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

McDougall and Secretary, Department of Social Services (Social services second review) [2018] AATA 756 (6 April 2018)
Division:GENERAL DIVISION
File Number: 2017/2045
Re:Sheena McDougall
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P E Nolan
Date:6 April 2018
Place:Brisbane

The decision under review is affirmed.
...........................[sgd].....................................
Senior Member P E Nolan
CATCHWORDS
SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised during relevant period – whether Applicant had 20 impairment points – upper limb conditions – carpal tunnel syndrome – tennis elbow – shoulder condition – trigger thumb – osteoarthritis of thumb and the hands – lower limb condition – spinal condition – lower limb condition – other conditions – decision affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
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
REASONS FOR DECISION
Senior Member P E Nolan
6 April 2018

On 2 June 2016, Sheena McDougall (the “Applicant”) applied for a Disability Support Pension (“DSP”).[1] In the portion of the DSP claim form where the Applicant was to list her disabilities, illnesses or injuries, she wrote:
1OA spine with referred leg pain
2recurrent [b]ursitis [of] left shoulder
3recurrent [c]arpal tunnel syndrome
4chronic persistent [b]ack pain
5chronic persistent shoulder pain
6hand [p]ain/poor grip
7[b]ursitis in both left and right hips.[2]
[1] Exhibit 1, T Documents, T32, p 125-154, DSP claim form, dated 2 June 2016.
[2] Exhibit 1, T Documents, T32, p 150, DSP claim form, dated 2 June 2016.
The central issue for the Tribunal to determine is whether the Applicant qualified for DSP at the date of her claim, 2 June 2016, or within 13 weeks thereafter, being up until

1 September 2016 (“the Relevant Period”).
HISTORY OF THE MATTER
The Applicant lodged an application for DSP on 2 June 2016.[3] On 28 July 2016 the Applicant’s claim was rejected.[4]
[3] Exhibit 1, T Documents, T32, p 125-154, DSP claim form, dated 2 June 2016.
[4] Exhibit 1, T Documents, T40, pages 171-2, Rejection of DSP, dated 28 July 2016.
The Applicant sought review by a Centrelink authorised review officer (“ARO”). On

9 November 2016, the ARO affirmed the rejection decision.[5] The Applicant subsequently sought review by the Administrative Appeals Tribunal’s Social Security and Child Support Division (“SSCSD”). On 13 March 2017, the decision to reject the application was again affirmed.[6]
[5] Exhibit 1, T Documents, T46, page 189-195, ARO decision, dated 9 November 2016.
[6] Exhibit 1, T Documents, T2, pages 3-14, SSCSD decision, dated 13 March 2017.
On 10 April 2017, the Applicant lodged an application for review of that decision in the General Division of this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, page 1, Application for Review, dated 10 April 2017.
ISSUES FOR THE TRIBUNAL
The issues for me to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric impairment which was fully diagnosed, treated and stabilised;
(b)whether, at the relevant time, the Applicant’s conditions warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a Program of Support; and
(d)whether the Applicant has a continuing inability to work.
Before determining the above, it is convenient to set out the relevant legislative framework.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that:
·the Applicant has a physical, intellectual or psychiatric impairment;
·the Applicant’s impairment is of 20 points or more under the Impairment Tables; and
·the Applicant has a continuing inability to work.
The Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim (in this case, 2 June 2016). There is, however, an exception where the 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.[8] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 2 June 2016 to 1 September 2016. The Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the Relevant Period.[9]
[8] See ss 3, 4(1), 41 and 42, Schedule 2, Part 2 of the Administration Act; see Fanning and Secretary,
Department of Social Services [2014] AATA 447 at [33].
[9] See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous
Affairs [2012] AATA 922 at [34].
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”).[10] The Tables are function based rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[11] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[12]
[10] See s 26(1) of the Act.
[11] See s 5(2) of the Determination.
[12] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is “permanent” and the impairment that results is more likely than not, in light of the available evidence, to persist for more than two years.[13] In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, to persist for more than two years.[14]
[13] See s 6(3) of the Determination.
