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

McGee and Secretary, Department of Social Services (Social services second review) [2017] AATA 722 (24 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/5853
Re:Wendy McGee
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:24 May 2017
Place:Brisbane

The Tribunal affirms the decision under review.
................................[Sgd]........................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether mental health condition fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work - decision 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
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404.
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534.
REASONS FOR DECISION
Member D K Grigg
24 May 2017
INTRODUCTION

On 11 February 2016 Ms McGee lodged a claim for Disability Support Pension (“DSP”) describing her medical conditions as follows:[1]
Heart disease/Bronchial Choroiditis & cataract left eye. Severe deformities [sic] of the back from lower scoliosis in middle & two discs missing [sic] in neck/pelvic pain & diarrhea [sic] headaches/insomnia/anemia/depression/constant [sic] pain hips, back, right leg and knee and aching Feet/urine loss due to lower back wearing muscles/cold and flu symptoms all the time. Can not do air con rooms or change of weather/gall bladder removed
[1] Exhibit 1, T Documents, T28, page 150, Ms McGee’s Claim for DSP dated 11 January 2016.
On 19 April 2016 a Job Capacity Assessment (“JCA”) was conducted face-to-face with
Ms McGee by a Qualified Social Worker and Physiotherapist. The JCA concluded that
[2] Exhibit 1, T Documents, T29, pages 155-164, JCA Reported dated 19 April 2016.
Ms McGee’s medical conditions were not fully diagnosed, treated and stabilised or did not attract 20 points or more under the Impairment Tables.[2]
As a result of the JCA report, Centrelink rejected Ms McGee’s claim for DSP.[3]
[3] Exhibit 1, T Documents, T41, page 196, Centrelink records.
Claim History
Ms McGee sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that

Ms McGee’s medical conditions were not fully diagnosed, treated and stabilised or did not
attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T34, pages 170-178, Decision of ARO dated 7 July 2016.
Ms McGee lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Ms McGee’s claim and affirmed the ARO’s decision on 29 September 2016.[5]
[5] Exhibit 1, T Documents, T2, pages 2-8, SSCSD’s Decision and Reasons for Decision dated 29 September 2016.
Ms McGee has sought a review of the SSCSD’s decision by this Tribunal.[6]
[6] Exhibit 1, T Documents, T1, page 1, Ms McGee’s Application for Review dated 31 October 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Ms McGee must have a physical, intellectual or psychiatric impairment;
(b)Ms McGee’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]
(c)Ms McGee must have a continuing inability to work.
[7] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms McGee meets the Section 94 Requirements is the date of the claim (in this instance as at 3 February 2016),[8] unless Ms McGee becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[9] Therefore, in order to qualify for DSP Ms McGee must have met the Section 94 Requirements between 3 February 2016 and 4 May 2016 (“Qualification Period”).
[8] Exhibit 1, T Documents, T41, page 196, Centrelink records.
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms McGee’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Date.[10]
DID MS MCGEE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97
ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Ms McGee’s medical conditions
[11] Determination, s 3.
Ischaemic Heart Disease
Ms McGee was diagnosed with Ischemic Heart Disease in November 2010.[12]
[12] Exhibit 1, T Documents, T4, page 59, Report of Dr L Fraser dated 11 July 2011. See also T10, page 76, Medical
Report by Dr Hui dated 14 June 2013.
The JCA concluded on 19 April 2016 that Ms McGee’s Ishcaemic Heart Disease was fully diagnosed, treated and stabilised because, at that time, Ms McGee reported that the condition was well managed and did not cause her any significant problems, no further treatment was planned and no further treatments likely.[13]
[13] Exhibit 1, T Documents, T29, page 158, JCA Report dated 19 April 2016.
Cholelithiasis (Gallstone disease)
Ms McGee was diagnosed with Cholelithiasis in December 2010.[14]
[14] Exhibit 1, T Documents, T4, page 59, Report of Dr L Fraser dated 11 July 2011.
