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

Miller and Secretary, Department of Social Services (Social services second review) [2019] AATA 1531 (28 June 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3272
Re:Shane Miller
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:28 June 2019
Place:Adelaide

The decision under review is affirmed.
.............[Sgnd]........................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – pensions, benefits and allowances – claim for disability support pension rejected – whether applicant engaged in program of support – exemptions – decision under review affirmed
LEGISLATION
Social Security Act 1991
Social Security (Administration) Act 1999
CASES
Baxter and Secretary, Department of Social Services [2017] AATA 1544
Du and Secretary, Department of Social Services [2018] AATA 1824
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
SECONDARY MATERIALS
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011
REASONS FOR DECISION
Senior Member B J Illingworth
28 June 2019
INTRODUCTION

This is an application by Mr Shane Miller (“the Applicant”) for review of a decision of the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) dated 20 April 2018, affirming the decision of an Authorised Review Officer (“ARO”), namely that the Applicant was not entitled to receive a Disability Support Pension (“DSP”).
In the hearing before me, the Applicant appeared unrepresented. The Respondent was represented by Mr Oliver Morris from the Department of Human Services.
BACKGROUND
The Applicant was born in 1979 and is currently aged 39 years.
Prior to his current injury, he was a carpenter working in commercial and domestic construction.
The Applicant suffered a nerve entrapment of the right anterior interosseous nerve (“upper limb condition”), caused by overworking repetitive strain from vibrating tools. Consequently, he had no feeling in, and could not pick things up with, his right hand. He underwent surgery in 2004 but has had ongoing problems since that time and has never been symptom-free.
Dr Leyden from Northern Neurology provided a report dated 11 October 2016[1] in which he described the Applicant’s upper limb condition as “quite severe” and that his function is unlikely to change with medication. Dr Leyden later diagnosed the condition as permanent severe neuropraxia of the median nerve, which condition is stable and does not respond to any medication or other treatment.[2]
[1] Exhibit A, T Documents, page 269.
[2] Ibid, page 270.
This condition has varied in severity over time and, for the first four years after surgery, the Applicant described the condition as bad to varying degrees until about 2008 to 2009. After that time, the condition stayed the same. WorkCover tried to return the Applicant to work on light duties, but the condition was aggravated as a result. The Applicant came off WorkCover in around late 2008 or early 2009, and he subsequently applied for DSP in 2010.
The Applicant’s first application for DSP was initially rejected. The Applicant then appealed that rejection to the Tribunal and was ultimately successful. The Applicant ceased DSP two years later. In the interim, he had trained as an aged care worker and did a work placement. He was employed at a care centre from September 2012 to November 2013. He did not undertake any heavy labour work as part of his duties in that employment.
In about November 2013, the Applicant started having bladder issues (“urinary condition”) and, as a result, stopped work. His upper limb condition at that time was not as severe, but he began to suffer constant pins and needles. His upper limb condition deteriorated about 6 to 12 months after his urinary condition developed. At that time, the Applicant still had chronic pain but was able to move his fingers and there was no paralysis present.
However, after the deterioration in late 2014 to 2015, the upper limb condition became “really bad”. The paralysis in his hand returned and was more intense and frequent in occurrence. The pins and needles were more predominant than they had been before. He had reduced movement in his fingers. His condition has remained the same since this time and the Applicant continues to suffer from constant pain.
He has not had an operation since 2004.
On 22 November 2016, the Applicant lodged a claim for DSP. The provisions in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the “Administration Act”) mean that the Applicant’s qualification and impairment ratings must be determined as at the date of his claim. The only exception is where he is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging his claim (“the Qualification Period”).[3]
[3] See Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922; Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404.
Hence, the Qualification Period for the purpose of assessing the claim was 22 November 2016 to 21 February 2017.
On 11 February 2017, an employee of Centrelink decided to reject the Applicant’s DSP claim (“the original decision”). The Applicant then requested an internal review on 31 May 2017.
On 1 March 2018, the ARO affirmed the original decision, namely that the Applicant was not qualified to receive DSP.
The Applicant applied to the AAT1 for review of the ARO’s decision.
On 20 April 2018, the AAT1 found that the Applicant:
(a)suffers from a fully diagnosed, treated and stabilised condition of the right arm, neuropraxia, and was assigned 10 points under Table 2;
(b)suffers from a fully diagnosed, treated and stabilised condition of urethral stricture, and was assigned 10 points under Table 13; and
(c)had not, in the 36 months preceding his claim, engaged in a program of support.
and, as none of the exceptions applied, it followed that the decision of the ARO is affirmed.
On 15 June 2018, the Applicant applied to the General Division of the Administrative Appeals Tribunal (“AAT2”) for a review of the AAT1’s decision.
The Applicant did not take issue with the AAT1’s decision with respect to his urinary condition and the assessment of 10 points. His complaint was directed to the assessment relating to his right arm neuropraxia, which he said was insufficient. His argument was that he qualified for an assessment of 20 points under Table 2.
THE LEGISLATIVE FRAMEWORK
The legislation relating to qualification for DSP, and the reference to the Impairment Tables, is set out in the provisions of s 94(1) of the Social Security Act 1991 (“the Act”), which relevantly reads:
94     Qualification for Disability Support Pension
(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.
…
A 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.
It follows that if the Applicant has a “severe impairment” within the meaning of s 94(3B) of the Act, namely, an impairment which attracts 20 points or more under a single Impairment Table pursuant to the Determination, then he does not need to have participated in a program of support.
If the Applicant is assigned 20 points under the Determination, but does not have a severe impairment as defined by s 94(3B) of the Act, then the Tribunal must be satisfied that the Applicant has met the requirements of the program of support as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
Section 94(1)(b) of the Act specifically refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” is defined as “a medical condition” pursuant to s 3 of the Determination.
The Determination requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of ss 6(4), (5) and (6) of the Determination:
6 Applying the Tables
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is 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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note: For reasonable treatment see subsection 6(7).
Subsection 6(7) states that for the purposes of subsection 6(6), reasonable treatment is treatment that is:
(a)Available at a location reasonably accessible to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.
The information to be taken into account in applying the Impairment Tables are provided pursuant to s 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
Information that must not be taken into account is referred to in s 8 of the Determination:
8Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
It is important to note that in assessing any medical evidence concerning the functional impact of the Applicant’s impairments provided after the Qualification Period, the reports can only be considered if they “cast light on” the functional impact of the impairments as at the Qualification Period.[4]
[4] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
With respect to functional impact, one must appreciate the purpose of the Determination. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5], Senior Member Isenberg helpfully explains the operation of the Impairment Tables in that:
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.
It is also important to only assign a single rating for a common or combined functional impairment as prescribed by subsections 10(5) and (6) of the Determination:
10 Multiple conditions causing a common impairment
(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 this would result in the same impairment being assessed more than once.
However, if a single condition causes multiple impairments, each impairment should be assigned a rating and assessed under the relevant Table.[5]
[5] The Determination, s 10(3).
ISSUES
The Respondent concedes that the Applicant satisfies s 94(1)(a) of the Act in respect of both conditions, but submits that it is unclear whether the Applicant satisfies s 94(1)(b) of the Act, and that the Applicant does not satisfy s 94(1)(c) of the Act.
Therefore, the issues for the Tribunal are whether, during the Qualification Period, the Applicant:
(a)had an impairment rating of at least 20 points under the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (“the Determination”) in accordance with s 94(1)(b) of the Act; and
(b)had a continuing inability to work in accordance with s 94(1)(c) of the Act.
THE APPLICANT’S EVIDENCE
Right Arm Neuropraxia (upper limb condition)
The Respondent concedes that this condition was fully diagnosed, treated and stabilised within the Qualification Period, but submits that the condition cannot attract an impairment rating of 20 points under Table 2.
Neuropraxia is a temporary loss of motor and sensory function due to the blockage of nerve conduction. The Applicant stated he experiences neuropraxia more than once a day varying in duration from 30 seconds to a couple of hours, but that he has not had more than 30 minutes at a time where the paralysis is not present.
The Applicant stated he experiences pins and needles constantly and it is just the severity of the pins and needles that have changed over the years. Nonetheless, he tries to move his hand and keep it mobile.
After his surgery in 2004, he underwent intense physiotherapy and it was recommended that he keep the hand mobile. He uses his left hand for manipulating knives and forks. He will use his right hand as a support. He gave the example of eating a hamburger where he will grasp the hamburger with his left hand and place it into his right hand which can then help support it while he is eating. He said that 95% of the time he is left handed.
Carry and move objects
The Applicant has difficulty carrying and moving objects as he cannot pick up things in his right hand, and particularly not straight away. He can pick up a cup with his left hand and place it into his right hand, but he cannot use the right hand alone to pick up a cup. He now does everything with his left hand. He can use his right arm to push and displace items using his forearm.
It is the wrist and fingers of his right hand that causes trouble manipulating and moving objects.
Writing
The Applicant cannot write with his right hand. The Applicant provided photographs[6] of his various hand and wrist braces, particularly one that tied with a lace which he had modified to fit a pen so that he could write. Now, however, he uses his left hand to write and describes this as being very difficult. He is not left handed.
[6] Exhibit E.
He no longer uses the lace up wrist brace, but a Velcro brace that he recently acquired which is more comfortable and does not sweat as much.
Using a keyboard
In about 2007, when on WorkCover, the Applicant enrolled in an audio engineering course. He did that course for six months but then withdrew because he was not able to use a computer, and turning and pushing knobs and sliders on the recording equipment became difficult.
The Applicant stated that using a keyboard for typing is difficult. He would use his “pinky” finger on his right hand but the pins and needles flared up more when he did this, which was discomforting. He would often accidentally hit other keys. The Applicant also has difficulty operating the computer mouse as he cannot direct it. He can use the mouse with his left hand but he finds this time-consuming.
Getting dressed

