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

[2024] AATA 536

McFadzean and Secretary, Department of Social Services (Social services second review) [2024] AATA 536 (27 March 2024)

Division:GENERAL DIVISION

File Number:2023/0923          

Re:Darren McFadzean  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:27 March 2024

Place:Brisbane

The decision under review is affirmed.

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

Member D Mitchell

Catchwords

SOCIAL SECURITY – disability support pension – DSP – whether medical conditions are 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

Gallacher v Secretary, Department of Social Services [2015] FCA 1123

REASONS FOR DECISION

Member D Mitchell

27 March 2024

INTRODUCTION

1. On 4 September 2020, Mr Darren McFadzean (the Applicant) was involved in a workplace accident where he was crushed by a 600kg mechanical slasher. He was admitted to the Intensive Care Unit (ICU) at the Princess Alexandra Hospital with injuries including multi-level spinal fractures, multi-level rib fractures with bilateral haemopneumothoraces, sternal fracture, pneumopericardium, left scapula fracture, haemorrhagic chemosis and bruising to the chest.[1] He was discharged from hospital on 10 October 2020.[2]

   [1]     Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 1-2, paragraph 4.

   [2]     Exhibit 1, T Documents, T8, pages 92-98, Queensland Health Discharge Summary.

2. On 10 May 2022, the Applicant lodged a claim for the Disability Support Pension (DSP).[3] The Applicant’s claim for the DSP, listed his disabilities or medical conditions that significantly affect his ability to work to include “poly trauma ribs fracture sternum fracture pneumothorax.”[4]  

   [3]     Exhibit 1, T Documents, T12, pages 4-19, Claim for Disability Support Pension.

   [4]     Exhibit 1, T Documents, T12, page 106, Claim for Disability Support Pension.

3. On 20 May 2022, the Applicant’s claim was rejected on the basis that he was in receipt of weekly periodic compensation payments of $532.00 per week.[5]

   [5]     Exhibit 1, T Documents, T17, page 118, Rejection of claim for DSP and T24, page 212, Centrelink Document List and file notes.

4. On 25 May 2022, the Applicant requested internal review of that decision, stating that he was no longer in receipt of compensation payments.[6]

   [6]     Exhibit 1, T Documents, T24, page 212, Centrelink Document List and file notes.

5. On 22 August 2022, an Authorised Review Officer (ARO) affirmed the decision.[7] The ARO found that the original decision was incorrect as the Applicant’s periodic payments ceased on 14 May 2022. They, however affirmed the decision not to grant the Applicant’s claim for the DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables. The ARO found that the Applicant’s condition of “fractures and crush injuries” was fully diagnosed, fully treated and fully stabilised and caused impairments attracting 10 points under Table 1 of the Impairment Tables and zero points under Tables 2 and 4 of the Impairment Tables.[8]

   [7]     Exhibit 1, T Documents, T20, pages 132-137, Authorised Review Officer Decision and Notes.

   [8]     Exhibit 1, T Documents, T20, pages 132-137, Authorised Review Officer Decision and Notes.

6. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[9]

   [9]     Exhibit 1, T Documents, T21, pages 138-139, Request for Statement from the SSCSD.

7. On 22 December 2022, the SSCSD affirmed the decision to refuse the Applicant’s claim for the DSP. The SSCSD found that while the immediate medical conditions following the Applicant’s accident had been appropriately treated, the longer-term complications and other conditions causing impairments were not fully diagnosed, fully treated or fully stabilised.[10]

   [10]    Exhibit 1, T Documents, T2, pages 4-19, Decision of the SSCSD.

8. On 14 February 2023, the Applicant made an application for a second-tier review of this matter by the General Division of this Tribunal.[11] The Applicant outlined that he was seeking review of the decision to refuse his claim for the DSP:[12]

   Because they said I didn’t see any specialist after I came out of the hospital which I did and WorkCover was meant to send them to Centrelink back when I first applied for disability pension.

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

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

9. On 19 March 2024, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

10. 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.

    THE LAW

11. The relevant law in assessing a person’s qualification for the 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.

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

    1.does the Applicant have a physical, intellectual or psychiatric impairment;[13]

    2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[14] and

    3.does the Applicant have a continuing inability to work?[15]

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

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

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

13. Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[16]

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

14. The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the 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.[17] 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.

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

15. 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.[18]

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

16. A condition is considered to be fully stabilised if:[19]

    (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.

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

17. 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.[20]

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

18. 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]

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

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

19. 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.