Thoracolumbar Spine
In March 2013 an x-ray of Ms McGee’s thoracolumbar spine was taken and indicated:[15]
“moderately severe scoliosis convex to the right centred on the T12/L1 disc space…associated with a significant rotatory component…large degenerative endplate osteophytes laterally on the left…as well as prominent anterior endplate osteophytes. I suspect that L1 represents a hemi-vertebra with failure of formation of the left lateral side of the vertebral body. These changes represent a congenital abnormality.”
[15] Exhibit 1, T Documents, T9, page 69, X-ray Report dated 26 March 2013. See also T10, page 73, Medical Report
by Dr Hui dated 14 June 2013.
In May 2016 Dr Matthew Killen, General Practitioner confirmed that in relation to Ms McGee’s congenital scoliosis, Ms McGee was waiting for possible physiotherapy treatment to help with her symptoms but that physiotherapy would not fix the underlying condition.[16]
[16] Exhibit 1, T Documents, T9, page 167, Report of Dr Killen dated 24 May 2016.
The JCA concluded on 19 April 2016 that Ms McGee’s spinal condition was not fully treated and stabilised because she had not been reviewed by a specialist for some time and was not receiving any treatment which may assist in improving her functional capacity.[17]
[17] Exhibit 1, T Documents, T29, page 156, JCA Report dated 19 April 2016.
In May 2016 Ms McGee was reviewed by Dr Dinesh Sharma, Consultant Orthopaedic Surgeon, who confirmed that an x-ray indicated fusion of the C5 and C6 vertebrae and evidence of congenital scoliosis around the thoracolumbar region with degenerative changes. Dr Sharma said the x-ray also indicated a suggestion that she may have a hemivertebrae at the L1 level. Dr Sharma suggested that she be reviewed in the Adult Scoliosis Clinic to see whether anything could be done to help her manage her pain.[18]
[18] Exhibit 1, T Documents, T36, page 186, Medical Report by Dr Sharma dated 12 May 2016.
Vision
In March 2013 Dr Hui reported that Ms McGee had left retinal disease which required more investigation but that it was well managed and causing minimal or limited impact on Ms McGee’s ability to function.[19]
[19] Exhibit 1, T Documents, T10, page 79, Medical Report by Dr Hui dated 14 June 2013.
On 8 October 2013 Mr Thomson, Optometrist, reported that Ms McGee’s left eye vision was poor and cannot be improved due to cataract and choroiditis.[20]
[20] Exhibit 1, T Documents, T13, page 90, Report of Mr Thomson dated 8 October 2013.
In February 2016 Mr Thomson reported that Ms McGee’s right eye health is normal but that her left eye vision is “severely restricted” and “can not be helped”.[21]
[21] Exhibit 1, T Documents, T27, page 123, Report of Mr Thomson dated 4 February 2016.
The JCA concluded on 19 April 2016 that Ms McGee’s left eye vision was fully diagnosed, treated and stabilised because Mr Thomson reported that no further treatment was available.[22]
[22] Exhibit 1, T Documents, T29, page 157, JCA Report dated 19 April 2016.
Anaemia
In October 2011 Dr Dillon reported that Ms McGee had anaemia and was being treated with iron supplements and Vitamin C.[23]
[23] Exhibit 1, T Documents, T19, page 112, Medical Certificate by Dr Dillon dated 20 October 2011.
An Employment Services Assessment Report dated 8 November 2011 noted that Ms McGee suffered from Anaemia and was being treated with iron supplements.[24]
[24] Exhibit 1, T Documents, T7, page 64, Employment Services Assessment Report dated 8 November 2011.
A Haematinics report in September 2015 indicated that Ms McGee was suffering from iron deficiency.[25]
[25] Exhibit 1, T Documents, T22, page 115, Haematinics Report dated 23 September 2015.
