Meagher and Secretary, Department of Social Services (Social services second review) - [2016] AATA 563

Meagher and Secretary, Department of Social Services (Social services second review) [2016] AATA 563 (2 August 2016)

Division

GENERAL DIVISION

File Number

2016/0375

Re

Julian Meagher

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member D R Davies

Date 2 August 2016

Place Brisbane
The decision under review is affirmed.

.........................[Sgd]...............................................
Senior Member D R Davies
CATCHWORDS
SOCIAL SECURITY – disability support pension – neurological conditions – whether applicant’s conditions are permanent – level of impairment – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth) ss 26, 94
Social Security (Administration) Act 1991 (Cth) ss 26(1), 41, 42
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
Secretary, Department of Social Services and Marwood [2014] AATA 686
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) ss 5, 6, 11
REASONS FOR DECISION
Senior Member D R Davies
2 August 2016
INTRODUCTION

This is a review of the decision of the Administrative Appeals Tribunal Social Services and Child Support Division (“AAT1”) dated 23 October 2015 affirming Centrelink’s decision to reject Mr Julian Meagher’s application for Disability Support Pension (“DSP”).
On 9 September 2014, Mr Meagher lodged a claim for DSP. His claim form[1] listed his disabilities as:
·Hydrocephalus;
·Ulcerative Colitis;
·Fatigue, memory difficulties;
·Uveitis – left eye blindness.
[1] Exhibit 1, T Docs, T10, page 110.
A medical report completed by Mr Meagher’s General Practitioner, Dr Alan Mackenzie dated 1 September 2014 in relation to the claim[2] nominated the condition with most impact on him as neurological condition – aneurysm/sub-arachnoid bleed surgery/hydrocephalus/white matter changes on MRI. This was followed by Ulcerative Colitis, Uveitis, and visual impairment. Section 6 of that report listed other conditions that are generally well managed and which cause minimal or limited impact on ability to function as being sleep apnoea, B12 deficiency and COPD (Chronic Obstructive Pulmonary Disease).
[2] Exhibit 1, T Docs, T11, page 126-136.
On 30 September 2014 Mr Meagher attended a face to face assessment with a Job Capacity Assessor (“JCA”) who recommended that no impairment points be assigned to his impairments. The JCA made the following findings:
·Mr Meagher’s traumatic brain injury whilst considered permanent was not fully treated and stabilised as the condition was still being investigated and was awaiting further consultation and treatment.
·The gastroenterological condition was fully diagnosed, fully treated and stabilised but warranted an impairment rating of nil because there was minimal functional impact.
·Mr Meagher’s chronic obstructive airwaves disease was considered a permanent condition but there was insufficient medical evidence available to consider it as being fully diagnosed, treated and stabilised.
·The Uveitis was verified by the treating doctor as generally well managed with minimal impact on ability to function but as there were no ophthalmology or specialist reports available at the time of the assessment, it could not be further assessed.
·The sleep apnoea and B12 deficiency were generally well managed and of minimal or limited impact although there was insufficient medical evidence available to consider the conditions as being fully diagnosed, treated and stabilised.
·Mr Meagher’s temporary work capacity was assessed at 0-7 hours per week and his baseline work capacity at 8-14 hours per week with future work capacity within 2 years with intervention of 15-22 hours per week.
Mr Meagher’s claim was subsequently rejected by a decision made on 1 October 2014. The decision to reject the claim was affirmed in a decision dated 4 February 2015 by an Authorised Review Officer (“ARO”)[3] on the basis that the conditions of cerebral aneurysm, chronic obstructive airways disease, eye anomaly, sleep apnoea and the circulatory system disorder could not be considered permanent as they have not been fully treated and stabilised or have minimal impact on his ability to function. It was found that only the condition of Ulcerative Colitis was permanent and could be rated under the Impairment Tables but as the functional impact of this conditional was minimal a nil impairment points rating was assigned.
