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

[2024] AATA 734

Michael and Secretary, Department of Social Services (Social services second review) [2024] AATA 734 (12 April 2024)

Division:                  GENERAL DIVISION

File Number:          2023/3786

Re:Louis Michael

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:12 April 2024

Place:Sydney

The reviewable decision dated 10 May 2023 is affirmed. 

...............................[sgd].........................................

Mrs J C Kelly, Senior Member

CATCHWORDS

SOCIAL SECURITY – disability support pension (DSP) – whether the applicant qualified for DSP during the relevant qualification period – whether the applicant has a continuing inability to work – whether the applicant has a severe impairment rating of 20 points or more under a single Impairment Table – cervical and lumbo-sacral spondylosis and multiple discopathies – shoulder condition – interstitial lung disease / chronic obstructive pulmonary disorder – major depression – right knee/s – coronary artery disease – diabetes mellitus – constipation – bilateral sensorineural hearing loss – dizziness – cataract – thyroid disease – obstructive sleep apnoea – other conditions – reviewable decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011

Social Security (Active Participation for Disability Support Pension) Determination 2014

CASES

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

Re Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

12 April 2024

What this decision is about

1. Mr Michael  was born  in 1958 and was 64 years of age when he lodged his application for Disability Support Pension (DSP) on 25 July 2022. He suffers from many medical conditions. 

2. His application was refused on 1 February 2023. That decision has been effectively affirmed on review internally in the Department of Social Services on 1 March 2023 and then by the Social Services and Child Support Division of the Tribunal (AAT1) on 10 May 2023 (the reviewable decision).   

3. I have to decide whether Mr Michael satisfied the qualification criteria for DSP on the day he lodged his claim, 25 July 2022, or within 13 weeks after that date (24 October 2022) (the qualification period). That means that medical reports and other evidence that came into existence after that period are only relevant to the extent that the evidence is about whether Mr Michael satisfied the qualification criteria during the qualification period.[1]

   [1]  Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].

4. The qualification criteria are very specific and detailed. They are set out in subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) and the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables) and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination). 

5. The Social Security (Administration) Act 1999 (Cth) is relevant but because the effect of its provisions is not in issue, it is unnecessary to address it further.

6. Government policy set out in the Social Security Guide is also relevant and should be applied in the absence of cogent reasons to not follow such policy (Re Drake and Minister for Immigration and Ethnic affairs (No 2) (1979) 2 ALD 634 at 645).

   The relevant criteria

   Qualification criteria for Disability Support Pension

7. The relevant qualification criteria for DSP are set out in subsection 94(1) of the Act:

   94. Qualification for disability support pension–continuing inability to work

   (1)A 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.The person has a continuing inability to work;

   ii.The Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…

8. Points under the Impairment Tables cannot be assigned to a condition unless that condition is permanent which requires that the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated and stabilised and the resulting impairment must be likely to persist for more than two years (subsections 6(3), (4), (5) and (6) and (7) of the Impairment Tables).

9. If a condition is found to be permanent, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (subsection 8(1) of the Impairment Tables).

10. If an impairment falls between two impairment ratings, the lower rating is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (paragraph 11(1)(c) of the Impairment Tables).

11. The Impairment Tables set out very specific criteria for assessing the points to be allocated for the functional impact of a particular condition. For that reason, I set out the relevant tables in full, below.

12. A ‘severe impairment’ is one that attracts 20 points or more under a single Impairment Table (Section 94(3B) of the Act).

13. There is no evidence that Mr Michael has participated in the program administered by the Commonwealth known as the supported wage system. He does not satisfy section 94(1)(c)(ii) of the act.

    Why the Secretary claims that Mr Michael does not qualify for DSP

14. The Secretary contends that during the qualification period, Mr Michael did not satisfy the ‘continuing inability to work’ criteria in section 94(1)(c)(i).

15. ‘Continuing inability to work’ is defined at length in section 94(2) of the Act. 