[14] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed and fully treated, the following facts are to be considered:
whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[15]
[15] See s 6(5) of the Determination.
A condition is “fully stabilised” if:
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:
(c)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
(d)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[16]
[16] See s 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.[17] An Impairment Rating can only be assigned in accordance with the rating points in each Table.
[17] See s 6(7) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant has impairments for the purposes of section 94(1)(a) of the Act during the Relevant Period.[18] Based on the medical evidence before me, I am satisfied that the Respondent’s concession is appropriate.
[18] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017.
I will now consider whether the Applicant’s impairments can attract impairment points under the Tables.
Upper limb conditions
The Respondent concedes that the Applicant was fully diagnosed with the following upper limb conditions during the Relevant Period:
·Osteoarthritis of the right thumb and hand;
·Carpal tunnel syndrome in the right hand;
·Right tennis elbow;
·Bursitis in the left shoulder;
·Triggering in left thumb; and
·Osteoarthritis of the left hand.[19]
At the Tribunal’s hearing the Respondent accepted that the osteoarthritis of the Applicant’s hands was fully diagnosed, fully stabilised and fully treated during the Relevant Period.[20] However, the Respondent contends that the remaining upper limb conditions were not fully treated and fully stabilised during the Relevant Period.[21] Accordingly, the Respondent concludes that those upper limb conditions should not be assigned an Impairment Rating under Table 2.
[19] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [32].
[20] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [31].
[21] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [33]-[37].
(a) Carpal tunnel syndrome
Based on the medical evidence, I am satisfied that the Applicant’s carpal tunnel syndrome was fully diagnosed, however, was not fully treated and fully stabilised during the Relevant Period. Outside the Relevant Period Dr Ndhlovu opined that the condition was:
·expected to impact on the Applicant’s ability to function from 3-24 months;[22] and
·likely to show considerable improvement within 2 years.[23]
[22]Exhibit 1, T-documents, T15, page 97, Medical report of Dr Ndhlovu, dated 15 March 2015.
[23] Exhibit 1, T-documents, T23, page 114, Medical report of Dr Ndhlovu, dated 4 Feburary 2016; Exhibit
1, T-documents, T27, page 118, Medical report of Dr Ndhlovu, dated 8 May 2016.
Further the Applicant reported to Dr O’Gorman on 15 February 2016 that she was “happy with her carpal tunnel today and has no concerns.”[24] The medical report of Dr Armstrong stated that the Applicant’s condition required further assessment and treatment was planned, specifically a referral to an orthopaedic clinic. Accordingly, Dr Armstrong concluded that was not fully treated or stabilised.[25]
[24] Exhibit 1, T-documents, T24, page 115, Medical report of Dr O’Gorman dated 15 Feburary 2016.
[25] Exhibit 3, Confidential review of the Health Professional Advisory Unit, dated 8 August 2017 (it is
noted that Dr Armstrong’s report directly referenced medical information that related to the Relevant Period).
(b) Right tennis elbow
Based on the following medical evidence, I am satisfied that the Applicant’s right tennis elbow was fully diagnosed, however, was not fully treated or fully stabilised during the Relevant Period:
(a)Dr Ndhlovu’s medical report dated 15 March 2015[26];
(b)Dr Houston’s medical report dated 1 June 2015[27]; and
(c)Dr Armstrong’s medical report dated 8 August 2017[28].
[26]          Exhibit 1, T-documents, T15, page 101, Medical report of Dr Ndhlovu, dated 15 March 2015.
[27]          Exhibit 1, T-documents, T17, page 108, Medical report of Dr Anthony Houston, dated 1 June 2015.
[28]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 10,
dated 8 August 2017.