[3] Exhibit 1, T Docs, T18, pages 170-178.
This decision of the ARO was affirmed by the AAT1, although for different reasons. The AAT1 found that Mr Meagher’s total impairment rating was 15 points, of which 10 points were assigned in relation to the brain function and 5 points in respect of the fatigue and reduced exercise tolerance as a result of his neurological issues. The other conditions including Uveitis, Ulcerative Colitis and the emphysema or chronic obstructive pulmonary disease were considered to cause minimal impact on Mr Meagher’s ability to function and accordingly no impairment ratings were assigned. As a consequence, the AAT1 found that Mr Meagher was not qualified for disability support pension at the time of his claim.
Before dealing with the issues raised by this application, I will refer to the key legislative provisions.
THE LEGISLATIVE PROVISIONS
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 person has a physical, intellectual or psychiatric impairment;
·That the person’s impairment is 20 points or more under the Impairment Tables; and
·That the person has a continuing inability to work.
These requirements are contained in ss 94(1)(a), 94(1)(b) and 94(1)(c)(i) of the Act, respectively.
The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim, which in this case is 9 September, 2014. 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[4]. Therefore the relevant period for considering whether Mr Meagher qualified for DSP is between 4 September 2014 and 9 December 2014.
[4] See ss41 and 42, Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
Previous decisions of both the Tribunal and the Federal Court have emphasized that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the Application for DSP and the 13 weeks which followed it. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the person’s condition during the relevant period[5].
[5] See: 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, [32]; and Gallacher v Secretary Department of Social Services [2015] FCA 1123, [25], [28].
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”), a legislative instrument made under the Act.[6]
[6] See s 26(1) of the Social Security Act 1991 (Cth) (“Act”).
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, not to assess conditions.[7] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[8]
[7] See s 5(2) of the Determination.
[8] See s 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned if the condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[9]
[9] See s 6(3) of the Determination.
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, in light of available evidence, to persist for more than 2 years.[10]
[10] See s 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered:
(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.[11]
[11] See s 6(5) of the Determination.
A condition is “fully stabilised” if:
(a)Either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a 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 and 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[12].
[12] See s 6(6) of the Determination.
“Reasonable treatment” is treatment that:-
(a)Is available at a location reasonably accessible to the person; and
(b)Is at a reasonable cost; and
(c)Can reliably be expected to result in a substantial improvement in functional capacity; and
(d)Is regularly undertaken or performed; and
(e)Has a high success rate; and
(f)Carries a low risk to the person.[13]
[13] See s 6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two 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.[14]
[14] See s 11(1) of the Determination.
As regards to the requirement that the person have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied. In summary the person must:
·Have actively participated in a program of support (if the person does not have a severe “severe impairment” within the meaning of s 94(3)B); and
·Be unable to work for at least 15 hours per week independently of a program of support; and
·Be unable to participate in a training activity, or if the impairment does not prevent the person from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next 2 years.
A person’s impairment is a “severe impairment” if their impairment is of 20 points of more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[15]
[15] See s 94(3)B of the Act.
ISSUES FOR THE TRIBUNAL
The Secretary accepts that Mr Meagher’s neurological conditions were fully diagnosed, treated and stabilised at the relevant time[16], but contends that they only warrant a mild impairment with a rating of 5 points under Table 7 of the Impairment Tables[17].
[16] Exhibit 2, para 32.
[17] Exhibit 2, para 33.
The Secretary also accepts that Mr Meagher’s fatigue and endurance conditions were fully diagnosed, treated and stabilised at the relevant time[18] but contends that they only correspond to a mild functional impact with a rating of 5 points under Table 1 of the Impairment Tables[19].
[18] Exhibit 2, para 41.
[19] Exhibit 2, para 42.
In relation to Mr Meagher’s other conditions of Uveitis, Ulcerative Colitis, Chronic Obstructive Airways Disease and Sleep Apnoea, the Secretary contends that they are either not fully diagnosed, treated and stabilised or are generally well managed and causing minimal or limited functional impact and therefore do not warrant any impairment[20].
[20] Exhibit 2, paras 47 and 28.
The issues for me to consider are:
(a)Whether at the relevant time Mr Meagher’s impairments were fully diagnosed, fully treated and fully stabilised;
(b)Whether at the relevant time Mr Meagher’s impairments attracted ratings of 20 impairment points or more under the Impairment Tables; and
(c)If so, unless one of Mr Meagher’s impairments was a severe impairment attracting a rating of 20 points or more, whether Mr Meagher had a continuing inability to work within 2 years of the relevant period.
CONSIDERATION
Were Mr Meagher’s impairments fully diagnosed, fully treated and fully stablished
I consider this by reference to Mr Meagher’s various medical conditions which are to be assessed at the relevant time which was the period 9 September 2014 to 9 December, 2014.
Neurological Conditions
As previously mentioned, the Secretary accepts that Mr Meagher’s neurological conditions were fully diagnosed, treated and stabilised.
The following medical reports establish Mr Meagher’s neurological conditions:
·Dr Mackenzie, General Practitioner dated 1 September 2014[21];
·Dr Peter Bailey, Neurologist dated 9 April 2014[22];
·Dr Jemma Cleminson, Gold Coast Hospital Discharge Summary, dated 9 January 2012[23];
·Dr Bhuta, Radiologist dated 2 August, 2014[24];
·Dr Ash Walton, Cerebral Perfusion Study, dated 4 December 2015[25];
·Dr Hannah Blaine – Neuropsychology Registrar Gold Coast Hospital dated 18 November 2015[26].
[21] Exhibit 1, T Docs, T11.
[22] Exhibit 3, page 1-2.
[23] Exhibit 3, page 3-17.
[24] Exhibit 3, page 18.
[25] Exhibit 1, T Docs, T21, page 183.
[26] Exhibit 1, T Docs, T21, page 184-185.
There are also a number of medical certificates from various doctors which record Mr Meagher’s medical conditions including neurological conditions. These are:
·Dr Bethikiotis dated 25 July 2011[27];
·Dr Cleminson dated 9 January 2012[28];
·Dr Schoeman dated 15 March 2012[29] and 23 January 2014;[30]
·Dr Mackenzie dated 1 September 2014[31], 13 October 2014 and 20 October 2014[32];
·Dr Jeffrey dated 8 April 2015[33] and 23 November 2015[34].
[27] Exhibit 1, T Docs, T17, page 162.
[28] Exhibit 1, T Docs, T17 page 164.
[29] Exhibit 1, T Docs, T17, page 165.
[30] Exhibit 1, T Docs, T17, page 166.
[31] Exhibit 1, T Docs, T11, page 132.
[32] Exhibit 1, T Docs, T17, page 167-168.
[33] Exhibit 1, T Docs, T17, page 169.
[34] Exhibit 1, T Docs, T21, page 189.
Dr Bailey’s report[35] establishes that Mr Meagher had a history of having been diagnosed with multiple aneurysms in 2009 which were treated by coiling to several of them in 2010.