20. 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.[23]

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

21. The Administration Act sets out that qualification for the 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 the DSP is the date the person becomes qualified.[24]

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

22. The Federal Court and the Tribunal 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 the 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.[25]

    [25]    Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922,[34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].

    RELEVANT PERIOD

23. The Relevant Period in this matter commenced on 10 May 2022, the date the Applicant lodged his claim for the DSP, and ended 13 weeks later on 9 August 2022. 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

24. 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.[26] The Respondent considers the Applicant’s impairments, for the purposes of the claim for the DSP in question, consist of respiratory,[27] back pain,[28] shoulder pain[29] and hypoxic brain injury[30] conditions (collectively referred to as the Applicant’s conditions).

    [26]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 7, paragraph 38.

    [27]    Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 42-45.

    [28]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 46-48.

    [29]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 9, paragraphs 49-51.

    [30]    Exhibit 4, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 52-54.

25. 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?

    EVIDENCE

26. The Tribunal notes that the main issue before it surrounds the lack of medical evidence in relation to the Applicant’s conditions. Throughout the present Tribunal process:

    (a)the Applicant provided:

    (i)

    a report of Dr Ian Brown, thoracic and sleep physician, dated

    
    

    20 March 2022;[31]

    [31]    Exhibit 2, Supplementary T Documents, ST1, pages 1-5, Report of Dr Ian Brown.

    (ii)a report of Dr Neil Cochrane, neurosurgeon, dated 10 April 2022;[32]

    [32]    Exhibit 2, Supplementary T Documents, ST2, pages 6-12, Report of Dr Neil Cochrane.

    (iii)

    a WorkCover Medical Advisory Panel Referral Detail completed by

    
    

    Dr Sid O’Toole, dated 28 April 2022;[33] and

    [33]    Exhibit 2, Supplementary T Documents, ST3, pages 13-16, Medical Advisory Panel Referral.

    (iv)a complex lung functioning test completed by Jared Mitchell, respiratory scientist, dated 24 October 2022.[34]

    [34]    Exhibit 2, Supplementary T Documents, ST4, page 17, Lung functioning test.

    (b)

    the Respondent sought an opinion in relation to the Applicant’s claim for the DSP from the Health Professional Advisory Unit (HPAU). As a result, a HPAU report dated 9 August 2023 was provided by Dr Keiran Neill.[35] Dr Neill also obtained a report from Dr Gonesh Karmakar, respiratory, sleep and general physician, dated

    
    

    4 February 2022.[36]

    (c)the Respondent provided:

    (i)the Applicant’s Medicare claims history for the period 4 September 2020 to 14 September 2023;[37] and

    (ii)the Applicant’s pharmaceutical benefits scheme (PBS) history for the period 4 September 2020 to 14 September 2023.[38]

    [35]    Exhibit 4, Secretary’s Statement of Facts & Contentions, Attachment A.

    [36]    Exhibit 4, Secretary’s Statement of Facts & Contentions, Attachment B.

    [37]    Exhibit 3, Supplementary T Documents, ST6, pages 2-22, Medicare claims history.

    [38]    Exhibit 3, Supplementary T Documents, ST7, pages 23-33, PBS claims history.

27. The Tribunal has had the opportunity to review the evidence before it in totality and considers that the summary of that evidence as outlined in the HPAU Report completed by Dr Neill, accurately reflects the situation.

    Applicant’s evidence

28. At the Hearing, the Applicant told the Tribunal that:

    ·He should not be alive after his accident. The hospital and the doctors are surprised that he could walk and was still alive – he was not meant to come out of his coma.

    ·Half of his chest is titanium and as a result he has 50% breathing capacity.

    ·His legs have been blowing up from water retention. He has spent over a week in hospital because of it and is scheduled to undergo further tests.

    ·He cannot bend over and is unable to get up off the floor.

    ·He is in constant pain and has relied on strong pain killers since leaving hospital.

    ·His chest pain is like wearing a wine barrel, he has weight and pressure around his chest that does not move.

    ·His back and shoulder click and cause pain.

    ·He is unable to do normal housework or mow the grass.

    ·He does not have much paperwork as he did not receive any rehabilitation or follow up from the hospital. Once he left the hospital, WorkCover took over.

    ·He has not been referred to a pain clinic. He has tried different things in an attempt to come off his strong pain killers, however he cannot walk if he does not take them.

    ·He takes his inhaler when he experiences shortness of breath.