Ms McGee then presented at a Haematology Clinic in November 2015 where her blood was examined. The blood examination indicated Ms McGee has “microcytic anaemia”[26] and “mild iron deficiency”.[27]
[26] Exhibit 1, T Documents, T24, page 117, Blood Examination Report dated 10 November 2015.
[27] Exhibit 1, T Documents, T25, page 118, Cumulative Iron Studies dated 10 November 2015.
The JCA concluded on 19 April 2016 that Ms McGee’s anaemia was not fully treated and stabilised because, at that time, Ms McGee reported that she had been feeling better since an iron transfusion in September 2015 and was having further investigations.[28]
[28] Exhibit 1, T Documents, T29, page 159, JCA Report dated 19 April 2016.
Headaches
On 21 January 2016 Dr Killen reported that Ms McGee suffered from recurrent headaches which may improve with time.[29]
[29] Exhibit 1, T Documents, T26, page 122, Medical Certificate by Dr Killen dated 21 January 2016.
The JCA concluded on 19 April 2016 that Ms McGee’s headaches were not fully diagnosed, treated and stabilised because, at that time, she had not been reviewed by a specialist and had not received any treatment for the condition.[30]
[30] Exhibit 1, T Documents, T29, page 158, JCA Report dated 19 April 2016.
Anxiety and Depression
In June 2016 Dr Killen, General Practitioner, reported that Ms McGee had had anxiety and depression for a few years.[31]
[31] Exhibit 1, T Documents, T32, page 168, Medical Certificate by Dr Killen dated 16 June 2016; T33, page 169,
In or around mid-late to 2016 Ms McGee was seen by Dr Carol Park, Clinical Psychologist. Dr Park reported in October 2016 that Ms McGee is experiencing a moderate level of depression and a moderate level of stress/anxiety. Dr Park reported that Ms McGee’s level of anxiety is something that can be worked upon once external pressure Ms McGee feels from Centrelink, is removed.[32]
[32] Exhibit 1, T Documents, T37, page 187, Report of Dr Park dated 31 October 2016.
The JCA concluded on 19 April 2016 that Ms McGee’s depression was not fully diagnosed, treated and stabilised because, at that time, she had not been reviewed by a clinical psychologist, nor was she receiving any treatment for the condition.[33]
[33] Exhibit 1, T Documents, T29, page 159, JCA Report dated 19 April 2016.
Conclusion on Impairment
The Respondent accepts that Ms McGee suffers from impairments for the purposes of section 94(1)(a) as at the Qualification Period.[34]
[34] See Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, para 26.
In light of the above medical evidence I find that during the Qualification Period Ms McGee suffered from the following Impairments:
(a)Ischaemic Heart Disease;
(b)Thoracolumbar scoliosis;
(c)Anaemia;
(d)Vision Impairment; and
(e)Anxiety and depression.
for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the Headaches, there is no medical evidence regarding the cause of this condition, there is no treatment being provided and there is no other evidence concerning how this condition impacts of Ms McGee’s ability to function. As a result, I find that this condition does not satisfy section 94(1)(a) as at the Qualification Period.
Ms McGee says she has bronchitis and that it has a major affect on her health.[35] At the hearing, Ms McGee said it was diagnosed many years ago and she manages the condition with the use of a puffer. However, there is no supporting medical evidence of this condition and as a result, I am unable to consider this condition as an impairment for the purpose of section 94(1)(a) of the Act.
DO MS MCGEE’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[35] Exhibit 3, Email from Ms McGee dated 21 January 2017.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[36] They are function based[37] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[38]
[36] Determination, s 4(2) and 5(2)(a).
[37] Determination, s 5(2)(b) and (c).
[38] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[39]
(a)Ms McGee’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[39] Determination, see s 6(3).
Ms McGee’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[40]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[40] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[41] the following must be considered:[42]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[41] For the purposes of ss 6(4)(a) and (b) of the Determination.
[42] Determination, see s 6(5).