[35] Exhibit 3, pages 1-2.
Dr Cleminson’s report[36] records that in November 2011 Mr Meagher suffered a sub-arachnoid haemorrhage which was treated by coiling at the Princess Alexandra Hospital and subsequently at the Gold Coast Hospital. He suffered hydrocephalus and required a VP Shunt. As he recovered he received rehabilitation in the Gold Coast Hospital Rehabilitation Unit for occupational therapy regarding the cognitive impairment, particularly relating to arithmetic. Mr Meagher discharged himself on 9 January 2012.
[36] Exhibit 3, page 3-17.
Whilst Dr Bailey’s report incorrectly records the date of the sub-arachnoid haemorrhage as being 2010 rather than 2011, he noted that Mr Meagher was left with significant memory disturbance as a consequence. Dr Bailey saw Mr Meagher on 7 April 2014 and his report records that the neurological examination that day did not reveal a lot of abnormalities and his balance was reasonably good. Dr Bailey indicated that he may have some ongoing hydrocephalus which might be further investigated although this was not feasible at that time as Mr Meagher was leaving on a trip to Japan. Dr Bailey noted that Mr Meagher has had persistent problems with his memory which is a chronic yet stable form of memory disturbance. He also recorded that Mr Meagher was tremendously fatigued at that time and lacked the exercise tolerance he previously had. Mr Meagher has also had some depressive features at that time and on occasion some sleep disturbance.[37]
[37] Exhibit 3, page 1.
Dr Mackenzie’s report dated 1 September 2014[38] records that future treatment was continuing surveillance. Dr Jeffery’s medical report dated 8 April 2015[39] records that Mr Meagher’s current treatment was ongoing neurosurgical follow up and planned ongoing monitoring of cognitive function.
[38] Exhibit 1, T Docs, T11, page 130.
[39] Exhibit 1, T Docs, T17, page 169.
I am satisfied that Mr Meagher’s neurological conditions were fully diagnosed, fully treated and fully stabilised at the relevant time and that the resulting impairments are able to be assessed under the Impairment Tables.
Ulcerative Colitis, Uveitis and Visual Impairment
Dr Mackenzie’s report dated 1 September 2014[40] diagnoses Mr Meagher’s second condition as Ulcerative Colitis, Uveitis and Visual Impairment. He records that Mr Meagher had a colectomy in 1970 at age 16. The current treatment for this is described as continuing observation with some medication. Dr Mackenzie recorded that the functional impact of this is tiredness, poor vision, poor balance, poor endurance and he could not stand or walk for long.
[40] Exhibit 1, T Docs, T11, page 132-134.
Whilst Dr Mackenzie’s report refers to Mr Meagher having been referred to an ophthalmologist Dr Hamilton, there is no medical report from him, nor from any other ophthalmologist.[41]
[41] Exhibit 1, T Docs, T11, page 181.
Mr Meagher in his application for review[42] and in his oral evidence to the Tribunal said that Uveitis is a secondary disease consequence of the Colitis. He said in his oral evidence to the Tribunal that he had a cataract removed from his left eye some years ago and that the Uveitis mainly affects the left eye. He said that the Colitis and Uveitis come and go and he described it as “relapse/remission”. He said that the consequences of the Uveitis are poor vision and eye pain. He said that this is mostly in his left eye. In relation to the Colitis he said that its consequences were diarrhoea, sometimes up to four times per day along with tiredness and poor endurance.
[42] Exhibit 1, T Docs, T1, page 6.
In relation to the Uveitis, the only medical report which refers to it is the report of Dr Mackenzie to which I have previously referred. The Introduction to Table 12 of the Impairment Tables requires that the diagnosis of a condition resulting in impairment of visual function must be made by “an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist.”[43] As there is no evidence from an ophthalmologist, the condition of Uveitis is not fully diagnosed and any impairment cannot be assessed.
[43] See Table 12 in the Determination.