    ·The Princess Alexandra Hospital spinal team said that there was nothing else that could be done for him. Chiropractors and physiotherapists are worried about his back clicking and do not want to treat him.

    ·He can lift his shoulders up to 75 degrees.

    ·He cannot change a light globe.

    ·Hanging washing up is very difficult as he cannot keep his arms up.

    ·Using a shopping trolley is not helpful for him because it adds pressure to his chest.

    ·He can walk around a shopping centre by himself but cannot lift anything too heavy. He can lift a 3-litre milk bottle into the trolley but could not carry it to the checkout.

    ·His sons help him with the house and yard work.

    ·He can drive himself because he bought a car that suits his condition.

    ·He can sit down for 30 minutes.

    ·He no longer sees anyone at the Princess Alexandra Hospital.

    ·WorkCover had him try to undertake voluntary work for 3-4 hours twice a week, however he could not do it.  He has to lie down or move around whenever he needs to.

    ·He cannot sit and watch TV, as he has to get up every 30 minutes to an hour.

    ·His mind wanders and this affects his ability to concentrate on forms.

    ·He gets lower back pain after standing for 5 minutes and sitting for 10 minutes.

    ·His pain has gotten worse since the Relevant Period. He now has to try and control the temperature he is in, as being too hot or too cold increases his pain.

    ·He only saw Dr Karmakar once as the appointment was arranged by WorkCover.  Dr Karmakar gave him an inhaler, however when he used it, he struggled for breath. He was rushed to hospital and told to stop taking it.

    ·He does not take Symbicort as Dr Karmakar could not guarantee that he would not end up in hospital again, so instead he takes an over-the-counter inhaler.

    ·No doctor has told him that he has asthma. He was not given any further treatment as WorkCover stopped it. He only uses the over-the-counter inhaler about once a week when he experiences wheezing. Dr Karmakar gave him 5 inhalers to try, and the last one put him in hospital.

    ·He did not engage with a specialist after his lung test as he saw his GP.

    ·He has not been referred to a psychologist or neurologist or neuropsychologist.

    ·He has not been able to ride his motorcycle even for a short period of time. He tried 6 months after he left hospital, but it has been in his shed ever since.

    ·No one has physically looked at him, so they cannot see that he is unable to work.

    ·He is bored being on the “dole” – he would work if he could.

    Evidence from the HPAU 

29. In a report dated 9 August 2023, Dr Neill of the Respondent’s HPAU outlined that his opinion had been provided in accordance with the Guidelines for Persons Giving Expert and Opinion Evidence issued by the Tribunal. Dr Neill also provided that the opinion in the report was based on a file review and detailed analysis of the referenced documents and when applicable, discussions with treating health professionals. He had not, however, interviewed or examined the Applicant.[39]

    [39]    Exhibit 4, Secretary’s Statement of Facts & Contentions, Attachment A, page 1, Health Professional Advisory Unit Report.

30. Having analysed the evidence before him, Dr Neill provided the following discussion and opinion:[40]

    [40]    Exhibit 4, Secretary’s Statement of Facts & Contentions, Attachment A, pages 3-6, Health Professional Advisory Unit Report.

    Crush injuries

    Is it diagnosed?

    The tribunal and supplemental tribunal documents outline the numerous injuries [the Applicant] sustained as a result of his workplace incident involving being crushed by an estimated 600kg object (AAT1, WPI ST). [The Applicant] had severe injuries necessitating an ICU admission and 5 week hospital admission. The crush injuries documented included fractured ribs, vertebrae, rhabdomyolysis, skin infection, and surgical scarring.

    [The Applicant’s] crush injuries can summarised as affecting his respiratory function – namely his rib cage and sternum and associated scar tissue, pre‐existing emphysematous disease, upper limb, and spine. I will outline these individually. 

    ‐

    There were no forthcoming reports from a respiratory physician provided to Services Australia with regard to [the Applicant’s] respiratory function, diagnosis and management. I contacted Dr Gonesh Karmakar as his name was mentioned in one of the ST documents (ST1). Dr Karmakar’s rooms faxed me a letter dated 4/2/2022 addressed to Workcover QLD (D1).  Dr Karmakar mentions that [the Applicant’s] current problems are “ongoing breathlessness following multiple chest injury at work place incident with associated restrictive and obstructive lung function with reduced gas transfer. Persistent multiple areas of ground glass nodules in the lung will require surveillance.”