16. There are two ways Mr Michael might satisfy this criterion. 

17. He would qualify if he had 20 points or more assigned under the Impairment Tables for two or more conditions and he had actively participated in a program of support (POS) (as defined in section 94(3B) of the Act).  

18. The Respondent’s position is that Mr Michael satisfies the total of 20 points or more for two or more conditions but he has not actively participated in a POS. 

19. The evidence shows that Mr Michael had not satisfied the POS requirement within the three year period prior to the date of lodgment of the DSP claim, that is 25 July 2019 to 24 July 2022.  He had started a POS but not finished it.  Mr Michael does not dispute that. 

20. There is also no evidence that he satisfied any of the exceptions to the requirement to have completed a POS, which are set out in subsections 7(3) to 7(5) of the POS Determination.

21. Therefore, to qualify for DSP, Mr Michael must have a severe impairment rating of 20 points or more under a single Impairment Table.  The Respondent’s case is that he does not have a severe impairment.

    Some abbreviations

22. The following abbreviations appear throughout the decision.

23. JCA - Job Capacity Assessment submitted 3 January 2023 which was prepared by a Registered psychologist with the assistance of an occupational therapist.

24. HPAUO - Health Professional Advisory Unit Opinion prepared by a medical doctor dated  28 February 2023

    The Applicant’s impairments

    Condition 1 – Cervical and lumbo-sacral spondylosis and multiple discopathies

25. There were many reports from various medical practitioners about Mr Michael’s cervical and lumbo-sacral spinal condition from 2010 onwards.  

26. In his medical report dated 19 March 2015, Specialist Neurosurgeon & Spine Surgeon Assoc/Professor James Van Gelder set out his opinion that Mr Michael’s back condition was unlikely to respond to conservative treatment and recommended surgery that was likely to result in symptomatic improvement. However, in his report dated 23 July 2015, Dr Dowla, Consultant in Neurology and Clinical Neurophysiology, reported that he had referred Mr Michael to A/Prof James Van Gelder who saw him on 11 March 2015 but the Applicant was not interested in surgery.  Dr Dowla described the Applicant’s symptoms of lower back pain, radiating to left hip and lower limb.

27. An Employment Services Assessment Report dated 21 September 2022 (the ESAR) was prepared by a registered psychologist. It  referred to a 2020 report of Dr Sakla and stated  that Mr Michael reported that he had trouble getting in and out of a truck and sitting for long periods. He reported his sitting endurance of 10 – 20 minutes. He had had physiotherapy treatment a long time ago and  was swimming about twice per a week.

28. In another report dated 1 March 2021, Dr Sakla reported that on 11/2020 there was an exacerbation of an existing condition, Advanced CX and LS spondylosis/multiple discopathies. The accompanying Health Summary Sheet printed on the same day records various cervical and lower spine conditions in 2009 and 2010.

29. Mr Michael said at the hearing, that his back condition is worse now. He lives alone. He stopped hanging out his washing two or three years ago. He uses a top loader washing machine and drives. He can put petrol in his car and carry two litres of milk and could put it in the boot of his car.

30. The Secretary accepts that the 25 September 2022 report of Dr Alameddin, General Practitioner (GP), established that Mr Michael’s lower back pain and cervical spine degenerative disease was fully diagnosed, fully treated and stabilised during the qualification period. Other reports by the same doctor dated 25 September 2022 and 15 December 2022 are to similar effect.

31. In relation to function, Dr Alameddin reported that walking was Mr Michael’s only exercise, however that was difficult due to chronic knee pathology and chronic back pain. The discharge summary dated 2 January 2023 reported that Mr Michael mobilised independently but that was limited by dyspnoea and back/hip pain.

32. I note that the HPAUO did not consider that the cervical and lumbar spine conditions had been fully treated or stabilised and that the functional impairment Mr Michael experienced was a combination of conditions, including chronic obstructive pulmonary disorder (COPD), single vessel coronary artery disease and Type 2 Diabetes Mellitus, which was appropriately assessed under Table 1 – Functions requiring Physical Exertion and Stamina.