I am satisfied that the condition of Ulcerative Colitis was at the relevant time fully diagnosed, fully treated and fully stabilised and that any resulting impairment is able to be assessed.
Other Conditions – Sleep Apnoea, B12 Deficiency, COPD
Dr Mackenzie’s report[44] refers in section 6 to Mr Meagher having the following conditions which are generally well managed and that cause minimal or limited impact or ability to function:
·Sleep apnoea;
·B12 deficiency;
·COPD.
[44] Exhibit 1, T Docs, T11, page 135.
Sleep Apnoea
Mr Meagher in his letter to the Tribunal dated 17 December 2015[45] stated:
Simply sleep apnoea has not been diagnosed, this process is underway and will not be complete until January 2016.
[45] Exhibit 1, T Docs, T21, page 181.
Mr Meagher in his oral evidence to the Tribunal said that the sleep apnoea still has not been diagnosed. He asserts that some tests were done 6 to 12 months ago but there hasn’t been any report to his general practitioner. In the absence of any medical evidence diagnosing this condition I find that at the relevant time it was not fully diagnosed and any impairment is not able to be assessed.
B12 Deficiency
Mr Meagher in his letter to the Tribunal dated 17 December 2015[46] stated:
My former GP gave me three Vitamin B injections with no change to my wellbeing.
[46] Exhibit 1, T Docs, T21, page 181.
Apart from this, and the reference to the B12 deficiency in the report of Dr Mackenzie to which I have previously referred, there is no evidence relating to this condition. I also note that Dr Mackenzie referred to it in section 6 of his report as being generally well managed and causing minimal or limited impact on ability to function. Accordingly, I find that at the relevant time this condition was not fully diagnosed, treated and stabilised or is generally well managed and causing minimal or limited impact on Mr Meagher’s ability to function.
COPD
Mr Meagher in his letter to the Tribunal dated 17 December 2015[47] stated:
The emphysema is an unknown diagnosis, as I have not had a chest x-ray for some time
[47] Exhibit 1, T Docs, T21, page 181.
Chronic Obstructive Pulmonary Disease (“COPD”) is referred to in the report of Dr Mackenzie[48] in section 6 as being generally well managed and causing minimal or limited impact on the ability to function. There is no other evidence relating to this condition. Accordingly, I find that at the relevant time, this condition was not fully diagnosed, treated and stabilised or was generally well managed and causing minimal or limited impact on Mr Meagher’s ability to function.
ASSESSMENT OF IMPAIRMENTS
[48] Exhibit 1, T Docs, T11, page 135.
Neurological Condition
Dr Mackenzie in his report dated 1 September 2014[49] recorded that the impacts of Mr Meagher’s neurological condition on his ability to function are poor memory and poor concentration, poor endurance, easy fatigue, depression, fatigue and lethargy and sleep disturbance.
[49] Exhibit 1, T Docs, T11, page 131.
Dr Blaine, the Neuropsychology Registrar at the Gold Coast Hospital in her report dated 18 November 2015[50] followed her neuropsychological assessment of Mr Meagher on 18 September 2015. It indicates that Mr Meagher’s areas of personal strengths are:
·Remembering new information, particularly with repetition (storage of short-term episodic memory). For example, remembering appointments, recent conversations, details of recent activities.
·Thinking and reasoning without using language (perceptual or non-verbal reasoning). For example, identifying missing puzzle pieces, arranging pictures in the proper order and mentally rotating objects.
·Seeing the spatial relations between items and how things fit together (visuospatial ability). Everyday life examples include drawing, buttoning shirts, constructing models, making a bed, and putting together furniture that arrives unassembled.
·Access to and expression of stored knowledge (vocabulary).
·Inhibiting or “putting the brakes” on a behaviour that’s been considered or one that’s already in motion (inhibition). Everyday life examples of problems include saying or doing things that might be considered rude or dangerous.
[50] Exhibit 1, T Docs, T21, page 184-185.
Dr Blaine’s report goes on to assess Mr Meagher’s areas of personal weakness as (emphasis has been removed):
·Speed of thinking.
·Being able to concentrate or “pay attention” to something, while ignoring irrelevant information (selective attention)…
·Being able to concentrate or pay “pay attention” over longer periods of time (sustained attention)...
·Being able to keep something in mind and manipulate it (working memory)…