    Dr Karmakar notes that “His [the Applicant] spirometry showing obstructive defect with significant bronchodilator response which would be consistent with asthma. It appears Dr Karmakar has diagnosed [the Applicant] with Asthma.

    I contacted Dr Karmakar’s rooms and was told that [the Applicant] attend once on the 4/2/2022 and then did not attend his follow up appointment in April 2022 and has not attended any more appointments. 

    I consider [the Applicant] is diagnosed with asthma at the date of claim. 

    ‐

    There are documented fractures at multiple spinal levels in his discharge summary ranging from cervical, thoracic and lumbar vertebrae (T8). These multiple fractures required no surgical intervention at the time and were managed conservatively. The specific vertebrae levels creating his pain have not been investigated and the nature of his spinal pain is not fully elucidated. There is no opinion from relevant non‐GP specialist surgeon or physicians as of the qualification period to investigate his spinal pain. Therefore this is not fully diagnosed. 

    ‐ pain

    There is no evidence of diagnosis of his shoulder pain. It is unknown if this is due to referred pain from his thoracic injuries, spine or from damage to shoulder anatomy. This is not fully elucidated.  Upon initial assessment by physiotherapist Mr Mickey Cheung, notes that “I am expecting [the Applicant’s] symptoms are consistent with bilateral frozen shoulder, chronic mid back and lower back pain with muscle wasting.” There is no provided specialist follow up, therefore this condition is not fully diagnosed. 

    Is it fully treated and stabilised?

    ‐ symptoms

    A phone call to Dr Karmakar rooms shows that [the Applicant] was seen on 4/2/2022 and then did not attend his follow up appointment which was schedule for April 2022. 

    Dr Karmakar concluded in his letter dated 4/2/2022 that “He will be reviewed again in two months with lung function test and High resolution CT scan of the chest.”;  “He will benefit from asthma preventer. Today I has stopped Seretide (Fluticasone proprionate and Salmeterol xinafoate) and replaced that with Symbicort (Budensonide/formoterol)”.

    No review or treatment plan has been provided to determine if he is fully treated and stabilised. There has been no review of the effect of Symbicort in the management of [the Applicant’s] breathlessness or if it has improved his lung function test and spirometry. It is unknown if [the Applicant] has been compliant with his Symbicort or has experienced any benefit or adverse effects to this medication. If he has not experienced any benefit, there may be other therapies that may improve his respiratory function. 

    A complex lung function test dated 24/10/2022 from Queensland Respiratory Services is provided in ST4.  This concludes that “severe obstructive abnormality. No significant response following bronchodilator. Static lung volumes within normal limits. Moderate impairment in Hb (Haemoglobin) corrected CO (carbon monoxide) gas transfer. Results consistent with a diagnosis of COAD (Chronic obstructive airways disease)/ chronic asthma.” There is no Respiratory physician review of this investigation provided.

    I opine [the Applicant’s] respiratory symptoms are not fully treated and stabilised as of the qualification period.

    ‐ symptoms 

    There is no documented review by an appropriate non‐GP specialist surgeon or physician with regard to assessing and providing a treatment plan with regard to his ongoing spinal pain. There is no further imaging or treatment. Therefore I opine [the Applicant] is not fully treated and stabilised as of the qualification period.

    ‐  symptoms

    There are no imaging investigations or review of his shoulder pain by an appropriate non‐GP specialist surgeon or physician. There are no contemporary imaging reports including x‐ray, or ultrasound or MRI of the shoulder to determine the cause of his pain or if it is referred pain from his spine. I opine [the Applicant] is not fully treated and stabilised as of the qualification period.

    [The Applicant] had hospital inpatient treatment after his accident, and has remarked that he has participated in outpatient therapy, namely physiotherapy for a year and a half after his incident.  The evidence provided from his physiotherapist in a letter dated 16/4/2021 suggests that he had been seen [the Applicant] from January 2021 to April 2021 (T9). There is only one letter provided from physiotherapist Mr Mickey Cheung which appears to be an initial assessment letter. No progress letters have been provided by his physiotherapist at the date of claim.  I requested letters from Absolute Physio and Rehab, the provider he was attending to ascertain if he had improved in the time he attended their clinic. I did not receive any correspondence from this physiotherapy practice.  Dr Karmakar remarks that [the Applicant] said “He has been feeling better with physiotherapy.”

    With the paucity of medical evidence provided I opine that [the Applicant] is not considered fully treated and stabilised as of the qualification period. 

    Hypoxia to the brain.

    Is it diagnosed?