Dr Ndhlovu’s and Dr Houston’s reports do not provide treatment or rehabilitation plans for the Applicant’s right tennis elbow condition.[29] The Applicant reported that she wears a brace for the condition and this is confirmed by Dr Ndhlovu.[30] Dr Armstrong has stated in her report that the evidence-based treatment for this condition is usually physical therapy and that the condition cannot be considered fully treated and stabilised during the Relevant Period.[31] Based on the above medical evidence, I find that the Applicant’s right tennis elbow could not be said to have been fully treated and stabilised during the Relevant Period.
[29]          Exhibit 1, T-documents, T15, page 101, Medical report of Dr Ndhlovu, dated 15 March 2015; Exhibit
1, T-documents, T17, page 108, Medical Report of Dr Anthony Houston dated 1 June 2015.
[30]          Exhibit 1, T-documents, T15, page 101, Medical report of Dr Ndhlovu, dated 15 March 2015.
[31]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 10,
dated 8 August 2017.
(c) Bursitis in the left shoulder
Based on the following medical evidence, I am satisfied that the Applicant’s left shoulder condition was fully diagnosed, however, was not fully treated or fully stabilised during the Relevant Period:
(d)Dr Alghamry’s medical report dated 17 June 2016[32]; and
(e)Dr Armstrong’s medical report dated 8 August 2017.
[32] Exhibit 1, T-documents, T33, pages155-157, Medical report of Dr Alghamry, dated 17 June 2016.
The medical report from Dr Alghamry provided the Applicant with a recommendation to obtain a referral for physiotherapy at Caboolture Hospital to address her left shoulder condition.[33] When the Applicant was assessed by the JCA she reported that her general practitioner disagreed with Dr Alghamry’s recommendation and she had not arranged to see a physiotherapist or seek any further intervention for her left shoulder condition.[34] The Applicant reported that she had undergone physiotherapy sessions in 2016 and had cortisone injections in 2013. In Dr Armstrong’s report she refers to a telephone conversation she had with Dr Ndhlovu where he stated that he did not think that further physiotherapy or cortisone injections would assist the Applicant.[35] Dr Armstrong has stated in her report that physiotherapy is the first-line treatment for shoulder conditions and that the condition cannot be considered fully treated and stabilised during the Relevant Period.[36] Based on the above medical evidence, I find that the Applicant’s shoulder condition could not be said to have been fully treated and stabilised during the Relevant Period.
[33]          Exhibit 1, T-documents, T33, page 157, Medical report of Dr Alghamry, dated 17 June 2016.
[34]          Exhibit 1, T-documents, T39, page 163-170, Job Capacity Assessment Report, dated 17 June 2016.
[35]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 8,
dated 8 August 2017.
[36]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 10,
dated 8 August 2017.
(d) Left trigger thumb
Based on the following medical evidence, I am satisfied that the Applicant’s left trigger thumb condition was fully diagnosed, however, was not fully treated or fully stabilised during the Relevant Period:
(a)Dr Ndhlovu’s medical certificate dated 13 July 2016; and
(b)Dr Armstrong’s medical report dated 8 August 2017.
A medical certificate from Dr Ndhlovu stated that the appropriate treatment for the Applicant’s left trigger thumb condition was an orthopaedic referral.[37] The Applicant reported that she was referred to a surgeon. When the Applicant was assessed by the JCA she reported that she was awaiting surgery for the left trigger thumb condition, she also reported this to the ARO.[38] Dr Armstrong has stated in her report that evidence-based treatment for left trigger thumb condition includes surgical intervention if symptoms are persistent.[39] Based on the above medical evidence, I find that the Applicant’s left trigger thumb condition could not be said to have been fully treated and stabilised during the Relevant Period.
[37]          Exhibit 1, T-documents, T36, page 160, Medical certificate of Dr Ndhlovu, dated 13 July 2016.
[38]          Exhibit 1, T-documents, T39, page 163-170, Job Capacity Assessment Report, dated 17 June 2016;
Exhibit 1, T-documents, T46, page 189-195, Authorised Review Officer decision and notes, dated 9 November 2016.
[39]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 10,
dated 8 August 2017.