33. In relation to his cervical and lumbar spine, the JCA reported that Mr Michael said that he took medication for pain relief and attended five sessions of physiotherapy in 2022 and would attend further sessions in 2023.  He advised that he also attends the local pool once a week where he does his own swimming and walking exercises.

34. The Secretary contended that Mr Michael’s back condition should be assigned no more than 10 points under Table 4 – Spinal Function.The criteria for 20 points are:

    There is a severe functional impact on activities involving spinal function.

    (1)The person is unable to:

    a)perform any overhead activities; or

    b)turn their head, or bend their neck, without moving their trunk; or

    c)bend forward to pick up a light object from a desk or table; or

    d)remain seated for at least 10 minutes.

35. The Respondent relied on the 21 April 2010 opinion of Dr Duckworth that Mr Michael will always have difficulty with overhead use of his arm and therefore assigned 10 points for that condition under Table 4.  I do not consider that to be the appropriate Impairment Table because the impairment arises from Mr Michael’s shoulder condition, not his spine. Dr Duckworth had operated on one of Mr Michael’s shoulders in 2009. The 2010 report was about the resulting function of the shoulder that had been operated upon, not the function of Mr Michael’s spine.  It would be appropriately considered under Table 2, Upper Limb Function.  Dr Duckworth did comment that Mr Michael’s biggest problem on the day he saw him appeared to be a disc prolapse affecting his right leg and also neck pain. He provided no further detail.

36. While there is much evidence about Mr Michael’s spine over a number of years, accepting that the condition is fully diagnosed, treated and stabilised, there is no medical evidence that suggests that Mr Michael satisfied any of the very specific criteria for a severe functional impact in Table 4 of the Impairment Tables.

    Condition 2 – Shoulder Condition

37. As I have found that the appropriate table for assessing the functional impact of Mr Michael’s shoulder is Upper Limb Function Table 2,  the following criteria must be satisfied for 20 points to be assigned.

    There is a severe functional impact on activities using hands or arms.

    (1)Most of the following apply to the person:

    a)the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;

    b)the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;

    c)the person has difficulty using a computer keyboard despite appropriate adaptations;

    d)the person has severe difficulty using a pen or pencil;

    e)the person has severe difficulty turning the pages of a book without assistance.

38. In his report dated 6 February 2023, Dr Alameddin referred to an examination of both shoulders, but only specifically refers to the left shoulder. His findings appear to refer to that shoulder. His diagnosis was acromioclavicular osteoarthritis. He wrote that management was conservative/ intra articular steroid infiltration, close monitoring, further surgical intervention may be necessary if condition worsens; permanent functional impairment.  He wrote that flexion, extension, abduction, adduction, internal and external rotation were associated with pain.

39. AAT1 referred to an MRI scan of both shoulders dated 11 March 2023.  Mr Michael told AAT1 that he has pain in both shoulders and that this has the greatest impact on his activities after his spine and knees. He had not seen a specialist for his shoulders.  

40. Even if it were accepted that Mr Michael’s shoulder condition has been fully diagnosed, treated and stabilised, there is no evidence, including Dr Duckworth’s 2010 report, that Mr Michael satisfies the criteria under Table 2 for severe functional impairment. 

    Condition 3 – Interstitial lung disease / chronic obstructive pulmonary disorder (COPD) Table 1 – Functions requiring Physical Exertion and Stamina  

41. Mr Michael suffers multiple conditions of the lungs. The terminology interstitial lung disease and COPD are used for simplicity. The impact of the various conditions on his function have not been distinguished, probably because they cannot be.