    [The Applicant] has been reviewed by a Neurosurgeon Dr Neil Cochrane in his capacity as an expert medical examiner for [the Applicant’s] workcover claim, not for an of opinion for management and surgical and non‐surgical treatment for his underlying conditions (ST2). [The Applicant] reports that he has post‐traumatic amnesia as part of the incident. [The Applicant] is reported to have had respiratory compromise at the time of the incident and required retrieval and intensive care. The evidence documents that [the Applicant] had a GCS 4/15 at the time of paramedic intervention. Whilst in hospital [the Applicant] had GCS of 15/15 for his entire stay. There are no other examinations or assessments for brain injury such as the Westmead post traumatic amnesia scale (wPTA) during his admission. There are no radiological reports suggestive of hypoxic brain injury, although CT brain does not always show evidence of hypoxic brain injury, especially if it is mild. There are no MRI brain images reported to assess for hypoxic brain injury or Neurologist opinion. There has not been an in depth diagnosis of brain injury, and no neurocognitive assessment is provided that can diagnose [the Applicant] with hypoxic brain injury.

    [The Applicant] has not had a neuropsychological assessment and there are no tests confirming if he does indeed have deficits as a result of a hypoxic injury. I do not believe that [the Applicant] is fully diagnosed with hypoxic brain injury.  [The Applicant] remarked in Dr Cochrane’s letter that he “has a poor memory” and is “generally forgetful of for non‐important stuff”. Dr Cochrane remarks that “the primary neurocognitive issue seems to be that of poor short term memory and some difficulty with higher cognitive functions.” It is worth noting that [the Applicant]  “he smokes marijuana to help control his pain and he states he is trying to get on the “CBD scheme”. Marijuana (Cannabis) can impair cognition and potentially contribute to some symptoms he has complained of, and he would need specialist assessment to determine if his reported issues related to illicit substances, possible hypoxic brain injury or from another disease. 

    Is it fully treated and stabilised?

    Generally speaking hypoxic brain injuries carry a poor prognosis for healing and are permanent in nature. The severity of the hypoxic brain injury was on the mild end of the spectrum. [The Applicant] has not been assessed by a Neurologist, or been reviewed by a Neuropsychologist for diagnosis, or treatment. [The Applicant] holds a driver licence and can still operate a car and motorcycle which require a complex interplay of various higher level brain functions and senses. I opine [the Applicant] is not fully treated and stabilised as of the qualification period.

    Work capacity.

    GP Dr Qureshi was asked by Services Australia in a job capacity assessment (JCA) dated 18/8/2022 that with consideration to the time the customer has been his patient (8 months), he is of the opinion the customer would have the physical capacity to work in a sedentary or minimally physical job for 3 hours/day or 15 hours/week (T16). There is a paucity of medical evidence to suggest that [the Applicant] would not be able to work.  I consider that because of this [the Applicant] would have capacity to work 15 or more hours per week in a role with support within the next two years.

    [The Applicant] does not have any medical impairments that are FDTS and can be rated under an impairment table as of the qualification period. This is not to say that [the Applicant] did not suffer serious injuries form his accident, and suffers from the sequelae of his workplace accident, but there is not enough medical evidence provided to assess [the Applicant] under the legislation. I opine that [the Applicant] is medical ineligible for DSP.  

1. At the Hearing, Dr Neill attended by telephone and gave evidence under affirmation. Dr Neill confirmed his name, qualifications, and that he did not seek to make any changes to his report.  Dr Neill told the Tribunal that the contents of his report were reflective of his review of the materials and his contact with Dr Karmakar’s rooms.

2. When asked whether he wanted to comment on the Medicare and PBS information provided in the Supplementary T Documents, Dr Neill told the Tribunal that there was no record of the Applicant having filled prescriptions for either Seretide or Symbicort as recommended by Dr Karmakar.  He said that there were two entries for Salbutamol, with the last being in July 2021. Dr Neill told the Tribunal that he would expect to see a regular subscription being filled, however, there was no evidence of first line treatment being provided for asthma in the PBS records.

3. When asked about the cause of the Applicant’s shortness of breath, Dr Neill told the Tribunal that the only evidence available is the discharge summary from the Princess Alexandra Hospital in 2020. Dr Neill said that there is no evidence from the team that treated the Applicant to give a view of the restrictiveness of his rib cage and as such, he cannot give an opinion in relation to its contribution to his shortness of breath.