(e) Osteoarthritis of the right thumb and hands
At the hearing, the Respondent conceded that the osteoarthritis in the Applicant’s hands was fully diagnosed, fully treated and fully stabilised. Based on the medical evidence before the Tribunal,[40] I am satisfied that this concession is appropriate. This means that the impairment caused by this condition can attract an Impairment Rating. The relevant table is Table 2 – Upper Limb Function. The Respondent contends that the resulting impairment attracts 0 points under Table 2.[41]
[40] Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 10,
dated 8 August 2017.
[41] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [40](g) and
[41].
To be assigned the higher rating of 5 points, the Applicant would need to have demonstrated that during the Relevant Period she had some difficulty with most of the following:
(a)picking up heavier objects;
(b)handling very small objects;
(c)doing up buttons;
(d)reaching up or out to pick up objects.[42]
[42] Determination, Table 2.
At the hearing, the Applicant reported difficulty:
·gripping objects with her hands such as a the steering wheel of a car, but could use a pencil or pen for short periods of time;
·picking up objects, such as jars and bottles;
·using zippers and buttons;
·handling small objects such as coins or money; and
·using a remote control for a television, computer keyboard and computer mouse.
The Applicant’s self-reported symptoms at the hearing are consistent with her evidence before the SSCSD.[43] However, self-reported symptoms alone are insufficient without corroborating medical evidence of the impairment.
[43] Exhibit 1 SSCSD decision
The medical report of Dr Ndhlovu stated that the Applicant had a poor grip and pain in her right hand which limits her use of her right hand including prolonged writing. The medical report of Dr Armstrong concluded that the appropriate Impairment Rating would be 0 impairment points. Dr Armstrong opined that while “[d]escriptors (b)…and (c)…may be met…it is not likely that mild osteoarthritis of the hands would cause difficulties with descriptors (a)…and (d).”[44]
[44] Exhibit 3, page 11.
On the basis of the medical evidence before me, I am not satisfied that the Applicant’s condition meets the descriptors for a mild functional impact. I have assigned the Applicant’s upper limb condition an Impairment Rating of 0 points.
Lower limb conditions

The Respondent accepts that the Applicant was fully diagnosed with the following lower limb conditions during the Relevant Period:
·Bilateral trochanteric bursitis in the right and left lower limb;
·Osteoarthritis right and left 1^st metatarsophalangeal joint and hallux valgus; and
·Right heel spur and right knee conditions.[45]
The Respondent contends that with the exception of the Applicant’s osteoarthritis of the right toe and bilateral trochanteric bursitis, the Applicant’s lower limb conditions were not fully treated or fully stabilised during the Relevant Period and therefore cannot be assigned an Impairment Rating under the Tables.[46]
(a) Bilateral trochanteric bursitis and Osteoarthritis of right and left metatarsophalangeal joint and hallux valgus
[45] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [42].
[46] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [43]-[47].
The Respondent contends that the Applicant’s bilateral trochanteric bursitis in the left and right limbs was fully diagnosed, fully treated and fully stabilised.[47] Based on the following medical evidence, I am satisfied that this concession is appropriate:
(a)An x-ray report of the Applicant’s left hip dated 11 November 2013;
(b)Dr Briddon’s medical certificate dated 8 February 2014[48];
(c)A letter from Auscare Physio dated 28 August 2013[49]; and
(d)Dr Armstrong’s medical report dated 8 August 2017.[50]
[47]          Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [42]-[43].
[48]          Exhibit 1, T-documents, T13, pages 74-78, DSP Medical Report from Dr Briddon, dated 8 February
2014.
[49]          Exhibit 1, T-documents, T9, page 70, Report from Auscare Physio, dated 28 August 2013.
[50]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, pages 7
and 11-13, dated 8 August 2017.