The Applicant said he finds it difficult to dress himself. He dresses himself using his left hand. He now wears elasticated pants and track pants because they are easy to get on and off. He does not tie shoelaces. He now wears shoes that are slip on or tie with Velcro. He does not wear belts and avoids trousers with buttons.
His daughter, who is 18 years of age, or his partner, will help when necessary. The Applicant uses his left hand (solely) to put on his socks and brush his teeth. He puts off shaving and doesn’t wash dishes. He loads the dishwasher with his left hand.
The washing machine and dryer are at waist height and he uses his left hand to place the clothes on the air dryer. He can slide papers around on a flat surface with his right hand but he cannot turn the page of a book with that hand. He said that it is mainly his thumb, index and middle finger that are affected by the condition.
Other
The Applicant was taken to a number of photographs[7] produced by the Respondent which were before the Tribunal. One such photograph appeared to show the Applicant playing an electric guitar. The strap of the guitar was over his left shoulder and he was holding the neck of the guitar in his left hand. It appeared that the Applicant had taken a “selfie” photograph using a mobile phone held in his right hand. That manoeuvre of taking the selfie photograph (“selfie”) was inconsistent with the limited use the Applicant said he had of his right hand.
[7] Exhibit G.
The Applicant produced a photograph[8] in response which had been taken by his partner demonstrating how that “selfie” had been taken. That photograph depicted the Applicant holding the guitar as described with his right arm outstretched, but with his daughter kneeling in front of him holding a mobile phone and taking the photograph from the position of his right hand.
[8] Exhibit E.
The Applicant said that the “selfie” was taken at the suggestion of his daughter so that it could be uploaded on social media. He said that he did not manipulate the mobile phone to take the “selfie”. The Applicant said that he has not played his guitar since 2003; he has purchased guitars since that time such that he is now a collector rather than player of the instrument. When pressed as to why in 2017 he would have a “selfie” taken of him apparently playing a guitar when he has been unable to do so from 2003, his explanation was that his daughter suggested he do it. He said at the time he would have been wearing his lace up wrist brace or perhaps a Velcro brace.
It was put to the Applicant that, even if his daughter wanted a photograph of him apparently playing the guitar, it is difficult to see why there was a need for the photograph to be uploaded as if the Applicant was taking a “selfie”. When asked by the Tribunal if there was any reason, his only explanation was that his daughter had suggested it and he did not decline.
The Applicant was also taken to the other social media photographs, in particular one depicting him in a toy department of a department store wearing a T-shirt and shorts and a large panda head. He had both arms stretched out from either side his body slightly above the horizontal giving a similar appearance to the letter “T”. His hands were slightly cocked at the wrist pointing in a downward position. There seems to be no difference in his ability to present that manoeuvre between his left and right hand and he was not wearing a wrist brace. The Applicant produced a different photograph taken that same day in which he was wearing a large “bunny” head. In this particular photograph, his right arm is by his side and he is wearing a wrist brace. He said that this photograph was taken on the same occasion when he and his partner were shopping at Kmart. The clothing depicted in both photographs was the same. He said that he will, from time to time, take off his brace to give him some short relief from the sweating and general discomfort that comes from wearing it.
The Applicant was shown a photograph dated 20 July 2018 which depicted him holding a dog with his left arm wrapped around the dog’s upper body and his right arm supporting the dog from its bottom. It is not apparent from that photograph whether the Applicant was wearing a wrist brace. He said that the photograph was taken at a soccer ground. He said the dog came up to him and he knelt down to allow the dog to jump up. He supported the dog’s bottom with his right hand and stood up. He held that position for only five or six seconds so that the photograph could be taken. He acknowledged that it could be possible that he was not wearing the brace on this occasion as there are times when he does not wear a brace because he will take it off to relieve discomfort.
The Applicant also produced other photographs showing a tens unit which he uses to help stimulate nerve and relax muscles. He purchased it in 2003 prior to his surgery. He has not used it since 2006, but stated that he just wanted to supply evidence of the fact.
A photograph in which the Applicant appears to be holding an item shaped like a mouthguard, he said, depicted therapy putty which he uses to assist with the fine motor skills of his fingers. He squeezes it and manipulates it in the same way one does a stress ball. He also had a photograph of a stress ball. The Applicant claimed it helps keep his left hand strong because he is not left hand dominant.