42. The Respondent accepts that Mr Michael’s Interstitial lung disease and COPD were fully treated and stabilised during the qualification period. That concession is supported by the ESAR, JCAR, Eligibility Assessment Recommendation for DSP (EAR) and HPAUO which in turn rely on the medical evidence, including the medical certificates of  Dr Alameddin dated 30 June 2022, 25 September 2022 and 15 December 2022 and of Dr Sakla dated 9 March 2022. The date of onset was 2020 according to Dr Sakla in his 1 March 2021 report which is consistent with Dr David Freiberg’s six month review of Mr Michael on 19 October 2021.  Dr Freiberg is a Consultant Physician, Respiratory and Sleep Medicine. He reported that Mr Michael denied exertional dyspnoea (difficult or laboured breathing) at that time. A report of an ‘HRCT Chest’ dated 11 February 2021 was addressed to Dr Freiberg.

43. In his report dated 1 September 2022, Dr Freiberg described the changes in Mr Michael’s condition since the previous year and the changes in medication he had made. His diagnosis was emphysema and respiratory bronchiolitis-ILD (a form of interstitial lung disease that occurs in smokers). Mr Michael was smoking 15 cigarettes a day.

44. Dr Freiberg wrote a report dated 25 October 2022. He described Mr Michael as a complex case and wrote that the key treatment was steroids and smoking cessation. He was going to check his progress in six months and noted that Mr Michael would see Dr Alameddin on a regular basis.

45. The ESAR found that the functional impact was poor concentration, dizziness and fatigue during the day. The JCA assigned 5 points under Table 1 – Functions requiring Physical Exertion and Stamina  because  Mr Michael had  shortness of breath with walking for more than 10 minutes.  He has a rest and continues walking.  The Respondent adopted that position.

46. In his certificate dated 30 June 2022 and his report of 25 September 2022, Dr Alameddin noted that Mr Michael suffered shortness of breath on exertion. In his report dated 6 February 2023 he stated that the Applicant suffered from exercise intolerance and difficulty walking long distances; and respiratory difficulty when exercising and walking up hill.

47. On 3 May 2023, Centrelink received the following handwritten note from Dr David Freiberg, Consultant Physician, Respiratory Medicine and Sleep Disordered Breathing:

    This man has severe lung disease from emphysema and pulmonary fibrosis and is unfit to work in any capacity permanently.

48. Unfortunately, Dr Freiberg did not address the criteria in Table 1.  

49. Mr Michael gave evidence that it takes time to change his bed sheets.  Every time he stands up, he has to sit down. He cannot use a vacuum cleaner for long.  He uses it with difficulty.  He does not use public transport. He sometimes goes shopping with his friend who helps him. He can go by himself if he does not have too much to buy. He can carry one shopping bag, for example if he buys a couple of cans of something or two litres of milk. He puts it beside him in the car although he could put them in the boot. He gets tired walking around a supermarket and has to sit down after 20 minutes. He does not stay long.

50. The HPAUO found that this condition was fully diagnosed, treated and stabilised and assigned 5 points under Table 1 - Functions requiring Physical Exertion and Stamina is the relevant impairment table. 

51. The Respondent contended that no more than 5 points should be assigned for this condition.   

52. Table 1 specifies that there is  a severe functional impact on activities requiring physical exertion or stamina.

    (1)The person:

    (a)usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

    (i)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

    (ii)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

    (iii)use public transport without assistance; or

    (iv)perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

    (b)has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

53. The corroborated evidence does not demonstrate that this condition satisfies the above criteria.

    Condition 4 -  Major depression

54. The relevant Impairment Table is Table 5 – Mental Health Function. The introduction states that ‘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)’.  

55. Dr Sakla, GP, provided similar information in his reports of 16 June 2016, 7 February 2019, 3 December 2020 and 1 March 2021.  Mr Michael suffered from  major depression.  His symptoms were poor concentration, mood swings, and chronic fatigue.

56. In his 6 February 2023 report, Dr Alameddin recorded anxious, irritable, lack of concentration and lack of attention, fatigue and tiredness. Counselling strategies, regular reviews and cognitive behaviour therapy and anti-depressant agent were used to manage the condition.  

