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

Mews and Secretary, Department of Social Services (Social services second review) [2018] AATA 3734 (5 October 2018)
Division:GENERAL DIVISION
File Number(s): 2017/3805
Re:Kenneth Mews
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member C Edwardes
Date:05 October 2018
Place:Perth

The decision under review is affirmed.
...(Sgd).....................................
Member C Edwardes
CATCHWORDS
Social security – disability support pension – medical conditions – heart and diabetes primary conditions – impairment tables – qualification period – continuing inability to work – program of support – decision under review affirmed.
LEGISLATION
Social Security Act 1991 (Cth) – s 94, s 94(1)(a), s 94(1)(b), s 94(1)(c), s 94(1)(c)(i), s 94(2), s 94(3B), s 94(3C)
Social Security Administration Act 1999 (Cth) – s 179, Schedule 2 Clause 4(1)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Harris v Secretary, Department of Employment and Workplace relations [2007] FCA 404
Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – s 3, s 6(1), s 6(2), s 6(3), s 6(4), s 6(5), s 6(6), s 6(7), s 7, ss 7(1), ss 7(2), s 8(1), s 9, s 10, s 11, s 11(1)(c), Table 1
Social Security (Active Participation for Disability Support Pension) Determination 2014– s 5(1)(a), s 7(1), s 7(2)
Department of Social Services, The Guide to Social Security Law, at 20 September 2018
REASONS FOR DECISION
Member C Edwardes
05 October 2018
THE APPLICATION