A condition is fully stabilised[43] if:[44]
(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[45]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[43] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[44] Determination, see s 6(6).
[45] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Is Ms McGee’s Heart Disease Impairment permanent and likely to persist for at least 2 years?
Following a heart attack in 2010 Ms McGee had a balloon angioplasty and stent inserted in 2010 and since then has been treated with medication.[46] Ms McGee had a second heart attack in 2012.[47]
[46] Exhibit 1, T Documents, T10, pages 76-77, Medical Report by Dr Hui dated 14 June 2013.
[47] Exhibit 1, T Documents, T29, page 158, JCA Report dated 19 April 2016.
Dr Hui reported in 2013 that Ms McGee was no longer experiencing chest pain but felt weak and lethargic and it affected her endurance level. Dr Hui reported that the impact of this condition was expected to last for more than 2 years and the effect of Ms McGee’s ability to function was expected to remain unchanged.[48]
[48] Exhibit 1, T Documents, T10, pages 77-78, Medical Report by Dr Hui dated 14 June 2013.
Ms McGee reported to the JCA in April 2016 that:[49]
·She no longer requires specialist review;
·She has been prescribed medication for this condition but does not take it;
·The condition is well managed and does not cause her any significant problems;
·She has the occasional shortness of breath but feels this is bronchial related;
·She experiences occasional chest pain which is relieved by rest;
·She feels lethargic;
·She is unable to do any housework, shopping, walk for more than 5 minutes due to back pain.
[49] Exhibit 1, T Documents, T29, page 158, JCA Report dated 19 April 2016.
The Secretary concedes that this condition was fully diagnosed, treated and stabilised during the Qualification Period.[50]
[50] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, para 41.
The evidence supports a finding that during the Qualification Period Ms McGee’s Heart Disease Impairment was permanent for the purpose of the Act and that, as a result, an Impairment Rating can now be assigned.
Using the Impairment Tables
I have to assess the level of impact of Ms McGee’s Heart Disease Impairment against the descriptors[51] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[52]
[51] Determination, see ss 3 and 5(3).
[52] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[53]
[53] Determination, see s 6(1).

I am obliged by the Determination to take the following information into account in applying the Tables:[54]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[54] Determination, see s 7.
I must not take into account the following information in applying the Tables:[55]
(a)symptoms reported by Ms McGee in relation to his condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms McGee’s local community.
(c)Which Tables are appropriate are determined by:[56]
(d)identifying the loss of function; then
(e)referring to the Table related to the function affected; then
(f)identifying the correct impairment rating.
[55] Determination, see s 8.
[56] Determination, see s 10(1).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[57]
[57] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[58]
[58] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[59]
[59] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The question, therefore, is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.
Table 1 of the Determination, which deals with Functions requiring Physical Exertion and Stamina, is the relevant Table.
The introduction to Table 1 provides that:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
·results of exercise, cardiac stress or treadmill testing.
The JCA assigned an Impairment Rating of 5 points on the basis that this condition was having a mild functional impact.[60] The Secretary submitted that this Impairment could attract an impairment rating of 5 points on the basis of Dr Hui’s corroborating medical evidence.[61]
[60] Exhibit 1, T Documents, T29, page 161, Job Capacity Assessment report dated 19 April 2016.
[61] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, paras 42-43.
In order to assign an Impairment Rating of 5 points the evidence would need to show that Ms McGee:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
In order to assign an Impairment Rating of 10 points the evidence would need to show that Ms McGee:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
Evidence Identifying the Loss of Function
Dr Hui reported in 2013 that Ms McGee’s heart condition caused her to feel weak and lethargic and that it affected her endurance level.[62] No other corroborating medical evidence of the impact of this condition was presented.
[62] Exhibit 1, T Documents, T10, pages 77-78, Medical Report by Dr Hui dated 14 June 2013.