4. Dr Neill told the Tribunal that it was unusual to not have outpatient follow up when discharged from the hospital.  He told the Tribunal that the discharge summary referred to CTS, which is to be followed up in outpatients and it is there that any lingering issues should have been bought up and ongoing reviews scheduled to work out what was causing the Applicant’s ongoing breathing issues.

5. Dr Neill told the Tribunal that the Applicant’s traumatic injury has led to him experiencing pain in his shoulder, back and chest. However, the medical evidence does not outline what the underlying cause of the pain is.  Dr Neill opined that review by a pain specialist or attendance at a pain clinic would assist in identifying the cause of the Applicant’s pain and treatment that may assist with relieving it.

   CONSIDERATION

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

6. The Tribunal accepts the Applicant’s evidence that he is in constant pain as a result of the 2020 accident and that his resulting conditions affect his ability to undertake activities of daily living and impact on his physical health. The Tribunal is, however, limited to assessing the Applicant’s eligibility for the DSP in accordance with the statutory requirements.

7. Based on the available medical evidence, evidence provided by the Applicant at the Hearing and the evidence of Dr Neill, the Tribunal is left in a position where there is no doubt and it is not in dispute that the Applicant has multiple conditions resulting from his crush injury.  The issue however is that, that evidence does not establish the diagnosis, treatment or stabilisation of the Applicant’s conditions during the Relevant Period. The Tribunal notes that the majority of the available medical evidence was provided by specialists as part of a medico-legal review for WorkCover purposes rather than from a treatment perspective.

8. Based on the Applicant’s evidence, he has surprised his family and treating doctors at the Princess Alexandra Hospital with his recovery.  That recovery is a credit to his determination.

9. The Tribunal accepts the Applicant at his word that he has not had follow up appointments scheduled for his conditions with the Princess Alexandra Hospital, nor has he been referred to specialists by his general practitioner. There is no evidence before the Tribunal however as to why this is the case.  There is no corroborating evidence before the Tribunal suggesting that further treatment of the Applicant’s conditions would not have resulted in improvement of his conditions to an extent that would have allowed him to engage in work or study for 15 hours a week within 2 years of his claim for the DSP. Instead, his treating general practitioner in August 2022, provided that he was capable of undertaking 15 hours of work a week.

10. The evidence of Dr Neill on the other hand indicates that the Applicant would benefit from specialist review and engagement with a pain management clinic or pain specialist. Dr Neill considered the available evidence from a medical perspective and opined that while during the Relevant Period, the Applicant’s asthma condition had been fully diagnosed, his other conditions had not due to the absence of specialist review and further diagnostic testing.  Dr Neill further opined that in such circumstances, the Applicant’s conditions could also not be considered to have been fully treated and fully stabilised during the Relevant Period.

11. In summary, the Respondent outlined that:[41]

    39.The Secretary contends that the Applicant did not have any FDTS conditions during the qualification period. The Secretary agrees with the AAT1’s observation that there is insufficient medical evidence to properly and comprehensively assess the Applicant’s impairments.

    40.In these circumstances, the Secretary contends that the Applicant cannot be assigned an impairment rating under the Impairment Tables and therefore did not attract an impairment rating of at least 20 points under the Impairment Tables. On that basis, the Secretary contends that the Applicant did not satisfy paragraph 94(1)(a) of the Act during the qualification period. 

    [41]    Exhibit 4, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 39-40.

12. The Tribunal accepts that the Applicant’s asthma was fully diagnosed at the Relevant Period. However, based on the Applicant’s evidence at Hearing, it cannot be satisfied that his asthma was fully treated and fully stabilised. There is no evidence before the Tribunal to explain the cause of the Applicant’s shortness of breath.

13. The Tribunal accepts the evidence of Dr Neill and agrees with the findings of the SSCSD in that there is insufficient evidence available to properly and comprehensively assess the Applicant’s impairments.

14. Consequently, based on the limited evidence before it, the Tribunal cannot be satisfied that the Applicant’s conditions could be considered as permanent for the purposes of section 94(1)(b) of the Act during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for his conditions.

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

15. As the Tribunal has found that the Applicant did 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

16. 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.

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

    (a)asthma condition was fully diagnosed but 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

    (b)other respiratory, back pain, shoulder pain and hypoxic brain injury conditions were 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.

18. 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.

19. Accordingly, the decision under review is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

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

Associate

Dated: 27 March 2024

Date of hearing:	19 March 2024
Applicant:	By phone
Solicitors for the Respondent:	Ms Gillian Gehrke Services Australia