Based on the following medical evidence, I am satisfied that the Applicant’s osteoarthritis of the right metatarsophalangeal joint and hallux valgus condition was fully diagnosed, however was not fully treated or fully stabilised during the Relevant Period:
(a)Dr Houston’s operation surgeon report dated 18 August 2015[51];
(b)Dr Houston’s medical certificate dated 9 November 2015[52];
(c)Dr Alghamry’s report[53];
(d)Dr O’Gorman’s medical report dated 15 February 2016[54]; and
(e)Dr Armstrong’s medical report dated 8 August 2017.[55]
[51]          Exhibit 1, T-documents, T19, page 110, Operation surgeon report of Dr Houston, dated 18 August
2015.
[52]          Exhibit 1, T-documents, T21, page 112, Medical certificate of Dr Houston, dated 9 November 2015.
[53]          Exhibit 1, T Documents, T33, page 156, Medical report of Dr Alaa Alghamry, dated 17 June 2016.
[54]          Exhibit 1, T-documents, T24, page 115, Medical report of Dr O’Gorman, dated 15 February 2016.
[55]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 11,
dated 8 August 2017.
Dr Houston completed an operation surgeon report after performing a right hallux MTP joint fusion on the Applicant.[56] In Dr Houston’s medical certificate for the Applicant, he states that the pain symptoms from this condition would affect the Applicant for approximately 13 to 24 months.[57] In a medical report from Dr O’Gorman the Applicant stated that she was experiencing pain after her right hallux MTP joint fusion, but that she did not want more surgery to remove the plate at this time.[58] Dr Armstrong has stated in her report that the condition could be considered fully treated and stabilised during the Relevant Period as recovery from the surgery should not take more than 6 months.[59]
[56]          Exhibit 1, T-documents, T19, page 110, Operation surgeon report of Dr Houston, dated 18 August
2015.
[57]          Exhibit 1, T-documents, T21, page 112, Medical certificate of Dr Houston, dated 9 November 2015.
[58]          Exhibit 1, T-documents, T24, page 115, Medical report of Dr O’Gorman, dated 15 February 2016.
[59]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 11-
12, dated 8 August 2017.
This means that the impairment caused by these conditions can attract an Impairment Rating. The relevant table is Table 3 – Lower Limb Function. The Respondent contends that the resulting impairment attracts 5 points under Table 3.[60]
[60] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [47].
To be assigned the higher rating of 10 points, the Applicant would need to have demonstrated that during the Relevant Period she had some difficulty with at least one of the following:
(a)walking far outside of her home;
(b)using stairs without assistance; and
(c)standing for more than 5 minutes.[61]
[61] Determination, Table 3.
At the hearing, the Applicant reported the following:
(a)she catches public transport using a walker from outside her house to go to the local shopping centre;
(b)to see her GP she would get driven there by a friend; and
(c)if she needs to sit for long periods of time it can cause her to fidget
However, self-reported symptoms alone are insufficient without corroborating medical evidence of the impairment. When the Applicant was assessed by the JCA she reported that she was reliant on public transport. The Applicant also reported that she had a reduced standing tolerance of 10 minutes, reduced sitting tolerance and that she has a walking stick and walker at home.[62] The JCA also noted that the Applicant could sit for the duration of the interview, which was 65 minutes in duration, but that she stated that she was experiencing frequent pain responses and position adjustments.[63] The JCA also observed that the Applicant mobilised independently to and from the interview and did not require an aid device.[64]
[62]          Exhibit 1, T-documents, T-39, page 165 and 170, Job Capacity Assessment Report, dated 27 July
2016.
[63]          Exhibit 1, T-documents, T-39, page 167, Job Capacity Assessment Report, dated 27 July 2016.
[64]          Exhibit 1, T-documents, T-39, page 165, Job Capacity Assessment Report, dated 27 July 2016.
On the basis of the medical evidence before me, I am not satisfied that the Applicant’s condition meets the descriptors for a mild functional impact.[65] In my view the Applicant’s upper limb condition can be assigned an Impairment Rating of 5 points.
[65] Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, pages 7
and 12-13, dated 8 August 2017.