Ms McGee reported to the JCA in April 2016 that:[63]
·She has the occasional shortness of breath but feels this is bronchial related;
·She experiences occasional chest pain which is relieved by rest;
·She feels lethargic;
·She is unable to do any housework, shopping, walk for more than 5 minutes - however, this was due to back pain.
[63] Exhibit 1, T Documents, T29, page 158, JCA Report dated 19 April 2016.
At the hearing, before me, Ms McGee gave evidence that was consistent with her report to the JCA.
Based on the medical evidence and the evidence given by Ms McGee I find that Ms McGee’s Heart Disease Impairment is having a “mild” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned to this condition under Table 1 of the Impairment Tables is 5 points.
Is Ms McGee’s Thoracolumbar Scoliosis Impairment permanent and likely to persist for at least 2 years?
Dr Hui reported in 2013 that:
(a)Ms McGee had had this condition for a long time and had been taking Panadol and Celebrex for the pain;
(b)future treatment included physiotherapy, back exercises and medication;
(c)the Thoracolumbar Scoliosis Impairment affected Ms McGee’s physical strength and that she unable to have prolonged standing or walking; and
(d)the impact of this condition was expected to last for more than 2 years and the effect of Ms McGee’s ability to function was expected to deteriorate over the next 2 years.[64]
[64] Exhibit 1, T Documents, T10, pages 73-75, Medical Report by Dr Hui dated 14 June 2013.
Dr Killen reported in September 2015, November 2015, and January 2016 that Ms McGee was experiencing ongoing pain in her back and right leg and that this was likely to deteriorate within 2 years.[65]
[65] Exhibit 1, T Documents, T21, page 114, Medical Certificate by Dr Killen dated 2 September 2015; T26, page 119,
Medical Certificate by Dr Killen dated 10 November 2015; T26, page 121, Medical Certificate by Dr Killen 13 January 2016; T26, page 122, Medical Certificate by Dr Killen dated 21 January 2016.
Dr Ingham reported in December 2015 that Ms McGee was experiencing low back pain and that this was likely to deteriorate within 2 years.[66]
[66] Exhibit 1, T Documents, T26, page 120, Medical Certificate by Dr Ingham dated 7 December 2015.
Ms McGee reported to the JCA in April 2016 that:[67]
·She is on the waiting list for specialist review;
·She has been prescribed medication for this condition but does not like taking it and only takes pain relief medication when the pain is unbearable;
·She is unable to do any housework, shopping, walk for more than 150-200 metres and standing is limited to 5 minutes due to back pain.
[67] Exhibit 1, T Documents, T29, page 156, JCA Report dated 19 April 2016.
In October 2016, 5 months after the Qualification Period, Dr Killen provided a report indicating that while Ms McGee had been offered physiotherapy she found it too difficult to attend and that surgery was not being contemplated.[68]
[68] Exhibit 1, T Documents, T36, page 185, Medical Report by Dr Killen dated 4 October 2016.
In May 2016 Ms McGee was reviewed by Dr Dinesh Sharma, Consultant Orthopaedic Surgeon, who confirmed that an x-ray indicated fusion of the C5 and C6 vertebrae and evidence of congenital scoliosis around the thoracolumbar region with degenerative changes. Dr Sharma said the x-ray also indicated a suggestion that she may have a hemivertebrae at the L1 level. Dr Sharma suggested that she be reviewed in the Adult Scoliosis Clinic to see whether anything could be done to help her manage her pain.[69]
[69] Exhibit 1, T Documents, T36, page 186, Medical Report by Dr Sharma dated 12 May 2016.
The Secretary submits that this condition was fully diagnosed but not treated and not fully stabilised during the Qualification Period.[70]
[70] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, para 46.
Ms McGee’s Thoracolumbar Scoliosis Impairment has clearly been fully diagnosed as at the Qualification Period.
At the hearing, before me, Ms McGee gave evidence that she does not believe physiotherapy will help and that at the moment she can walk.