This is an application for the review of a decision of the Social Services & Child Support Division of the Tribunal (AAT1) (T2 3-12)(R1) that affirmed the decision of an Authorised Review Officer (ARO) (T30 210-217)(R1) of the Department of Human Services (the Department). This decision was made on 21 September 2016, and affirmed the Department’s decision to reject the Applicant’s claim for Disability Support Pension (DSP) (T22 180-181)(R1)
INTRODUCTION
On 30 March 2016, the Applicant lodged a claim for DSP stating that he suffered from type 1 diabetes (T14 150)(R1).
The Applicant’s claim was rejected by an officer of Centrelink, (a part of the Department) on 20 May 2016. This rejection was on the basis that the Applicant failed to attain “an Impairment rating of 20 points or more [under the Impairment Tables]...” (T22 180) (R1).
The Applicant requested a review of this decision. A review was undertaken by an ARO on 21 September 2016 (T30 210-217)(R1).
The ARO advised the Applicant of the following findings:
On 30 March 2016 you lodged a claim for DSP with the department
According to the medical evidence you have the medical conditions of diabetes, hypothyroidism, hypertension, autoimmune disease, Ischaemic [sic] heart disease, osteoarthritis, hyper cholesteroleamia [sic], diabetic maculopathy, GORD and depression.
The conditions diabetes, hypothyroidism, autoimmune disease, osteoarthritis, hyper cholesteroleamia [sic], GORD and diabetic maculopathy have been assessed as 0 impairment points.
The condition Ischaemic [sic] heart disease has been assessed as 5 impairment points on Table 1-Functions Requiring Physical Exertion and Stamina..
The condition hypertension is considered as not stabilised and cannot be assessed for an impairment rating.
The condition depression is assessed as not fully diagnosed and could not be assessed for an impairment rating.
You do not have a severe impairment as defined by the legislation.
You do not have as continuing inability to work in accordance with the legislation
The Applicant lodged an application with the AAT1 on 27 January 2017. (T2 4)(R1)
The AAT1 affirmed the ARO’s decision on 2 May 2017. (T2 3)(R1) The AAT1 found that the Applicant met the qualifications for DSP under section 94(1)(a) of the Social Security Act 1991 (Cth) (the Act). In relation to criteria under section 94(1)(b) of the Act, the AAT1 found the following against each of the Applicant’s medical conditions as at the date of his claim:(T2 5-10)(R1)
·Condition 1 – Ischaemic heart disease – not fully treated and stabilised (FTS). No impairment rating was allocated to this condition.
·Condition 2 – Diabetes (mellitus) – not fully stabilised. No impairment rating was allocated to this condition.
·Condition 3 – Diabetic peripheral neuropathy – not fully diagnosed, treated and stabilised (FDTS). No impairment rating was allocated to this condition.
·Condition 4 – Diabetic nephropathy – not FDTS. No impairment rating was allocated to this condition.
·Condition 5 – (Past) diabetic maculopathy and proliferative retinopathy) – there was insufficient information to conclude that the condition was FDTS. No impairment rating was allocated to this condition.
·Condition 6 – Lupoid type arthritis – there was insufficient information for a reasonable evaluation of the stated conditions. No impairment rating was allocated to this condition.
·Condition 7 – Rib and left clavicle fractures – not applicable at time of claim for the the DSP under review. No impairment rating was allocated to this condition.
The AAT1 found that the “other conditions” (hypothyroidism, hypertension, elevated cholesterol and gastro-oesophageal reflux disease, depression and lumbar radiculopathy) were either manageable, there was a lack of information to make detailed assessments in relation to them, or the conditions were not applicable to the time of claim for DSP under review. No impairment ratings were allocated to these conditions.
The Applicant applied to the General Division of the Administrative Appeals Tribunal (the Tribunal) on 7 July 2017 for a review of the AAT1 decision dated 2 May 2017 (T1 1-2)(R1). The application for review stated:
I am unable to work as stated in the Doctors [sic] letter. As my heart is failing [sic] I can not [sic] walk any distance. I could not work a days [sic] work, As [sic] I get very tired and have to relie [sic] on other [sic] to help me around the house
The Tribunal notes that there was no further evidence presented to the Tribunal after the AAT1 hearing.
The Tribunal has jurisdiction to hear this matter pursuant to section 179 of the Social Security (Administration) Act 1999 (the Administration Act).
RELEVANT LEGISLATION
The relevant provisions governing eligibility for DSP are contained in the Act and the Social Security (Administration) Act 1999.
Section 94 of the Act provides the criteria for DSP, relevantly:
1A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person's impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) person has a continuing inability to work;
(ii) …
Did the Applicant have Impairment ratings of 20 points or more under the Impairment Tables? – Section 94(1)(b) of the Act
Subsection 94(1)(b) of the Act obliges the Tribunal to decide whether the impairments of the Applicant are worth 20 points or more under the Impairment Tables. The Impairment Tables referred to in subsection 94(1)(b) of the Act are found in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). The tables contained within the Determination are referred to as the “Impairment Tables.”