Dr Blaine reported that Mr Meagher demonstrated difficulties in the following areas (emphasis has been removed):
·Being able to remember information that you have just heard (immediate memory or focused attention)…
·Learning new information (encoding of short-term episodic memory)…
·Recalling new information and recent experiences without any prompts or reminders (retrieval of short-term episodic memory)…
·Mentally “switching gears” or shifting your approach from one task to another (cognitive flexibility or set shifting).
In her report Dr Blaine went on to say that Mr Meagher’s difficulties with memory are likely due to a combination of the direct effect of the aneurism rupture and secondary complications, such as hydrocephalus, as well as chronic fatigue and sleep disturbance. She said that Mr Meagher also demonstrated on formal assessment that retrieving information from memory is more effortful and that he benefited from prompts and cues to assist retrieval.
Mr Meagher in his evidence to the Tribunal said that Dr Blaine’s report comes close to summarising what he goes through although it doesn’t show the fatigue which he experiences.
In his Application for DSP[51], in his responses to questions 183 and 184, Mr Meagher indicated that his disabilities did not make it difficult for him to use public transport or to care for himself. In his oral evidence to the Tribunal, Mr Meagher said that he can walk from his home to catch the tram but he is then quite tired. He said that he is able to manage his self-care requirements. He said that he does attend to household tasks although sometimes slowly. Dr Bailey in his report[52] stated that Mr Meagher was going on a trip to Japan for four months at the time that he saw him.
[51] Exhibit 1, T Docs, T10, page 123.
[52] Exhibit 3, page 1.
In his letter to the Tribunal dated 17 December 2012[53] Mr Meagher said:
The walk to the local supermarket is about a thirty minute return trip, which is exacerbated by some muscle and joint pain which is a concern. When I wake up I hobble around like a geriatric, which is simply how it is. It does improve as the day progresses which gives me the belief that I can go shopping, to get some exercise to keep my system working. However, this simply exhausts me.
[53] Exhibit 1, T21, page 181.
It is apparent that Mr Meagher’s neurological condition has resulted in impairments relating to brain function which should be assessed under Table 7 – Brain Function of the Impairment Tables and fatigue and endurance which should be assessed under Table 1 – Functions requiring Physical Exertion and Stamina of the Impairment Tables.
Table 7 – Brain Function
Under this Table there is mild functional impairment resulting from a neurological or cognitive condition:
The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:
(a)Memory;
(b)Attention and concentration;
(c)Problem solving;
(d)Planning;
(e)Decision making;
(f)Comprehension.
There is a moderate functional impairment where:
(1) The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:
(a)Memory;
(b)Attention and concentration;
(c)Problem solving;
(d)Planning;
(e)Decision making;
(f)Comprehension;
(g)Visuo-spatial function;
(h)Behavioural regulation;
(i)Self-awareness.
There is no evidence that Mr Meagher requires assistance from another person with day to day activities. Mr Meagher is able to care for himself, perform household tasks, manage the shopping and was able to travel to Japan for some 4 months in 2014. In Secretary Department of Social Services and Marwood[54] the Tribunal did not consider the use of lists, notes or calendar entries amounted to “assistance” for the purposes of Table 58. In the guidelines to the Rules for Applying the Impairment Tables it notes that “assistance” means assistance from another person and not from aids or equipment that the person has and usually uses.
[54] [2014] AATA 686.
As previously noted by Dr Blaine in her report,[55] Mr Meagher has difficulties in these areas:
·Being able to remember information that you have just heard (immediate memory or focused attention)…
·Learning new information (encoding of short-term episodic memory)…
·Recalling new information and recent experiences without any prompts or reminders (retrieval of short-term episodic memory)…
·Mentally “switching gears” or shifting your approach from one task to another (cognitive flexibility or set shifting).
[55] Exhibit 1, T Docs, T21, page 184.