I find that this Impairment has not been fully treated or fully stabilised as defined in the Determination. Ms McGee was still awaiting specialist review, she is not taking the prescribed medication and, it is unclear, from the evidence available:
(a)whether any further reasonable treatment, such as pain management through the Adult Scoliosis Clinic, is likely to result in significant functional improvement to a level enabling Ms McGee to undertake work in the next 2 years; and, therefore
(b)whether Ms McGee has undertaken reasonable treatment for the condition.
I note that Ms McGee said she was due to attend the Adult Scoliosis Clinic again in May 2017.
Therefore, I find that during the Qualification Period Ms McGee’s Thoracolumbar Scoliosis Impairment was not permanent for the purpose of the Act and that, as a result, no Impairment Rating can be assigned.
Is Ms McGee’s Amaemia Impairment permanent and likely to persist for at least 2 years?
Ms McGee has had anaemia since at least 2011. In 2011 Ms McGee was being treated with iron supplements and vitamin C.[71]
[71] Exhibit 1, T Documents, T7, page 64, Employment Services Assessment Report dated 8 November 2011; T19,
page 112, Medical Certificate by Dr Dillon dated 20 October 2011.
In October 2011 Dr Dillon reported that this condition was causing decreased energy and was likely to show considerable improvement within 2 years.[72]
[72] Exhibit 1, T Documents, T19, page 112, Medical Certificate by Dr Dillon dated 20 October 2011.
On 10 November 2015 Dr Killen reported that this condition caused tiredness but was likely to improve and that she was to have specialist review.[73]
[73] Exhibit 1, T Documents, T26, page 119, Medical Certificate by Dr Killen dated 10 November 2015.
In December 2015 Dr Ingham reported that this condition caused lethargy and made
[74] Exhibit 1, T Documents, T26, page 120, Medical Certificate by Dr Ingham dated 7 December 2015.
Ms McGee prone to infections but that it was likely to show considerable improvement within the next two years and that she was to have specialist review.[74]
Ms McGee reported to the JCA in April 2016 that:[75]
(a)past treatment for the condition included B12 injections;
(b)she felt better having had an iron transfusion in September 2015, and
(c)she was having further investigations to establish the cause.
[75] Exhibit 1, T Documents, T29, page 159, JCA Report dated 19 April 2016.
The Secretary had submitted that this condition was not fully diagnosed, treated and stabilised during the Qualification Period.[76] However, at the hearing, the Secretary conceded that Ms McGee’s anaemia was fully diagnosed.
[76] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, para 68.
I find that while the cause of the anaemia may not have been fully understood at the Qualification Period, Ms McGee had been fully diagnosed with anaemia.
At the hearing, Ms McGee said that the condition was stable and there was no immediate need to have another transfusion, although she may require one at some time I the future. I find that this condition had been fully treated and fully stabilised as defined in the Determination. However, Ms McGee gave evidence that this condition was causing minimal or limited impact on her ability to function.
Therefore, I find that during the Qualification Period Ms McGee’s Anaemia Impairment was not having an impact on her ability to function and therefore attracts a zero point Impairment Rating.
Is Ms McGee’s Visual Impairment permanent and likely to persist for at least 2 years?
In March 2013 Dr Hui reported that Ms McGee’s Visual Impairment required more investigation but that it was well managed and causing minimal or limited impact on Ms McGee’s ability to function.[77]
[77] Exhibit 1, T Documents, T10, page 79, Medical Report by Dr Hui dated 14 June 2013.
Dr Killen reported in September 2015, November 2015, and January 2016 that Ms McGee’s Visual Impairment would persist and was permanent.[78]
[78] Exhibit 1, T Documents, T21, page 114, Medical Certificate by Dr Killen dated 2 September 2015; T26, page 119,
Medical Certificate by Dr Killen dated 10 November 2015; T26, page 121, Medical Certificate by Dr Killen 13 January 2016; T26, page 122, Medical Certificate by Dr Killen dated 21 January 2016.