In Ulukut and Secretary, Department of Social Services [2014] AATA 399, Senior Member Isenberg explained the operation of the Impairment Tables as follows:
5… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
6The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination.
Subsections 6(5), 6(6), and 6(7) of the Determination provide further guidance in assessing whether or not a condition is permanent. Subsections 6(5), 6(6) and 6(7) fall under the heading “Applying the Tables.” Subsection 8(1) of the Determination (under the heading “Information that must not be taken into account in applying the Tables”) stipulates that symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Sections 7 to 11 of the Determination provide guidance in how to assess information and evidence using Impairment Tables and how to assign impairment ratings. In particular, subsection 11(1)(c) of the Determination states that “if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.”
Did the Applicant have a continuing inability to work? – Section 94(1)(c) of the Act
As set out above in section 94(1)(c)(i) of the Act, a criterion for qualifying for DSP is that the person has a continuing inability to work. Pursuant to section 94(2) of the Act:
2A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support –- the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases –- the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)in all cases –- either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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 program of support within the next 2 years.
(Emphasis added)
‘Severe impairment’ is defined in subsection 94(3B) of the Act:
A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table. (Original emphasis)
Subsection 94(3C) of the Act states that a person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister.
Relevantly, subsections 7(1) and 7(2) of the Social Security (Active Participation for Disability Support Pension) Determination 2014 require generally, that a person is to participate in a program of support for 18 months in the 36 months prior to the date of the relevant claim for DSP.
Qualification Period
Section 94 of the Act must be read in conjunction with Schedule 2 clause 4(1) of the Administration Act. In accordance with the requirements in Schedule 2 clause 4(1) of the Administration Act, there is a 13 week qualifying period for a DSP claim. The Tribunal is required to determine the Applicant’s claim for DSP in the 13 week period commencing on the day on which the Applicant’s claim for DSP was made, and concluding 13 weeks after that day. In the present case, the 13 week period is from the 30 March 2016 to 29 June 2016 inclusive, and is known as the “Qualification Period.”
For a claim to be successful, a person must be qualified for DSP during the qualification period. Changes in medical conditions that occur later are not relevant to the claim. They may however, be relevant to a future claim (See Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34] and Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1].
The Tribunal is also assisted by the Guide to Social Security Law (the Guide). The Guide provides assistance to those who administer the Act. Whilst not bound to apply policy guidelines, the Tribunal will usually do so unless there are cogent reasons in a particular case not to do so (Refer to Re Drake and Minister for Immigration and Ethnic Affairs (No 2)(1979) 2 ALD 634).
EVIDENCE
As mentioned above, the matter was heard in Perth on 25 September 2018. The Applicant appeared in person and was represented by Ms Moore. The Respondent was represented by Mr Burgess of Sparke Helmore.
The Tribunal would like to thank all parties for the assistance they provided during this hearing.
The Tribunal had the following evidence before it:
·Exhibit A1 – Medical letter from Dr Johan Janssen, Cardiologist, dated 14 November 2017.
·Exhibit A2 – Medical report from Dr Gerhard Beukes, dated 10 January 2018. Attached discharged summary of the Applicant from Geraldton Hospital, dated 9 November 2017.
·Exhibit A3 – Applicant’s Home and Community Care referral and assessment forms, ‘sent’ date of 9 November 2017. Attached Silver Chain Consent Form of Applicant, dated 6 July 2017.
·Exhibit A4 – Medical letter from Dr Johan Ha Janssen, dated 27 March 2018.
·Exhibit R1 – T documents (T1-T46 pp 1-299) dated 30 August 2018.
·Exhibit R2 – Statement of Facts, Issues and Contentions (SOFIC) and list of authorities. Includes Annexures A-D.
The Tribunal has reviewed all of the material before it and is satisfied that all relevant evidence was before it, and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
The hearing
The Respondent opened by relying on its SOFIC, and confirmed that the Qualification Period for this matter was 30 March 2016 to 29 June 2016.
The Applicant made the following opening statements:
·He was sick, unwell, and had been in hospital.
The Respondent stated the two of the Applicant’s primary medical conditions were his heart condition, and diabetes. The Respondent conceded that the Applicant’s heart condition was FDTS and generated 10 impairment points. The Respondent submitted that whilst the Applicant’s diabetes was fully diagnosed and treated, it was not stabilised. The Respondent submitted that there was insufficient information to make a determination in relation to the Applicant’s other conditions.