1. The ESAR Report dated 21 September 2022, prepared by a registered psychologist, found that the condition was permanent.  

2. Other evidence was prepared after the qualification period and does not address the qualification period. A mental health plan was completed on 30 March 2023 with a review date of 30 April 2023. A report dated 31 May 2023 of Yusuf Acar, Provisional Psychologist, stated that the Applicant met the criteria for Major Depressive Disorder and severe anxiety in accordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM-15).

3. Mr Michael told AAT1 that he had been referred to a psychiatrist whom he had consulted four times.

4. Unfortunately, there has not been a diagnosis by an appropriately qualified medical practitioner, that is a psychiatrist or clinical psychologist, as required by the Impairment Tables, even after the qualification period. Neither Mr Acar, who signed the report, nor Ms Allaw, with whom it appears Mr Acar was practising, satisfy the criteria.

5. I am unable to consider this condition further.

   Condition 5 - Right knee/s  

6. On 28 January 2016, Dr George Konidaris, orthopaedic surgeon, diagnosed right knee arthritis with a medial meniscus tear.  He recommended a right total knee replacement and placed Mr Michael on a waiting list for surgery. Dr Konidaris remarked that Mr Michael can work in a sedentary job but his functional capacity to work in a more physical job is limited because of his knee osteoarthritis.

7. Mr Michael said at the hearing that COVID-19 prevented him having the surgery and he did not have it later on because he does not want to.

8. Dr Alameddin referred to the following treatment for this condition on 6 February 2023 – pain relief, exercise program, stretching, and non-steroid drug. He reported right meniscus tear.

9. The HPAUO summarised other evidence from Dr Alameddin to the effect that Mr Michael had pain in both knees on palpation and that the left knee appeared to have osteoarthritis and appeared to warrant an opinion by an orthopaedic surgeon about management. The HPAUO concluded that the condition was not fully treated and stabilised because Mr Michael  appeared to have potential options for surgery and opined that referred pain from the hip can cause lower limb pain and there was no radiological evidence of the hip or knees.

10. In relation to function, Dr Alameddin reported that walking was Mr Michael’s only exercise, however that was difficult due to chronic knee pathology and chronic back pain. The discharge summary dated 2 January 2023 about another condition, reported that Mr Michael mobilised independently but that was limited by dyspnoea and back/hip pain.

11. Even if Mr Michael’s right knee or both knees were considered to be fully diagnosed, treated and stabilised, the functional impact according to Table 3 – Lower Limb Function, cannot be determined on the evidence.

    Condition 6 -  Coronary artery disease 

12. Dr Fred N Nasser is a Cardiologist. He wrote a report dated 1 July 2022. Mr Michael complained of intermittent left and right sided chest pain and exertional dyspnoea. Dr Nasser organised coronary angiography and prescribed new and ongoing medications. His impression was that Mr Michael suffered from significant Left Anterior Descending artery (LAD) disease. The angiography report was dated 4 July 2022. Dr Nasser reviewed Mr Michael on 15 September 2022 and wrote a report of the same date. He had planned to schedule Mr Michael for stenting  (cardiac catheterisation) of the LAD which was done at Concord Hospital on 5 October 2022.  Mr Michael was prescribed various medications.

13. Dr Nasser reviewed Mr Michael on 26 October 2022. He prescribed two medications and wished to review Mr Michael in 6-12 months.

14. Mr Michael told the JCA that he attended that appointment and had another on January 2023. He was taking medications. He experiences fatigue and shortness of breath on exertion.

15. The JCA assessed this condition as not fully treated and stabilised because there was a lack of medical evidence outlining treatment, functional impacts and prognosis.

16. The HPAUO considered that this condition was fully diagnosed, treated and stabilised and effectively cured with a stent, with no functional impairment directly attributable to this condition.

17. Mr Michael mentioned at the hearing that his heart doctor told him he will have to have a battery under his skin to strengthen his heart muscle as tablets do not work.