Dr Ingham reported in December 2015 that Ms McGee”s condition was permanent and stabilised.[79]
[79] Exhibit 1, T Documents, T26, page 120, Medical Certificate by Dr Ingham dated 7 December 2015.
Ms McGee reported to the JCA in April 2016 that:[80]
·She has been seen by an eye specialist;
·She has regular optometrist reviews
·There is no other treatment for this condition.
[80] Exhibit 1, T Documents, T29, page 156, JCA Report dated 19 April 2016.
Mr Thomson, Optometrist, reported that Ms McGee’s left eye vision was “severely restricted” and cannot be improved due to cataract and choroiditis.[81]
[81] Exhibit 1, T Documents, T13, page 90, Report of Mr Thomson dated 8 October 2013; T27, page 123, Report of Mr
Thomson dated 4 February 2016.
The Secretary accepts that this condition was fully diagnosed, fully treated and fully stabilised during the Qualification Period.[82]
[82] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, para 35.
The introduction to Table 12 of the Determination, which deals with Visual Function, requires that “[t]he diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist”. No ophthalmologist report was provided, although Ms McGee said she had seen one and reported this to the JCA.[83] The Secretary accepted this was the case.
[83] Exhibit 1, T Documents, T29, page 157, JCA Report dated 19 April 2016.
Accepting Ms McGee’s evidence that the condition was diagnosed by an ophthalmologist, the evidence supports a finding that Ms McGee’s Visual Impairment was permanent for the purpose of the Act, and that, as a result, an Impairment Rating can be assigned.
Relevant Impairment Table and Impairment Rating
Table 12 of the Determination, which deals with Visual Function, is the relevant Table.
The introduction to Table 12 provides that:
·Table 12 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving visual function.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist (e.g. ophthalmologist, ophthalmic surgeon) confirming diagnosis of conditions associated with vision impairment (e.g. diabetic retinopathy, glaucoma, retinitis pigmentosa, macular degeneration, cataracts, congenital blindness);
oresults of vision assessments (e.g. from an optometrist).
·Table 12 should be applied with the person using any visual aids the person usually uses (e.g. spectacles or contact lenses).
·Where severe or extreme loss of visual function is evident or suspected, it is to be recommended that assessment by a qualified ophthalmologist occur to determine if the person meets the criteria for permanent blindness.
The JCA assigned an Impairment Rating of 5 points on the basis that this condition was having a mild functional impact.[84] The Secretary submitted that this Impairment could attract an impairment rating of 5 points and relies on the report of Mr Thomson.[85]
[84] Exhibit 1, T Documents, T29, pages 160-161, Job Capacity Assessment report dated 19 April 2016.
[85] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 21 February 2017, paras 36-38.
In order to assign an Impairment Rating of 5 points the evidence would need to show that:
(1)[Ms McGee] can perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up when wearing glasses or contact lenses (if these are usually worn), and at least one of the following applies:
(a)[Ms McGee] has some difficulty seeing the fine print in newspapers or magazines (e.g. they have to hold the print further away or use brighter light);
(b)[Ms McGee] has some difficulty seeing road signs, street signs or bus numbers or has some difficulty reading road signs at night but can still travel around the community and use public transport without assistance;
(c)when looking straight ahead, [Ms McGee] has some difficulty seeing objects to the side or in the centre of their field of vision;
(d)[Ms McGee] experiences some discomfort when performing day to day activities involving the eyes (e.g. mild occasional watering of the eyes, mild difficulty opening the eyes, or mild difficulty moving or coordinating the eyes, or difficulty tolerating bright lights and sunlight);
(e)[Ms McGee] has functional vision in only 1 eye, or only has 1 eye, but has good vision in the remaining eye.