This evidence of Dr Blaine is that Mr Meagher has some difficulties with immediate memory and short-term episodic memory, along with being able to concentrate over longer periods of time. Mr Meagher gave oral evidence to the Tribunal that his duration for reading, writing and working on the internet was less than one hour. Those impacts most closely align with the descriptors for mild functional impact in accordance with Table 7. Further, as Mr Meagher is able to complete most day to day activities without assistance, which is a requirement for mild functional impact, I find that his impairment is a mild functional impairment in accordance with Table 7. Accordingly I assess his impairment rating under Table 7 as being 5 points.
Table 1 – Functions requiring Physical Exertion and Stamina
As I have previously mentioned, Mr Meagher’s neurological condition has also resulted in impairments of fatigue and endurance which should be assessed under Table 1 of the Impairment Tables.
In relation to Mr Meagher’s Ulcerative Colitis condition, which I have found to be fully diagnosed treated and stabilised, the report of Dr Mackenzie[56] indicates that the relevant functional impacts of this condition are tiredness, poor endurance, cannot stand or walk for long. Mr Meagher gave evidence to the Tribunal that the Colitis causes fatigue.
[56] Exhibit 1, T Docs, T11, page 134.
The Rules for Applying the Impairment Tables[57] provide:
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as it would result in the same impairment being assessed more than once.
[57] See section 10(5) and (6) of the Determination.
Accordingly, it is appropriate to assess the fatigue and stamina impairments arising from the neurological and Ulcerative Colitis conditions as a common or combined impairment under Table 1.
As previously mentioned, the evidence in relation to Mr Meagher’s fatigue is that:
·Mr Meagher is able to walk to the supermarket being a return trip of 30 minutes;
·Mr Meagher is able to walk to the tram and to take public transport;
·Mr Meagher is able to perform household tasks, albeit slowly;
·He has a feeling of collapsing when he is walking and sometimes has to sit down to prevent collapsing although he has not collapsed going to the supermarket[58].
[58] Exhibit 1, T Docs, T21, page 181.
I find that Mr Meagher’s functional impact on activities requiring physical exertion or stamina correspond to the descriptors of a mild functional impact in accordance with Table 1 of the Impairment Tables. Accordingly, I assign an impairment rating of 5 points under Table 1 of the Impairment Tables.
Ulcerative Colitis – Diarrhoea
As I have previously mentioned, one of the symptoms which Mr Meagher has as a consequence of his Ulcerative Colitis is Diarrhoea, which he says he sometimes experiences four times per day. In relation to this, Dr Mackenzie makes no reference to this symptom in his report dated 1 September 2014[59].
[59] Exhibit 1, T Docs, T11.
The symptom of diarrhoea should be assessed under Table 10 – Digestive and Reproduction Function of the Impairment Tables. The Introduction to that Table requires that self-report of symptoms is not sufficient and there must be corroborating evidence of an appropriately qualified medical practitioner which includes the person’s treating doctor or a medical specialist. In relation to this symptom, there is no such appropriate medical evidence regarding the symptom of diarrhoea. Having regard to this and Mr Meagher’s evidence of his diarrhoea, I find that there is no evidence that this is a permanent condition resulting in functional impairment. Accordingly an impairment rating cannot be assigned in respect of this.
OVERALL IMPAIRMENT RATING
In accordance with my findings, Mr Meagher only has a rating of 10 points under the Impairment Tables and therefore does not satisfy section 94(1)(b) of the Act.
CONTNUING INABILITY TO WORK
In view of the conclusion I have reached above, it is unnecessary to consider whether Mr Meagher met the third requirement of DSP, namely that he had a continuing inability to work.
CONCLUSION
I do not consider that Mr Meagher qualified for DSP in respect of his claim. Accordingly the decision under review is affirmed.

I certify that the preceding 70 (seventy) paragraphs are a true copy of the reasons for the decision herein of Senior Member D Davies
......................[Sgd]..................................................
Associate
Dated 2 August 2016

Date of hearing 8 July 2016

Applicant By Phone

Solicitors for the Respondent Department of Human Services

Division	GENERAL DIVISION
File Number	2016/0375
Re	Julian Meagher
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member D R Davies
Date	2 August 2016
Place	Brisbane

Date of hearing	8 July 2016
Applicant	By Phone
Solicitors for the Respondent	Department of Human Services