The Tribunal reminded both parties to confine their evidence and statements relevant to the Qualification Period.
Under cross-examination the Applicant stated:
·he rode his motorbike once every 2-3 weeks;
·he had “good and bad days”;
·he walked into shops and was able to lean on a trolley to rest;
·he visited the shops on a weekly basis;
·he was unstable on his feet;
·he could drive his car, sometimes alone;
·he lived on his own;
·he could feed himself and cooked; and
·he did his own washing.
CONSIDERATION
On the basis of the evidence before the Tribunal, the Tribunal notes that the Applicant filed an application for DSP on 30 March 2016. The Tribunal accepts that the Qualification Period for this matter is from 30 March 2016 to 29 June 2016.
The Tribunal will now consider all the evidence before it.
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments – section 94(1)(a) of the Act
On the basis of the evidence before the Tribunal at the date of the claim, it is not in dispute that the Applicant suffers a range of medical conditions – “ischaemic heart disease, diabetes (mellitus), diabetic peripheral neuropathy, diabetic nephropathy (kidney disease), diabetic maculopathy and proliferative retinopathy (eye disease), lupoid type arthritis (previously categorised as autoimmune and osteoarthritis), and rib left clavicle fractures, and ‘”other conditions” (hyperthyroidism, hypertension, elevated cholesterol and gastro-oesophageal reflux disease, depression and a lumbar spine condition) (R2 6-13).
There are numerous medical reports and other reports which attest to the fact that the Applicant suffers from these conditions.
The Tribunal finds therefore that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments attract an impairment rating of 20 points or more – section 94(1)(b) of the Act
Ischaemic heart disease
The Respondent contends:
36. In a letter dated 30 January 2013, Cardiologist Dr Johan Janssen states that the Applicant’s diagnosis is ischemic heart disease (T7/115). Dr Janssen notes the history of this condition as being:
(a)Inferior wall myocardial infarction 2006;
(b)Stent Fremantle Hospital;
(c)No reversible defect on thallium exercise test 2012 with good LV function.
37. A letter dated 18 April 2016 from Physician Dr Charlie Greenfield notes ischaemic heart disease with previous stent as one of the Applicant’s current conditions (T16/157).
38. In correspondence dated 4 May 2016, the Applicant’s GP, Dr Gerhard Beukes referred the Applicant for review of ischaemic heart disease (T18/160).
39. The Emergency Medicine Discharge Summary dated 14 May 2016 (T20/169) states that the Applicant presented with chest pain. The Applicant stated that he was known to Dr Janssan and was awaiting bypass surgery.
40. The Job Capacity Assessment (JCA) of 19 May 2016 found that this condition was not fully diagnosed, treated and stabilised on the basis that further tests had been proposed and surgery was a potential option (T21/173).
41. The hospital discharge summary following a coronary angiogram, dated 11 June 2016, stated the following:
Mr Mews was admitted to JHC for an elective angiogram for investigation of ongoing episodes of chest pain and worsening shortness of breath on minimal exertion. The angiogram showed significant mid-distal and distal LAD disease. Although the more proximal of these lesions would be amenable to angioplasty, the diffuse severe distal disease would mean questionable symptomatic benefit from stenting given that the distal disease is not amenable to angioplasty. We therefore uptitrated his angina therapy and started ISMN at 30mg.” (T24/183).
42. In a letter regarding the Applicant’s claim for DSP, Dr Beukes states:
“…cardiologist opinion was that coronary stenting in Ken’s case would more likely be of no benefit and best not attempted.”
43. The Secretary contends that the Applicant’s ischaemic heart disease condition was fully diagnosed, treated and stabilised by the end of the qualification period.
44. The Secretary further contends that the appropriate Impairment Table under which to consider the functional impact arising from the heart condition is Table 1. (R2 6-7)
Commentary in the AAT1 decision states
25. The tribunal considers the information at the time applicable to the claim for disability support pension under review gives no indication of any significant cardiac dysfunction. No cardiac disorder was stated in the medical certificate completed by Dr Beukes on 30 March 2016. The only prior definitive information was from Dr Janssen in January 2013, when Mr Mews cardiac status was indicated to have been satisfactory, if not good (and was fit for work as a vehicle operator). The first indication of active cardiac dysfunction relevant to the claim was in the referral to Dr Janssen by Dr Beukes on 4 May 2016. The referral stated Mr Mews had been having increasing trouble with shortness of breath. Mr Mews then attended the emergency department on 14 May 2016 and saw Dr Janssen one week later. Coronary angiogram was undertaken on 10 June 2016. Specific management was advised and commenced by the consultant who performed the procedure (Dr David Thomson).
There is no information regarding subsequent more definitive management by Dr Janssen, although the tribunal considers this was unlikely to be substantially different.
26. The tribunal considers the information now available indicates Mr Mews suffers from significant ongoing symptomatic ischaemic heart disease. There is no information regarding the extent of any cardiac failure. (T2 6-7)(R1)