(b) Osteoarthritis of left metatarsophalangeal joint and hallux valgus
Based on the following medical evidence, I am satisfied that the Applicant’s left metatarsophalangeal joint and hallux valgus condition was fully diagnosed, however, was not fully treated or fully stabilised during the Relevant Period:
(a)Confirmation of referral from Redcliffe Hospital dated 22 July 2016[66];
(b)Dr Ndhlovu’s medical report dated 15 August 2016[67];
(c)Dr Ndhlovu’s medical report dated 5 October 2016[68]; and
(d)Dr Armstrong’s medical report dated 8 August 2017.[69]
[66]          Exhibit 1, T-documents, T38, page 162, Letter from Redcliffe Hospital to Dr Ndhlovu, dated 22 July
2016.
[67]          Exhibit 1, T-documents, T41, pages 173-174, Medical report of Dr Ndhlovu, dated 15 August 2016.
[68]          Exhibit 1, T-documents, T45, pages 187-188, Medical report of Dr Ndhlovu, dated 5 October 2016.
[69]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 11,
dated 8 August 2017.
Dr Ndhlovu completed two medical reports that stated that the Applicant was awaiting surgery for her left toe.[70] Dr Ndhlovu also received confirmation of a referral from Redcliffe Hospital’s Orthopaedic Clinic in July 2016.[71] Dr Armstrong has stated in her report that, in the absence of the surgery, the condition cannot be considered fully treated and stabilised during the Relevant Period.[72] Based on the above medical evidence, I find that the Applicant’s right and left metatarsophalangeal joint and hallux valgus conditions could not be said to have been fully treated and stabilised during the Relevant Period and therefore cannot be assigned an Impairment Rating under the Tables.
[70]          Exhibit 1, T-documents, T41, page 173, Medical report of Dr Ndhlovu, dated 15 August 2016; Exhibit
1, T-documents, T45, page 187, Medical report of Dr Ndhlovu, dated 5 October 2016.
[71]          Exhibit 1, T-documents, T38, page 162, Letter from Redcliffe Hospital to Dr Ndhlovu, dated 22 July
2016.
[72]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 12,
dated 8 August 2017.
(d) Right heel spur and knee conditions
Based on the following medical evidence, I am satisfied that the Applicant’s right heel spur and knee conditions were fully diagnosed, however, were not fully treated or fully stabilised during the Relevant Period:
(a)Dr Briddon’s medical report dated 24 July 2013[73];
(b)A letter from Auscare Physio dated 28 August 2013[74];
(c)An x-ray report of the right knee dated 11 November 2013[75]; and
(d)Dr Armstrong’s medical report dated 8 August 2017.[76]
[73]          Exhibit 1, T-documents, T8, pages 67-69, Team care arrangement of Dr Briddon, dated 24 July 2013.
[74]          Exhibit 1, T-documents, T9, page 70, Report from Auscare Physio, dated 28 August 2013.
[75]          Exhibit 1, T-documents, T10, page 71, X-ray report: left hip and right knee, dated 11 November 2013.
[76]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 12,
dated 8 August 2017.
Dr Briddon completed a ‘Team Care Arrangement’ report that described the Applicant’s knee pain and pain in the Achilles region. An x-ray of the Applicant’s right ankle and tibia was undertaken and examined, Dr Briddon reported that there was no significant abnormality, but a small heel spur was present.[77] Dr Briddon made a referral for physiotherapy. The Applicant attended a physiotherapy appointment and reported only temporary improvement in the pain of her right knee and ankle.[78] Dr Armstrong has stated in her report that, the functional impact of the right heel spur condition is not described and is instead consistent with the osteoarthritis in the Applicant’s right 1^st metatarsophalangeal joint.[79] In regards to the Applicant’s right knee condition, Dr Armstrong has referred to the x-ray of the Applicant’s right knee, she reports that the x-ray showed minimal degenerative changes and that these were consistent solely with age-related changes.[80] Based on the above medical evidence, I find that the Applicant’s right heel spur and right knee conditions could not be said to have been fully treated and stabilised during the Relevant Period, and therefore cannot be assigned an Impairment Rating under the Tables.