Urethral stricture (urinary condition)
The Respondent concedes that this condition was fully diagnosed, treated and stabilised within the Qualification Period, but submits that the condition cannot attract an impairment rating of 20 points under Table 13.
In November 2013, the Applicant started to suffer from urinary retention. He is required to self-catheterise. He tried two catheters which did not work. He tried a super-pubic catheter, had multiple tests including a cystoscopy, and had a bladder neck incision in May 2015. The side effects of this condition include retrograde ejaculation and poor urinary stream.
Self-catheterising can take anywhere from 10 to 15 minutes to 45 to 60 minutes. He has to try and rest his genitals on his right hand and insert the lignocaine catheter with his left hand. On average, he does this two to four times a week.
CROSS EXAMINATION
There is no condition affecting the Applicant’s left hand. He uses that hand to self-catheterise, get dressed, put on socks, and perform other tasks. When asked how he wears his watch, the Applicant replied that he keeps it on his wrist most of the time but uses his right “pinky” finger to take it off if required. His left hand is fully functional.
The Applicant was referred to the AAT1’s decision which said that the Applicant stated “he was right hand dominant and cannot use his right arm and that he has to do everything left-handed. He cannot do buttons, zips and belts. He can use a computer using his left hand.” [9] The Applicant said he believed he said in evidence that it was his right hand, wrist and forearm that was the problem, because he is able to move his bicep and shoulder. He did not believe he said his arm as a whole was affected. He said this was also the case at the time of the claim for DSP.
[9] Exhibit A, T Documents, page 4.
He said can use his right hand a little when he is not suffering the effects of paralysis.
The Applicant was then referred to the handwritten response to Centrelink’s decision to reject the claim. In that document, the Applicant stated “My nerve/hand/lower arm condition has rendered my right hand/lower right arm non-functional.”[10] The Applicant clarified that it was non-functional from a work perspective. The document was written by his daughter and signed by her.
[10] Ibid, pages 250 -253.
The Applicant said he had written a rough draft of this letter which he then dictated to his daughter. He agreed he wrote a four page draft with his left hand, although it took him some time and was done with great difficulty.
The Applicant was referred to his Mental Health Assessment and Plan – Patient Assessment[11] in which he listed music as a hobby. The Applicant said he used to play the drums. That stopped when he was a teenager. He cannot now mix music. He only listens to music. That is what he meant when he referred to music being a hobby.
[11] Ibid, page 235.
The Applicant stopped playing guitar in 2003. He had picked it up a couple of times when working as a care worker. He then could play for 20 to 30 minutes; he had more movement then, although he could not use the pick properly. He disagreed with the suggestion that he has played since that time.
The Applicant was then referred to the Job Capacity Assessment Report dated 20 December 2016 (“JCA Report”),[12] and particularly under the heading “Work Capacity the Baseline Work Capacity” which concluded that the Applicant’s work capacity was reduced to 8 to 14 hours per week, with capacity for work increased to 15 to 22 hours per week within two years with intervention.[13]
[12] Ibid, pages 170 – 179.
[13] Ibid, at page 177.
The Applicant was then asked why Dr Nguyen had listed urinary retention as the only condition affecting his capacity to work in earlier medical certificates.[14] The Applicant said he later got Dr Nguyen to include his upper limb condition in his medical certificates.[15] He said that Dr Leyden and Dr Lim dealt with the upper limb condition, and Dr Nguyen dealt with the urinary condition, although he has known about the Applicant’s upper limb condition for the past four years. To that extent, the Applicant said that Dr Nguyen had made an error by not including the upper limb condition when listing the conditions affecting his capacity to work in the medical certificates.
[14] Exhibit D, pages 1 - 3.
[15] Ibid, page 4.
Dr Lim has been the Applicant’s general practitioner since birth and it was Dr Lim that sent him to see Dr Leyden. The Applicant saw Dr Nguyen because he was closer, although he has only seen him a few times.
The Applicant was asked about the “selfie” and why the photograph depicting his daughter taking the “selfie” was taken. The Applicant said that photograph was staged and taken by his partner to show how the “selfie” was taken. The Applicant maintained the photograph was taken at his daughter’s suggestion. He has not played the guitar for 14 years and denied that the photograph was posted because he is still playing the guitar.
The Applicant also reaffirmed the manner in which the photograph with his dog was taken.