The Tribunal notes contents in the Applicant’s Job Capacity Assessment (JCA) reports dated 19 May 2016 and 23 August 2016. (T21 170-17)(R1) and (T28 198-208)(R1)) The first report stated the Applicant’s condition of ishaemic heart disease was not FDTS. The second report made the same assessment on the basis that the Applicant was still undergoing further tests with the potential for surgery.
The Tribunal notes however at (T28 208)(R1), that the Applicant’s ishaemic heart disease was revised as permanent (FDTS) with an impairment rating of 5 points this was reflected in the ARO report at (T30 212)(R1).
The ARO stated:
With regard to the discharge summary dated 11 June 2016 I have decided that the condition ischaemic heart disease is fully diagnosed, treated and stabilised. This letter indicates significant functional improvement would not be expected within two years following surgery. (T30 213)(R1)
The Tribunal notes that the ARO indicated that he was unable to allocate an accurate impairment rating in relation to the Applicant’s ischaemic heart condition because he required further medical advice. He had tried to secure this additional information but was unable to make contact with the Applicant’s medical practitioner. (T30 213)(R1)
The Tribunal notes Dr Beukes’ report dated 17 July 2016, which states – “The most significant disability of late [sic] is Ken’s heart. Ken has known for a long time [sic] with significant ischaemic heart disease [sic]...” (T25 185)(R1)
The Tribunal notes the following statement of Dr Janssen dated 14 November 2017:
Mr. News is under my care for his heart disease. He has significant coronary artery disease which is inoperable and has to be treated medically. He is functional class III-IV New York Heart Association classification and I think therefore that he is not a candidate to return to the workforce. I trust you can assist him with this (A1)
The Tribunal notes Dr Beukes’ report dated 10 January 2018:
Thank you for your review. I have done previous reports explaining the seriousness of Ken's cardiovascular disease. The reports should all be in your file for reference. Dr Jansen, cardiologist, letter I understand should be among the reports. I will however explain the words based on his evaluation. The coronary artery Dr Jansen is referring to is the artery supplying the heart muscle of oxygen. This artery is severely blocked and can not be stented. This can only be treated with medication. Medication is only good enough at this age to slow progress but not much in the line of regressing the pathology. The New York Classification Dr Jansen refer to is a classification to help put a person's functionality in a comparable number. This classification has 4 levels, 4 being the worst. Ken was classified as being more than 3, but less than 4. 4 would have been short of breath just from sitting up. Based on the cardiologist opinion Ken is unfit for doing any work he is suitably qualified for. Because of this cardiology risk as explained by the cardiologist Ken has become unemployable and a risk no employer that want to employ him.
With this explanation Ken is fully diagnosed, fully treated and fully stabilised. (original emphasis) (A2)
The Tribunal notes Dr Janssen’s report dated 27 March 2018:
Mr. Kenneth Mews has been under our car since 2009 and I saw him last on 27 March 2018. Please find enclosed a copy of my last letter to his GP.
Mr. Mews has exhausted all diagnostic tests for his chest pains and sweating and we found that he has inoperable significant coronary artery disease which is not amenable for other treatment than the treatment he is currently on. He also has poorly controlled type I diabetes which caused also end organ damage despite the fact that he is on an insulin pump. On top of that he has treated hypertension and hypothyroidism.
In view of the limited treatment possibilities for Mr. Mews I wholeheartedly support his request for getting a disability pension as from the date that he was unable to work because of his complaints.
I know that his complaints started after his myocardial infarction in 2006, although he continued to have some work after that, but he was definitely no longer able to work after early 2016. (A4)
Whilst the Tribunal notes these reports, it is however mindful of the Qualification Period, being from the 30 March through to the 29 June 2016.
The Tribunal notes the Home and Community Care (HACC) assessment sheet and the Silver Chain consent to services. (A3) The HAAC assessment sheet of 2014/15 shows that the Applicant was “independent functionally” - although not definitive, this means that the Applicant could perform a variety of activities, including but is not limited to walking, handling his own money, shopping, cooking, laundry including ironing and grooming. (A3)
The Tribunal notes the evidence of the Applicant at the hearing that during the Qualification Period, whilst the Applicant had good and bad days, he was able to live on his own, ride his bike, drive his car and go on a weekly basis to the shops.
The Tribunal finds that there was further evidence before the Tribunal providing a more detailed medical assessment of the Applicant’s heart condition. This medical assessment however occurred after the Qualification Period. (A4)