[77]          Exhibit 1, T-documents, T8, page 67-69, Team care arrangement of Dr Briddon, dated 24 July 2013.
[78]          Exhibit 1, T-documents, T9, page 70, Report from Auscare Physio, dated 28 August 2013.
[79]          Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 12,
dated 8 August 2017.
[80]          Exhibit 1, T-documents, T10, page 71, X-ray report: left hip and right knee, dated 11 November 2013;
Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 12, dated 8 August 2017.
Spinal condition
The Respondent contends that the Applicant’s spinal condition was not fully diagnosed, fully treated or fully stabilised.[81] Based on Dr Armstrong’s medical report and her discussion of the medical evidence I am satisfied that the Applicant’s spinal condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period, and therefore cannot be assigned an Impairment Rating under the Tables.[82]
[81] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [50].
[82] Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, page 13,
dated 8 August 2017.
Fibromyalgia
The Respondent accepts that the Applicant’s fibromyalgia was fully diagnosed.[83] On the medical evidence before me,[84] I consider that concession to be appropriate.
[83] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [54].
[84] Exhibit 1, T Documents, T33, page 156, Medical report of Dr Alaa Alghamry, dated 17 June 2016.
The Respondent contends that the Applicant’s condition was not fully treated and fully stabilised during the Relevant Period and therefore cannot be assigned an Impairment Rating.[85] Based on Dr Armstrong’s medical report and her discussion of the medical evidence I am satisfied that the Applicant’s fibromyalgia condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period.[86]
[85] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [54].
[86] Exhibit 3, Health Professional Advisory Unit: Confidential Review of Dr Sandra Armstrong, pages 13-
14, dated 8 August 2017.
Other conditions
The Respondent accepts that the Applicant has had or currently has the following conditions:
·Atheromatous plaque in both lower limbs;
·Gastro-oesophageal reflux disease;
·Stress adjustment disorder;
·Gall stone disease; and
·Severe hand dermatitis.[87]
[87] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [65]-[66].
In respect of the Applicant’s gall stone disease and severe hand dermatitis, the Respondent contends that those conditions arose after the Relevant Period.[88]
[88] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [66].
The Respondent contends that the remaining conditions were not fully diagnosed, fully treated or fully stabilised during the Relevant Period.[89]
[89] Respondent’s Statement of Facts, Issues and Contentions, dated 6 November 2017 at [65]
Based on the evidence before the Tribunal, I accept the Respondent’s contentions and do not consider that the conditions outlined above in paragraph 49 can be assigned an Impairment Rating under the Tables.
Conclusion on points
I have found that the Applicant’s upper limb conditions, lower limb conditions, spinal condition and fibromyalgia condition, with the exception of the Applicant’s osteoarthritis of the hands and bilateral trochanteric bursitis, cannot be assigned an Impairment Rating under the relevant Tables. I have found that the Applicant’s upper limb condition, osteoarthritis in the Applicant’s hands, is fully diagnosed, fully treated and fully stabilised and should be assigned an Impairment Rating of 0 points. I have found that the Applicant’s lower limb condition, bilateral trochanteric bursitis, is fully diagnosed, fully treated and fully stabilised and should be assigned an Impairment Rating of 5 points.
Further, I have found that the Applicant’s other listed conditions were not fully diagnosed, fully stabilised and fully treated during the Relevant Period and cannot be assigned an Impairment Rating.
Continuing Inability to Work?
Given that the Applicant’s conditions do not attract an Impairment Rating of 20 points or more during the Relevant Period, it is not necessary for me to consider whether she satisfies the remaining criteria to qualify for the DSP.
CONCLUSION
For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P E Nolan

..........................[sgd]........................................
Associate
Dated: 6 April 2018

Date of hearing: 23 November 2017

Applicant: By Phone

Advocate for the Respondent: Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2018] AATA 756

6 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	23 November 2017
Applicant:	By Phone
Advocate for the Respondent:	Jacky Vetter
Solicitors for the Respondent:	Department of Human Services