18. I agree with the opinion of the HPAUO. There is no corroborating medical evidence that the further procedure Mr Michael referred to is needed. If it were, the condition would not be fully treated and stabilised.

19. No points are attributable to this condition during the qualification period.

    Condition 7 – Diabetes mellitus

20. On 16 June 2016, Dr Sakla reported that Mr Michael’s diabetes condition was permanent and was likely to deteriorate within 2 years. The impact on function was poor endurance.

21. In his 7 February 2019 report, Dr Sakla commented that it was an existing condition, there was ‘poor control’ and it was likely to deteriorate within 2 years. In his 1 March 2021 report, Dr Sakla repeated that it was poorly controlled and noted ‘poor endurance’ and it was likely to deteriorate within two years.

22. Dr Marwan Obaid is a Consultant Endocrinologist. He saw Mr Michael on 20 and 24 May 2022 in relation to his diabetes. Mr Michael’s treatment included medications and advice about controlling his diabetes. Dr Obaid noted a  marked improvement in glycaemic control and that Mr Michael noted better energy levels and wellbeing from 20 to 24 May 2022 because of a change in medication. His blood pressure was also better controlled.

23. However, on 6 February 2023, Dr Alameddin reported poor control in spite of proper counselling, education and treatment. The poor control related to Mr Michael’s lack of exercise due to his multiple chronic morbidities. Dr Alameddin reported that Mr Michael was under the care of an endocrinologist.

24. Dr Alameddin reported poor control in a medical certificate for the period 15 December 2022 to 26 February 2023.

25. The JCA described this condition as non insulin dependent.  However, that is not consistent with Mr Michael’s report to the JCA assessors that he was injecting insulin twice a day as well as taking medication, or with Dr Obaid’s 20 May 2022 report.

26. The JCA reported that Mr Michael’s blood sugar level remain high and he experiences fatigue.  

27. The JCA accepted that diabetes was fully diagnosed but there was a lack of medical evidence about treatment and functional impacts.

28. The HPAUO considered the condition fully diagnosed, treated and stabilised and attracts a nil impairment rating as there was no reported functional impact of the condition by Mr Michael’s endocrinologist who completed an online medical specialist fitness assessment driver licence report. 

29. There is a lengthy history of poor control of this condition, including after Dr Obaid’s report of improved control and function. The Respondent contended that there was insufficient evidence to find that the condition had been fully diagnosed, treated and stabilised.

30. Mr Michael is under the care of a specialist.  It is not apparent what more he can do by way of treatment. I would prefer to decide that there is a lack of medical evidence about the functional impact of diabetes. It seems that fatigue is a symptom, and therefore any functional impact would have to be considered with reference to other conditions that also affect Mr Michael’s Functions requiring Physical Exertion and Stamina (Table 1). There is no such assessment by an appropriately qualified medical practitioner.

    Condition 7 - Constipation

31. Dr Tady Kordian is a Consultant Gastroenterologist.  He wrote a report dated 15 September 2022 which set out a history of onset of constipation six months before and complaint of epigastric discomfort and burning sensation. He referred Mr Michael for investigation. On 29 September 2022, Dr Kordian gave Mr Michael a form to have a CT colonography to make sure there was no gross lesion in his colon ‘once he is cleared’ to have it. The procedure was delayed because of the stent operation on 5 October 2022 and stopping his antiplatelet for six months.

32. Mr Michael was admitted into emergency for this condition on 2 January 2023 because of mild abdominal pain and distension. A CT scan of the abdomen did not show any concerning findings.

33. This condition was not fully diagnosed, treated and stabilised during the qualification period.

    Condition 8 – Bilateral sensorineural hearing loss 

34. On 6 February 2023,  Dr Alameddin diagnosed bilateral sensorineural hearing loss, slightly worse in the right ear, and chronic dizziness. The doctor’s opinion was that Mr Michael was a strong candidate for hearing aids. An Audl Hearing Clinic audiometry report dated 19 January 2023 set out tests conducted on the same day.  Mr Michael reported one year since the onset of dizziness and reduced hearing.