The Tribunal notes commentary relating to Table 1 of the Impairment tables: “Functions requiring Physical Exertion and Stamina” in the Determination:
·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…
From the medical evidence before the Tribunal, the Tribunal finds that the Applicant’s condition of “ischaemic heart disease” was FTDS during the Qualification Period and generated a total of 10 impairment points. The Tribunal finds that during the Qualification Period, the Applicant was able to undertake the following functions – cooking, washing, home duties, using his bike and car, and doing his shopping on his own. The Tribunal accepts that the Applicant did some of these functions with difficulty (for example the Applicant experienced shortness of breath and tiredness), however, the Applicant was was not unable to perform such tasks. The Tribunal accepts that the Applicant could only walk short distances.
This assessment is supported by the Secretary’s submission:
58. Until the end of the qualification period, the Applicant lived alone in an isolated area, subsequently moving to be closer to health and other facilities. He reports an ability to cook, mobilise, drive to the shops and do a small amount of shopping, and does this independently. He has difficulty walking because of both his heart condition and nerve/circulatory problems in his legs.
59. Supporting medical evidence speaks to a restriction on activity and a need for assistance to clean his house. The Applicant was physically able to ride a high- powered motorcycle off-road (T33/221), however an accident involving same in November of 2016 left him with worsened respiratory symptoms. This occurred some five months after the end of the qualification period, but before the Applicant gave evidence to the AAT1 (R2 10)
Diabetes (mellitus)
The Respondent contends:(R2)
62. The Secretary agrees with the AAT1’s finding that the Applicant’s diabetes (mellitus) was fully diagnosed and fully treated, but not fully stabilised, within the qualification period.
63. This condition is longstanding, with the initial diagnosis of Type I diabetes having been made in about 1983 (T8/116).
64. In a letter dated 5 September 2015, diabetes educator Dr Cynthia Porter noted that a new replacement pump was set up for the Applicant (T11/119). This letter indicated limited control of the condition, but that adjustments were ongoing. Dr Porter noted:
“It is stressed that he must change his set and reservoir of insulin every 2 days.”
65. On 9 September 2015, Physician Dr Charlie Greenfield stated that the Applicant’s blood sugar was not controlled, despite being on an insulin pump (T12/121).
66 On 18 April 2016, Dr Greenfield noted that the Applicant’s blood pressure was significantly elevated. He also noted that blood sugar was reported to be “running at an average of about 15 with no hypos” (T16/157).
67. A letter from GP Dr Beukes to Dr Johan Janssen of Western Cardiology dated 4 May 2016 states that the Applicant’s diabetes control was mostly good since using the pump (T18/160).
68. A letter of the same date to Centrelink from Dr Beukes (T19/163) conflictingly states:
“He has increasing SOB, poor BP control, poor diabetes control.”
69. A letter from cardiologist Dr Johan Janssen dated 28 September 2016 noted that the doctor found that the Applicant’s diabetes was not well regulated at all (T31/218).
70. At the AAT1 hearing, the Applicant told the Tribunal that this condition had been well controlled with a new pump during the two months prior to the hearing (T2/7).
71 The Secretary contends that preferable view of the medical evidence is that, at the qualification period, the condition was not fully stabilised. The Applicant’s insulin pump had not been working effectively and “adjustments were ongoing”. His blood sugar levels were not controlled, however appear to have subsequently stabilised shortly before the AAT1 hearing with a new pump.
72. In the alternative, if the Tribunal finds that this condition is fully treated and stabilised, the Secretary contends that Table 15 the appropriate Impairment Table under which to assess the functional impairment arising from this condition.
73 There is no evidence to suggest that as at the qualification period, the Applicant had either rare episode of involuntary loss of consciousness or had episodes of an altered state of consciousness, one of which is required to meet a rating of 5 points under this Table. Further, there is no evidence of any restrictions on the Applicant’s driver’s licence due to this condition, another indicator of a 5 point impairment rating.
74. The Applicant’s use of an insulin pump further supports a rating of 0 points, as insulin pumps are used to reduce severe hypoglycaemia.
75. The Secretary contends that a rating of 0 points is appropriate, as the evidence available does not support a higher rating under Table 15. (R2 10-11)
Commentary from the AAT1 decision states – “The tribunal decided the diabetes mellitus condition, for the time of the claim under review, must be assessed as not fully stabilised. As a result, the tribunal did not allocate an impairment rating.” (T2 7)(R1)