In order to assign an Impairment Rating of 10 points the evidence would need to show that Ms McGee:
(a)has moderate difficulties seeing things at a distance or close up when wearing glasses or contact lenses if these are usually worn or the person has very limited vision to the sides when looking straight ahead or the person has other significant loss in their field of vision (e.g. patches where they can see nothing or very little); and
(b)needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks; and
(c)has difficulty performing some day to day activities involving vision (e.g. difficulty seeing the print letters, signs or route numbers on approaching buses or at train stations); and
(d) has at least one of the following:
(i)some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;
(ii)moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(iii)only 1 eye or functional vision in only 1 eye and has mild problems with the vision in their only functioning eye; and
(2) The person:
(a)is able to function independently in familiar environments (that is, without regular assistance from other people); and
(b)is able to travel independently using public transport when using any assistive devices that they have and usually use.
Evidence Identifying the Loss of Function
In March 2013 Dr Hui reported that Ms McGee’s Visual Impairment required more investigation but that it was well managed and causing minimal or limited impact on Ms McGee’s ability to function.[86]
[86] Exhibit 1, T Documents, T10, page 79, Medical Report by Dr Hui dated 14 June 2013.
Ms McGee reported to the JCA in April 2016 that she has difficulty with distance vision, for example reading bus numbers and destination.[87]
[87] Exhibit 1, T Documents, T29, page 157, JCA Report dated 19 April 2016.
At the hearing, before me, Ms McGee gave evidence that she avoids driving at night.
There is no corroborating medical evidence that Ms McGee:
(a)needs to use vision aids or assistive devices other than spectacles and contact lenses for some tasks;
(b)has some difficulty seeing routine workplace, educational or training information (e.g. signs, safety information, or manuals) and may need to use alternative formats (e.g. large print), assistive devices or technology for vision in work, training or educational settings;
(c)moderate discomfort when performing day to day activities involving the eyes (e.g. frequent watering of the eyes, frequent difficulty opening the eyes, or moderate difficulty moving or coordinating the eyes, or unable to tolerate normal levels of light indoors or outdoors);
(d)has mild problems with the vision in her functioning right eye.
Based on the medical evidence and the evidence given by Ms McGee I find that
Ms McGee’s Vision Impairment is having a “mild” functional impact on activities as at the Qualification Period. Therefore, the appropriate impairment rating to be assigned to this condition under Table 12 of the Impairment Tables is 5 points. Ms McGee agreed with that rating.
Are Ms McGee’s Anxiety and Depression Impairments permanent and likely to persist for at least 2 years?
Table 5 of the Determination, which relates to mental health function, specifically provides that, in order to assign an Impairment Rating, the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Without such evidence, no Impairment Rating can be assigned. While Ms McGee was diagnosed in or about October 2016, this is some 5 months after the Qualification Period. While Dr Killen reported that Ms McGee had suffered from these conditions for some time, there is no evidence of any earlier diagnosis nor is there any evidence of any treatment being prescribed or provided during the Qualification Period. Ms McGee did not begin treatment with Dr Carol Park, Clinical Psychologist, until some months after the Qualification Period. Ms McGee gave evidence at the hearing that she did not understand what was wrong with her until she began seeing Dr Park and that the treatment is continuing.
In the circumstances, I find that these conditions were not fully diagnosed, fully treated and fully stabilised during the Qualification Period and do not satisfy section 94(1)(a) as at the Qualification Period.
DID MS MCGEE HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As I have concluded that Ms McGee’s Impairments do not attract a total Impairment Rating of 20 points during the Qualification Period it is unnecessary for me to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
CONCLUSION
Ms McGee did not satisfy the section 94(1)(b) of the Act during the Qualification Period and therefore did not qualify for DSP at the date of her claim.
The decision under review is affirmed.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

....................................[Sgd]....................................
Associate
Dated: 24 May 2017

Date of hearing: 26 April 2017

Applicant: By phone

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

Report of Dr Killen dated 22 June 2016.

[2017] AATA 722

24 May 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	26 April 2017
Applicant:	By phone
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services