be assigned 10 impairment points.[35]

   [35]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

9. In the same letter, Dr Silberberg provided that the Applicant was “awaiting inguinal hernia repair for left side – Dr Sally Butchers – no date for operation.” Dr Silberberg opined that the condition was likely to improve post operation and that the resulting functional impairment was moderate.[36]

   [36]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

10. While the Tribunal acknowledges the opinion provided by Dr Silberberg in his letter dated 16 May 2022, the letter is of no assistance in the present matter. Dr Silberberg indicated that as of that date, the Applicant continued to wait for surgery in relation to his left side inguinal hernia and that his pain relating to his right side inguinal hernia that resulted from treatment was irreversible, that view does not relate to the Relevant Period. Further, Dr Silberberg has not provided any information in relation to the past or present treatment in relation to the management of the pain suffered by the Applicant in relation to his bilateral inguinal hernia condition, particularly his right side inguinal hernia or how he formed the view that this condition resulted in the Applicant having a moderate functional impairment.

11. Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s bilateral inguinal hernia condition was fully diagnosed, however was not fully treated and fully stabilised as he was still awaiting surgical review and possibly intervention. Further, the Applicant gave evidence that he had not and would not engage with any pain management in relation to this condition and would not do so until all of his surgeries were completed.

12. Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s bilateral inguinal hernia condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Lower limb condition

13. In the evidence before the Tribunal, the Applicant’s general practitioners diagnosed him in March 2017[37] and February 2021[38] respectively with a “pre patella bursitis” and “right meniscal tear in knee”.  Consequently, the Tribunal finds that the Applicant’s lower limb condition was fully diagnosed in the Relevant Period. This point is not in contention.[39]  The issue arises as to whether the condition was fully treated and fully stabilised during the Relevant Period.

    [37]    Exhibit 1, T Documents, T5, page 191, Medical certificate by Dr Frank Schultheiss.

    [38]    Exhibit 1, T Documents, T20, page 227, Letter from Dr Peter Silberberg.

    [39]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 44.

14. The Respondent contended that the Applicant’s lower limb condition was not fully treated and fully stabilised in the Relevant Period. The Respondent submitted that:[40]

    [40]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 45-46.

    45.….. The Secretary relies on the following evidence in support of that contention:

    (a)In his medical certificate dated 21 October 2020, Dr Peter Silberberg reported that the current treatment was “referral” and planned treatment was “surgery” (T18, 220);

    (b)In the Employment Services Assessment Report dated 17 November 2020, the assessor reported that the Applicant’s treatment was “Orthopaedic surgeon in feb for review/treatment options” (T19, 221);

    (c)In the letter from Dr Peter Silberberg dated 15 February 2021, he reported that the Applicant was “awaiting surgical opinion and likely operative repair at LBH [Lismore Base Hospital]” (T20, 227);

    (d)In the Job Capacity Assessment Report dated 26 March 2021, the assessor reported after a face to face assessment with the Applicant that “Dr Silberberg notes awaiting surgical opinion and likely operative repair at Lismore Base Hospital. Dr Silberberg (Verification of Medical Conditions 21/10/2020) notes there is usually a 12 month wait. [The Applicant] stated he has an appointment to see Dr Osgood on 31st March and expects to undergo surgery soon.” (T24, 262); and

    (e)The decision of the AAT1 dated 29 October 2021 noted that “[the Applicant] stated that he underwent repair of the meniscal tear as a laparoscopic procedure three weeks prior to the hearing. He was in the post-operative phase.” (T2, 13).

    46.The Secretary contends that as at the end of the qualification period the Applicant was awaiting surgical opinion and potentially an operative repair, which was confirmed by the Applicant in his evidence to the AAT1. As this further review and surgical treatment was still outstanding the Secretary submits that the Applicant’s knee condition was not fully treated and stabilised as at the end of the qualification period.

15. At the Hearing, in relation to his lower limb condition, the Applicant told the Tribunal that:

    ·He was on the waiting list for a full right knee replacement and that he has been told the wait would be about 12 months.

    ·He saw a specialist earlier this year.

    ·He had surgery in September 2021 and then had a fall which had led to him needing a full knee replacement.

    ·He agreed that during the Relevant Period, he was awaiting treatment for this condition.

    ·There is not much that can be done for the pain as it is not a throbbing pain but a sharp pain – “like a 240 volt zap”.

    ·His right knee condition results in him having trouble bending, lifting, using stairs.

    ·He feels like his knee is going to pop out at any time.

    ·He is able to stand for about an hour if he keeps moving.

    ·He could walk about 2kms and would need a break.

    ·He walks into town to do his mail, which is about 1km and then slowly walks back.

    ·He does not take pain medication because of his epilepsy mediation.

16. In a letter dated 16 May 2022, Dr Silberberg provided that surgical opinion had been completed with regards to the Applicant’s “right meniscal tear in knee and severe osteoarthritis” and that his knee would not improve without a total knee replacement. Dr Silberberg advised that the Applicant had an orthopaedic surgical appointment in April 2022 and was advised to wait for the operation until he could no longer walk. Dr Silberberg opined that as of 16 May 2022, the condition was irreversible, would not get better in the following 2 years because there are long public waitlists for elective joint replacements and the Applicant was not on the waitlist, that there was no further treatment other than a total knee replacement that would change this and that the resulting functional impairment was moderate and should be assigned 10 impairment points.[41]

    [41]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

17. While the Tribunal acknowledges the opinion provided by Dr Silberberg in his letter dated 16 May 2022, the letter is of no assistance in the present matter. Dr Silberberg’s letter disclosed that the Applicant had undergone knee surgery in September 2021 and indicated that further surgical opinion was received by the Applicant in 2022, both being well outside of the Relevant Period. Further, Dr Silberberg has not outlined what the past or present treatment of this condition is to assist the Applicant to continue to mobilise or how he formed the view that this condition resulted in the Applicant having a moderate functional impairment.

18. Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s lower limb condition was fully diagnosed, however was not fully treated and fully stabilised as he was still awaiting surgical intervention, which did not occur until after the Relevant Period. 

19. Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s lower limb condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Thyroid condition

20. In a letter dated 7 June 2019, Dr Frank Schultheiss, general practitioner, provided that the Applicant had been diagnosed with Hashimoto and was put on oroxine in 2018.[42] Outside of that diagnosis, there is limited evidence before the Tribunal in relation to the treatment and functional impact of the Applicant’s thyroid condition.

    [42]    Exhibit 1, T Documents, T10, pages 198-199, Letter form Dr Frank Schultheiss.

21. At the Hearing, in relation to his thyroid condition, the Applicant told the Tribunal that he would have to take medication for this condition for the rest of his life, however with the medication, the condition was well managed.

22. Based on the lack of evidence before it and the evidence provided at the Hearing by the Applicant, the Tribunal finds that during the Relevant Period, the Applicant’s thyroid condition was fully diagnosed, however is unable to determine that it was fully treated or fully stabilised. Even had the Tribunal been satisfied that the Applicant’s thyroid condition was fully treated and fully stabilised during the Relevant Period, there is no evidence before the Tribunal that it was causing a functional impairment.

23. Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s thyroid condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Mental Health Condition

24. In a letter dated 21 June 2021, Dr Silberberg stated that the Applicant had developed depression due to his sudden loss of work, post seizures and motor vehicle accident.[43] In a further letter dated 16 May 2022, Dr Silberberg confirmed his previous diagnosis and advised that the Applicant had been referred for counselling and failed a trial of anti-depressants. Dr Silberberg opined that the Applicant’s depression caused a moderate functional impact on activities involving mental health function and that he did not see the Applicant improving in the foreseeable future given his multiple triggers for low mood including irreversible pain and homelessness.[44]

    [43]    Exhibit 1, T Documents, T26, page 270, Letter from Dr Peter Silberberg.

    [44]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

25. While the Tribunal acknowledges the opinion provided by Dr Silberberg in his letter dated 16 May 2022, the letter is of no assistance in the present matter. Dr Silberberg did not address the Relevant Period and has not outlined what past and present treatment of the Applicant’s depression was or how he formed the view that the condition resulted in a moderate functional impairment.

26. At the Hearing, in relation to his mental health condition, the Applicant told the Tribunal that:

    ·He had been seeing a psychologist every second week for around 12 months after being referred by his general practitioner. He agreed that he started this treatment after the Relevant Period.

    ·He does not take any medication for the condition as it will affect his epilepsy medication.

    ·He has gone from working 69 hours a week to working no hours, is homeless and penniless and is at the doctors all the time.

27. To be considered as a fully diagnosed mental health condition under Table 5 of the Impairment Tables, which relates to Mental Health, it requires that the diagnosis 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).[45]

    [45]    Impairment Table 5 – Functions of Mental Health, Part 3 of the Determination. 

28. The Respondent contended that the Applicant’s mental health conditions was not fully diagnosed, fully treated and fully stabilised during the Relevant Period.[46]

    [46]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 53-56.

29. Based on the evidence before it and in the absence of evidence that the Applicant had received a diagnosis from a psychiatrist or clinical psychologist during the Relevant Period, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was not fully diagnosed. Further, there is limited evidence before the Tribunal in relation to treatment received by the Applicant during the Relevant Period and as such, the Tribunal finds that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period. The Tribunal notes that the letter of Dr Silberberg dated

    
    

    16 May 2022 does not assist the Applicant in this regard.[47]

    [47]    Exhibit 3, Letter of Dr Silberberg dated 16 May 2022.

30. Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?

31. As the Tribunal has found that the Applicant does not have a total of 20 impairment points either on one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether he met the requirements of section 94(1)(c) of the Act.

    Conclusion

32. The Tribunal is limited to considering the Applicant’s conditions during the Relevant Period and the supporting evidence as it relates to that Relevant Period. It may be that the Applicant’s conditions have worsened or have been treated and stabilised since the window of time that is currently before the Tribunal, being 16 February 2021 to
    18 May 2021. The Tribunal notes that it is open to the Applicant to test his eligibility for DSP at any time.

1. Based on the evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

2. Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s:

   (a)epilepsy condition was fully diagnosed, fully treated and fully stabilised and could be assigned zero points under Table 15 of the Impairment Table;

   (b)bilateral inguinal hernia, lower limb and thyroid conditions were fully diagnosed; however, were not fully treated and fully stabilised and, therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables; and

   (c)mental health condition was not fully diagnosed, fully treated and fully stabilised and, therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.

3. The Tribunal finds that, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

4. Accordingly, the decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 7 September 2022

Date of Hearing:	24 August 2022
Applicant:	By phone
Solicitors for the Respondent:	Ms TinYan Wong Services Australia