The Tribunal notes the Applicant’s JCA reports of 19 May 2016 and 23 August 2016 (T21 170-17)(R1) and (T28 198-208)(R1)). These reports describe the Applicant’s this medical condition of diabetes mellitus as FDTS – “past present and ongoing medical intervention has stabilised condition.”
The Tribunal notes Dr Beukes’ report dated 4 May 2016 stating – “Diabetes control mostly good since pump.” (T18 160)(R1)
The Tribunal finds that the Applicant’s condition of diabetes mellitus was not fully stablished, as such, this condition is not allocated an impairment rating.
Diabetic peripheral neuropathy
The Tribunal finds that this condition is fully diagnosed and treated but not stabilised. The Tribunal notes the Respondent’s contentions:
76. On 22 August 2013, Physician in Endocrinology Dr Timothy Welborn stated that the Applicant was treated for “presumably a past painful neuropathy with low dose Lyrica” (T8/116).
77. A medical certificate dated 30 March 2016 stated that the Applicant suffered from this condition. The date of onset was listed as the same date as the certificate, and the condition was listed as temporary, with the symptom being chronic pain in the feet (T15/156).
78. The Secretary contends there is insufficient evidence to determine that the Applicant’s diabetic peripheral neuropathy was fully treated or stabilised within the qualification period. (R2 11-12)
Commentary from AAT1 states:
36. Dr Beukes, in the medical certificate completed on 30 March 2016, stated Mr Mews suffered from diabetic peripheral neuropathy. The doctor stated onset of the condition was on that date and that the condition was temporary (and was expected to affect Mr Mews’ capacity to work for less than three months). The doctor stated the current symptom was chronic feet pain. Lyrica, (anti-neuralgic medication) was listed by Dr Beukes on 16 January 2017 under “current medications”. The medication was not listed by the doctor on 4 May 2016 (or 17 July 2016).
38. Dr Timothy Welborn (physician in endocrinology), on 22 August 2014, stated Mr Mews was treated for “presumably a past painful neuropathy with low dose Lyrica”.
39. The tribunal acknowledges this serious complication of diabetes mellitus may cause ongoing distressing symptoms and impairment of function. However, the tribunal considers there is no other information (than as in the foregoing) and no detail regarding the condition. The tribunal considers the impact may diminish with better diabetic control and (specifically for the time of the claim under review) that specific medication must be viewed as having a role for control. In addition, the tribunal considers there may be a role for specialist opinion to assist with management. (T2 8)(R1)
The Tribunal notes the Applicant’s JCA report dated 19 May 2016 (T21 171) that describes the Applicant’s condition of diabetic peripheral neuropathy as temporary. This condition is not mentioned in the JCA report dated 23 August 2018 (T28 210-217).
On the evidence before it, the Tribunal determines this condition as not FDTS. Accordingly, the Tribunal does not allocate impairment rating to this condition.
Diabetic nephropathy (kidney disease)
The Respondent contends:
79. This condition was listed in the medical certificate of 30 March 2016. The date of onset was listed as the same date as the certificate, and the condition was listed neither as temporary or permanent, with the symptom being “pain renal loin” (T15/156).
80. Blood test results from 17 June 2016 indicated a moderate impairment to the Applicant’s renal function (T25/189).
81. The Secretary contends that there is insufficient evidence to consider this condition fully diagnosed, treated and stabilised during the qualification period. (R2 12) (R2 12)
The Tribunal notes the condition of diabetic nephropathy was mentioned as part of the Applicant’s medical history in a document that was dated 4 May 2012. (T19 164)There is no evidence of the Applicant receiving treatment for this condition from the 4^th of May 2012.
The Tribunal notes the condition of Diabetic nephropathy medical condition was alluded to on 30 March 2016 by Dr Beukes at (T15 156) (R1), and by Dr Greenfield on 18 April 2016 at (T16 157)(R1).
The Applicant’s JCA report dated 19 May 2016 (T21 171)(R1) described the condition as temporary. The condition is not mentioned in the Applicant’s JCA report dated 23 August 2016.
The Tribunal notes a medical report dated 5 April 2016 (T19 165)(R1) notes – “moderate chronic kidney disease may be present, suggest urine microalbumin ...”
The Tribunal finds that the Applicant’s condition of diabetic nephropathy was not FDTS during the qualification period.
Diabetic Maculopathy and proliferative retinopathy (eye disease)
The Respondent contends:
82. In a letter dated 26 May 2014, ophthalmologist Dr C. H. Chong stated that the Applicant’s vision was good, and that he had no active diabetic maculopathy and the periphery was free of neovascularisation. Dr Chong recommended yearly check-ups (T10/118).