He added that his dog weighed 7.7 kg two months prior to that photograph being taken, and was 17 kg in December 2018. He estimated the dog to weight about 9 kg in that photograph. The Applicant said that he would hold objects, like empty cardboard boxes, the same way as he would hold the dog. He can hold a box weighing up to 9 kg.
The Applicant’s partner uploaded the photograph of him holding the dog on social media. He acknowledged he was not grimacing, as if in pain, in the photograph. He was on pain relief at the time, namely Panadeine Forte, to reduce the severity of pain.
In relation to getting dressed, the Applicant confirmed he puts his socks on with his left hand and does a zip up with difficulty. A belt is difficult. He does not wear shirts with buttons. He cannot do a zip up with his right hand.
The Applicant said it took weeks to fill out the Administrative Appeals Tribunal application form. In relation to his application for an extension of time to file that application,[16] he acknowledged it was in his hand writing on the form. He also acknowledged that he had made handwritten notes and commentary with underlining on the JCA Report.[17]
[16] Exhibit F.
[17] Exhibit A, T Documents, at pages 180 – 187.
He said he wrote the documents left handed and with difficulty. He didn’t ask his daughter to help because she has TAFE commitments. He is not ambidextrous. He said he has taught himself how to write with his left hand. The notes on the JCA Report[18] were only short notes. The four page rough draft from which his daughter wrote the response to the original decision of Centrelink took months to write. His daughter handwrote it and she improved the way it read. With a rough draft, there was something she could refer to. The Applicant does not type because he does not have a computer. His partner typed his Statement of Facts, Issues and Contentions. He did not ask her to type the four page letter because she has a life and a child at school.
[18] Ibid.
The Applicant said that when he was able to work, he sought work.
Five interventions were identified in the JCA Report.[19] The Applicant did not enter the Disability Employment Register because he was not referred to disability support. He was only referred to disability support in December last year. He said the Department was “slack”. He has not undertaken the intervention as recommended.
CLOSING SUBMISSIONS
[19] Ibid, pages 170 – 179.
Applicant’s submissions
The Applicant stated that the matter has dragged on for some time, and that he would like the issue to be resolved as it has been stressful for him for the past two and a half years. The Applicant submitted that the severe descriptors under Table 2 apply to him, in particular (1)(b), (c), (d) and (e), as Dr Lim has stated that his hand is not useable from an employment perspective[20] and he has demonstrated the difficulties referred to in those descriptors. Accordingly, he is not required to undertake the program of support.
[20] Exhibit C.
The Applicant stated that Dr Lim’s opinion in relation to work was made after he undertook other work and therefore was based on the belief that he had an inability to be employed in the workforce generally and not just as a carpenter.
Respondent’s submissions
The Respondent conceded that an impairment rating of 10 points under Table 13 was a fair assessment of the Applicant’s urinary condition. The Respondent submitted that the urinary condition cannot attract a rating of 20 points, and that the Applicant conceded this.
The question, therefore, is whether the Applicant’s upper limb condition can be assigned an impairment rating of 20 points under Table 2, given the Applicant has not completed a program of support.
The Respondent submitted that the most recent reports of Dr Leyden and Dr Lim refer to the Applicant’s ability to work more generally.
The Tables are to be taken to operate from a holistic point of view. In the Respondent’s submission, the descriptor (1)(b) under the moderate functional impact in Table 2 talks of picking up a light but bulky object requiring the use of two hands together. In the cases of Du and Secretary, Department of Social Services[21] and Baxter and Secretary, Department of Social Services,[22] Senior Member Stefaniak stated that Table 2 refers to functional ability generally and noted that a person can have full use of one arm and hand and not any use of the other and still have significant abilities to do the activities listed in the descriptors. The functional ability of each hand is not to be considered separately unless it is so specified.
[21] [2018] AATA 1824.
[22] [2017] AATA 1544.
In its Statement of Facts, Issues and Contentions, the Respondent accepted that the upper limb condition was fully diagnosed, treated and stabilised, but made no submission as to whether the Applicant should be assigned 5 or 10 points for his upper limb condition; only that the Applicant should not be assigned 20 points. This is relevant because the Applicant has not completed a program of support and will be exempt from doing so if a condition attracts an impairment rating of 20 points. To qualify for 20 points, a person’s condition must have a severe functional impact on activities using hands or arms, and most of the descriptors referred to in the severe category of Table 2 below must apply to the person. Hence, as there are five descriptors, a person must satisfy at least three out of five descriptors referred to in the Table 2 below:

Points Descriptors

20
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.

In relation to (1)(a) above, the Applicant has full use of his left arm and no amputations. In relation to (1)(b) above, the Applicant is able to pick up and move objects with his left hand. The Respondent submits that the “selfies” taken are wholly inconsistent with (1)(b) and that the manner in which the Applicant suggests the “selfies” were taken is wholly improbable. In relation to (1)(c), the Applicant concedes that a one-handed keyboard could be used. In relation to (1)(d), it is accepted that the Applicant may have some difficulty in writing with his left hand however, with reference to the Applicant’s admission that he wrote a rough draft of an application over a period of months and marked up a copy of the JCA Report, it is unlikely that the Applicant has severe difficulty in doing so. In relation to (1)(e), the Applicant is able to turn the pages of a book with his left hand.
The Respondent submitted that if 1(a) was satisfied, then every other category must be satisfied.
In order to attract an impairment rating of 10 points, the Applicant must satisfy four out of the six following descriptors for moderate functional impact in Table 2 below:

Points Descriptors

10
There is a moderate functional impact on activities using hands or arms.

(1) The person has difficulty with most of the following:

(a)    picking up a 1 litre carton full of liquid;

(b)    picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);

(c)    holding and using a pen or pencil;

(d)    doing up buttons or tying shoelaces;

(e)    using a standard computer keyboard;

(f)    unscrewing a lid on a soft-drink bottle.

In relation to (1)(a) above, the Applicant is able to do this with his left hand. In relation to (1)(b), the Applicant is able to pick up his dog, albeit with difficulty but not impossibly. Therefore, it is arguable that this criterion is met. In relation to (1)(c), the Applicant has difficulty writing with his left and right hand, albeit it is not impossible. Therefore, it is also arguable that this criterion is met. In relation to (1)(d), the Respondent concedes this criterion is met. In relation to (1)(e), the Applicant does not have a computer, however it is possible to conclude that using the left hand would be difficult given the Applicant is not left handed. In relation to (1)(f), it is consistent with the medical evidence provided that the Applicant would have difficulty performing this task.
Therefore, it is possible that five out of the six descriptors are met.
The Respondent submitted that as the Applicant cannot be attributed 20 points for any one condition, and he is not exempt from completing the program of the support. The Applicant has not completed such a program. Therefore, the issue of whether the Applicant has a continuing inability to work does not need to be considered. In any case, the Applicant has not attempted to engage in suggested interventions or further retraining as contained in the JCA Report to increase his capacity to work, which was estimated to be 15 – 22 hours per week within two years with intervention.[23]
[23] Exhibit A, T Documents, at page 177.
Further, the Respondent submits that there are no objective observations, tests or corroborative evidence concerning the Applicant’s functional ability of his right wrist and hand. All evidence is, or is reliant upon, the Applicant’s self-reporting. That is insufficient.