35. The HPAUO did not consider the condition to have been diagnosed during the qualification period by an appropriately qualified medical practitioner with supporting evidence from an audiologist or Ear, Nose and Throat specialist. I accept that opinion. Therefore, no points can be assigned for this condition.

    Condition 9 – dizziness

36. Dr Alameddin referred Mr Michael for a Doppler Carotid – Neck because of his history of dizzy spells.  Age related atheromatous changes were found in carotid arteries bilaterally with multiple atherosclerotic plaques without any complete stenosis or narrowing. 

37. The HPAUO referred to that report dated 10 December 2022 which reported a clinical history of ‘dizzy spells’. The HPAUO concluded that there was no specialist referral to investigate the cause of the symptoms and therefore the condition was not fully diagnosed, treated and stabilised. 

38. I accept that opinion. No points can be assigned for this condition.

    Condition 10 – Cataract

39. On 3 June 2022, Dellwood Eye Care, Optometrist, reported that Mr Michael had a cataract and gave a referral for further imaging.  There is no other evidence about the condition.  The condition had not been fully diagnosed, treated and stabilised during the qualification period and there was no evidence of the functional impact on Mr Michael. No points can be assigned for this condition.

    Condition 11 – Thyroid disease

40. Thyroid disease, or endocrine system dysfunction, is longstanding.  Mr Michael had a repeat thyroid FNb (fine needle biopsy) in May 2016. Dr Sakla referred to Multinodular Goitre on 1 March 2021. In his medical certificate dated 30 June 2022, Dr Alameddin  notes that there is close monitoring of and regular medications for the condition. The ESAR assessor accepted it was permanent. The JCA reported that Mr Michael indicated nil treatment and he was attending a specialist review the next month. It concluded that Mr Michael has been diagnosed but not fully treated and stabilised. The HPAUO came to the same conclusion, after referring to a technetium scan dated 1 June 2022 which was mostly normal and noting the future specialist appointment.

41. Given Dr Alameddin’s evidence about monitoring and medications, I would prefer to consider this condition on the basis that there is no evidence of impact on any function and therefore 0 points can be assigned under the Impairment Tables.

    Condition 12 – Obstructive Sleep Apnoea (OSA)

42. General practitioner reports indicate that Sleep Apnoea was first diagnosed in March 2020 and was ongoing. Mr Michael denied using a Continuous Positive Air Pressure (CPAP) machine during the JCA and said that he was seeing a specialist every three months and it was likely he would need a CPAP machine in the future.

43. At the hearing, Mr Michael said that he was going to do a sleep apnoea check. He did one two or three years ago. 

44. There is a lack of medical evidence to indicate that any treatment has been provided for this condition during the qualification period. It has not been fully treated and stabilised. No points can be assigned for this condition.

    Other conditions

45. Other conditions are mentioned in the medical evidence: fatty liver disease, hypertension, dyslipidaemia, bilateral inguinal repair, and gastro-oesophageal reflux disease. The references to the other conditions lack sufficient detail to determine whether they are fully diagnosed, treated and stabilised during the qualification period. Zero points can be attributed to those conditions.

46. A report from Robert C Claxton, Consultant General Surgeon dated 5 July 2023 certified that he had excised a lump from Mr Michael’s left hand under local anaesthetic on that day, which is outside the qualification period and not relevant to this decision.

    Conclusion

47. Unfortunately, the medical evidence does not satisfy the very particular criteria in the Impairment Tables, with the result that Mr Michael did not qualify for DSP during the qualification period.

    DECISION

48. The reviewable decision dated 10 May 2023 is affirmed. 

I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

.................................[sgd].......................................

Associate

Dated: 12 April 2024

Date of hearing:	7 February 2024
Date final submissions received:	9 February 2024
Applicant:	In person
Solicitors for the Respondent:	Ms S Navaratnam, Services Australia