83. A letter from GP Dr Beukes states that the Applicant’s past medical history includes right cataract, diabetic retinopathy, left cataract removal and IOL implant, left diabetic maculopathy and left vitreous haemorrhage (T25/186).
84. The Applicant told the Tribunal at the AAT1 hearing that his eyesight is now “hazy”. He could not recall his last review by an ophthalmologist, stating that it had not been “for a while” (T2/9). (R2 12)
The Tribunal notes the Applicant’s JCA report dated 19 May 2016 (T21 174)(R1) determined the Applicant’s condition of diabetic maculopathy and proliferative retinopathy as FDTS, adding that past interventions had stabilised the condition. The Tribunal notes that the Applicant’s JCA report dated 23 August 2018 reported an identical finding (T28 201)(R1).
The Tribunal notes the AAT1’s finding in (T2 9)(R1) – “…there was insufficient information to assess the ongoing visual symptoms as fully diagnosed, treated and stabilised..” The AAT1 arrived at this conclusion as the Applicant had not complied with annual checks and had not seen an ophthalmologist for some time. (T2 9)(R1)
The Tribunal supports the finding of AAT1 as the Tribunal finds there is no medical evidence which corroborates the condition as being FDTS. There is no evidence before the Tribunal to indicate any level of functional impairment.
Lupoid type arthritis (previously categorised as autoimmune disorder and osteoarthritis)
The Respondent contends:
88. The Applicant’s GP Dr Beukes listed autoimmune disease with an onset of 19 March 2012 and arthritis with an onset date of 2 July 2012 in his letter of 4 May 2016 (T18/161).
89. In his subsequent letter of 17 July 2016, Dr Beukes states that the Applicant had a history of arthritis and was having more trouble using his hands, particularly with fine motor functions (T25/185).
90. In the carer payment/allowance medical report completed on 6 February 2017, Dr Beukes stated that the Applicant suffered from “lupus affecting hands most” (T39/240).
91. The Secretary considers that there is insufficient information before this Tribunal to make an assessment that the Applicant’s lupoid type arthritis is fully diagnosed, treated and stabilised. (R2 13)
The Applicant’s JCA report dated 19 May 2016 (T21 172)(R1) assessed both conditions as FDTS and stated that the condition was – “…well managed and has no/ minimal impact on function…”
The Tribunal notes a similar assessment was made in the Applicant’s JCA report dated 23 August 2016 (T28 203-204)(R1), and that the Applicant was able to in respect to the condition of osteoarthritis – “pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.” (T28 203-204)(R1)
The Tribunal notes in respect to the condition of immunodeficiency the JCA report states – “There is no functional impact on activities requiring physical exertion or stamina” (T28 203)(R1)
The Tribunal determines the medical condition of “Lupoid type arthritis” as FDTS, with limited functional impact.
Rib and left clavicle fractures
The Respondent contends:
92. The Secretary contends that, in accord with the AAT1 decision, this condition cannot be considered for the claim under review, as the accident from which the condition resulted happened after the qualification period.
93. The Applicant gave evidence at the AAT1 hearing that he suffered injuries in a motorcycle accident in November 2016. The Applicant stated that he was due to have an operation for the left clavicle a month after the hearing (T2/10).
94. The Secretary notes that while the Applicant has provided evidence regarding this condition (T38/238; T41/246; T42/247), it postdates the qualification period, which ended on 29 June 2016. (R2 13)
The Tribunal accepts this condition is outside the Qualification Period which is from the 30 March 2016 to 29 June 2016.
“Other” Conditions
Whilst a number of other medical conditions including, hyperthyroidism, hypertension, elevated cholesterol, gastro-oesophageal reflux disease, depression and lumbar spine condition have been referred to, the Tribunal supports the Secretary’s contention that there is a lack of evidence for a proper assessment to be made in relation to these conditions.
Whether the Applicant has a continuing inability to work – section 94(1)(c) of the Act

The Tribunal finds that the Applicant has a total of 10 impairment points under the Impairment Tables and therefore fails to satisfy section 94(1)(b) of Act. Given this finding, it is not necessary for the Tribunal to consider section 94(1)(c) of the Act.
DECISION
For the reasons given above, the Applicant does not qualify for DSP. The decision of AAT1 is therefore affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Member C Edwardes

....(Sgd).......................................
Associate
Dated: 05 October 2018

Date(s) of hearing: 25/09/2018

Solicitors for the Applicant: Linda Moore, Community Legal Centre

Solicitors for the Respondent: Ashley Burgess, Sparke Helmore Lawyers

[2018] AATA 3734

5 October 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Jurisdiction

Statutory Construction

Appeal

Procedural Fairness

Date(s) of hearing:	25/09/2018
Solicitors for the Applicant:	Linda Moore, Community Legal Centre
Solicitors for the Respondent:	Ashley Burgess, Sparke Helmore Lawyers