The Respondent submitted that the reports of Dr Leyden and Dr Lim were of little assistance to the Tribunal in being satisfied that the Applicant’s condition was fully diagnosed, treated and stabilised during the Qualification Period.
The reports of Dr Leyden are dated 11 October 2016 and 5 December 2016.[24] They confirm that the Respondent suffers from severe neuropraxia but also note the absence of any abnormality in any MRI scan of the neck and ultrasound of the nerves. In his two line report of 5 December 2016, Dr Leyden opined the condition is stable and does not respond to any medication or other treatment, however he provided no detail about the medication or other treatment received or any objective assessment of the Applicant.
[24] Ibid, pages 269 – 270.
In his report of 5 November 2018,[25] Dr Leyden reported that the Applicant’s condition is fully diagnosed, treated and stabilised and that there will be no possibility of improvement. However, that opinion expressed is based upon reports by the Applicant to him of his condition rather than an expression of opinion based on his own observations. In any event, it is not referable to the Qualification Period.
[25] Exhibit D, page 17.
Dr Lim provided a report dated 11 November 2018.[26] He stated that the Applicant’s condition has not improved since 2004. He reports the Applicant is not able to use his right hand in any useful capacity from an employment perspective. He opined that it is futile to make him look for work and that he is unable to use his right hand for daily activities. Dr Lim supports the Applicant’s application for DSP. However, this report is nearly two years outside of the Qualification Period and, in circumstances where between 2004 and 2018 the Applicant had returned to work at an aged care facility and had some use of his right hand during that period, the Respondent submitted that the Tribunal should not rely on Dr Lim’s report.
[26] Exhibit C.
CONCLUSION
The Tribunal notes the concession made by both the Applicant and the Respondent that the assessment of 10 points with respect to his urinary condition is a fair and appropriate assessment. The Tribunal has nonetheless reviewed the evidence and, in so doing, concludes that the concession is properly made. The Tribunal agrees that an assessment of 10 points is the correct and preferable decision. Accordingly, the Tribunal will not elaborate further on that condition.
The issue remains as to what is the correct and preferable decision with respect to the Applicant’s upper limb condition.
In the JCA Report, which was prepared during the Qualification Period,[27] the author reported the functional impact with respect to the Applicant’s right hand, including weakness in the use of that hand, and reported other limitations consistent with the Applicant’s evidence, including picking up a one litre carton of fluid, muscle pain in the forearm and intermittent numbness in fingers, difficulty taking hold of things in his right hand, difficulty using a pencil in writing, and difficulty doing up buttons or tying shoelaces. The report refers to “Support Requirements” and gives four recommendations, none of which the Applicant has undertaken. It was opined that the Applicant had a reduction in work capacity of 8 – 14 hours per week, but a capacity for work within two years with intervention of 15 – 22 hours per week.
[27] Exhibit A, T Documents, pages 172 – 179.
The Tribunal accepts that the Applicant does suffer from an upper limb condition which affects his right hand and wrist. The Tribunal accepts the Applicant was right hand dominant and that the condition has a debilitating effect upon his ability to use his right hand, including to write, pick up items such as a one litre carton of fluid, cups, doing up buttons or tying shoelaces, generally clothing himself, and unscrewing the lid on a soft drink bottle. The Tribunal also accepts that he lacks the dexterity to be able to turn the page of the book with ease, and cannot satisfactorily use a computer keyboard with his right hand. However, these limitations are only with respect to the Applicant’s right hand. He can otherwise perform most of those functions using his left hand.
The Tribunal notes the various photographs produced by the Respondent which appear to show the Applicant taking “selfies” depicting him playing the guitar. There are other photographs including depicting the Applicant holding his dog. The Tribunal accepts the Applicant’s explanation for how the “selfies” were taken with the assistance of his daughter and that it was done at her request. The Tribunal also accepts the Applicant’s explanation for how he was able to hold his dog in the manner shown in the photograph. The Tribunal accepts that he has a significant loss of function of his right hand and wrist.
However, the purpose of the legislative scheme, and in particular Table 2 – Upper Limb Function, is to provide the descriptors that identifies the functional impact a condition has on activities using hands or arms. The Table is not used, unless otherwise specified, as an assessment of the loss of function of a limb in isolation. It is not in the nature of a compensatory assessment for loss of function of that limb. It is to be used as an assessment in determining the functional impact a condition has on the Applicant’s ability to perform functions from a whole of person perspective by reference to the specified functions referred to in the Table. This is then referable to the Applicant’s capacity to engage in employment or, alternatively, the Applicant’s entitlement to the DSP. Hence, the Table specifies mild, moderate, severe, and extreme functional impacts and gives a point assessment for each.
The introduction to Table 2 provides that the Table is to be used when the person has a permanent condition resulting in a functional impairment when performing activities requiring the use of hands or arms. The condition must be diagnosed by an appropriately qualified medical practitioner and self-reporting of symptoms alone is insufficient. There must be corroborating evidence of the person’s impairment. There must be a report from a medical specialist confirming the diagnosis of conditions associated with the limb impairment. The introduction refers to a report from an allied health practitioner such as a physiotherapist, occupational therapist, confirming the functional impact. The Respondent argues that Dr Leyden’s reports do no more than repeat the Applicant’s self-reporting of the functional impact and so does not satisfy the requirement of corroborative evidence referred to in the introduction. The Tribunal agrees with that submission. However, given the Respondent’s concession that the condition is fully diagnosed, treated and stabilised, the Tribunal has nonetheless considered the appropriate table assessment based on the available evidence.
Exhibit D contained a number of reports from Dr Leyden. In a two line report dated 5 December 2016,[28] Dr Leyden reports that the Applicant has “a severe neuropraxia of median nerve” which condition he said was stable and does not respond to any medication or other treatment. I note this report is dated during the Qualification Period. In a second short report of the same date,[29] he said that the Applicant was on the waiting list for the pain clinic and that no further appointment had been made to see Dr Leyden. Hence, it would appear that further treatment was, as at 5 December 2016, being pursued.
[28] Exhibit D, page 15.
[29] Ibid, page 16.
Exhibit D also contains a report from Dr Leyden dated 5 November 2018.[30] He reports that he saw the Applicant for the first time in 2016. Further, that the Applicant had been seen at the Neurology Clinic for neuropathic pain in his right hand but he does not indicate when that occurred or its outcome. It is also not clear whether this Neurology Clinic was the pain clinic with respect to which the Applicant was on a waiting list as referred to in the report of 5 December 2016. In this latter report, Dr Leyden details the Applicant’s reported conditions and opines that the condition was fully treated and stabilised, but does not relate that to any point in time, and in particular to the Qualification Period. Further, Dr Leyden, when commenting on Table 2 – Upper Limb Function, opined that the Applicant meets the category of severe functional impact but references that opinion solely with respect to the limitations he has in using his right arm only.
[30] Ibid, page 17.
Hence, the reports of Dr Leyden do not direct his opinion towards the Applicant’s disability at the date of the claim for DSP or the Qualification Period. Further, the reports do not corroborate the functional impairments claimed by the Applicant but simply reference the Applicant’s self-reporting. Insofar as Dr Leyden purports to provide opinion with respect to the Table 2 – Upper Limb Function impairment, he only considered the function of the right hand alone. For the reasons the Tribunal has referred to above, that is not the correct approach in considering the operation of the Table which requires consideration of the impact the condition has on the Applicants functional impairment when performing activities requiring the use of both hands and arms.
Having regard to the whole of the evidence, and putting aside the question of whether or not the Applicant’s evidence is corroborated by an appropriately qualified medical practitioner, the Tribunal accepts that the Applicant suffered severe neuropraxia to his right upper limb, resulting in impediments in the use of his right hand and wrist. However, the Tribunal does not accept that the right upper limb dysfunction as detailed by the Applicant, when viewed against Table 2, meets the criteria of severe functional impact entitling the Applicant to an assessment of 20 points. The Tribunal does not accept that he is unable to perform most of the descriptors (1)(a) – (e) in the category of severe functional impact. Subject to the question of corroboration on the Applicant’s evidence, the Tribunal accepts that he satisfies most of the descriptors (1)(a) – (e) for moderate functional impact entitling the Applicant to an assessment of 10 points.
The conclusion the Tribunal has reached in relation to the classification of functional impact means that the Applicant is not entitled to an assessment of 20 points for any one condition. He has failed to undertake a program of support in accordance with the Act and therefore he is unable to receive the DSP.
The Tribunal notes that, despite the issues raised by the Respondent with respect to self-reporting and the sufficiency of the medical evidence before the Tribunal, the Respondent concedes the Applicant’s upper limb condition is fully diagnosed, treated and stabilised. Having regard to the whole of the evidence, the Tribunal accepts the Respondent’s concession.
On that basis, the Tribunal finds that the Applicant satisfied the criteria of a moderate functional impairment and attracts a rating of 10 points.
Given the Applicant does not have a severe impairment rating, he is still required to complete the program of support. The mere fact that the Respondent did not notify him of the need to undertake that program does not mean that the Applicant is exempt from doing so. The Applicant had not engaged in a program of support within the 36 months preceding the DSP claim and so is unable to be assessed as having a continuing inability to work pursuant to s 94(1)(c) of the Act, and therefore does not qualify for the DSP.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 111 (one hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

.......[Sgnd]...............................................
Associate
Dated: 28 June 2019

Date of hearing: 16 April 2019

Applicant: In person

Advocate for the Respondent: Mr Oliver Morris, Department of Human Services

[2019] AATA 1531

28 June 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Jurisdiction

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	16 April 2019
Applicant:	In person
Advocate for the Respondent:	Mr Oliver Morris, Department of Human Services