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

Morgan and Secretary, Department of Social Services (Social services second review) [2019] AATA 17 (10 January 2019)
Division:GENERAL DIVISION
File Number: 2017/6683
Re:Peter Morgan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson
Date:10 January 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[sgd]....................................
Senior Member P J Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – cancellation – mental health condition – osteoarthritis of cervical spine condition – lower limb condition - whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P J Clauson
10 January 2019
INTRODUCTION

Mr Peter Morgan (“Applicant”) has been in receipt of the Disability Support Pension (“DSP”) since 13 November 2012.
On 10 February 2017, the Department of Human Services (“Centrelink”) notified the Applicant that his DSP had been cancelled.[1] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[2]
[1] Exhibit 1, T-Documents, T36, pp. 244-245, Cancellation of DSP, dated 10 February 2017.
[2] Exhibit 1, T-Documents, T46, pp. 269-275, ARO Decision, dated 19 April 2017.
On 31 October 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[3]
[3] Exhibit 1, T-Documents, T2, pp. 3-10, Decision of the Social Services & Child Support Division,
dated 31 October 2017.
The finding from these abovementioned decisions is that the Applicant’s DSP should be cancelled, with a date of effect of 10 February 2017. The reason for cancellation being that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for DSP and did not have a continuing inability to work.
Following this, the Applicant sought a second tier review of this matter by the General and Other Division of this Tribunal, by way of an application dated 10 November 2017.[4]
[4] Exhibit 1, T-Documents, T1, pp. 1-2, Application for review, dated 10 November 2017.
On 22 May 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The Applicant provided evidence in support of his application on 16 April 2018 and 22 May 2018, the day of the hearing of this matter. Despite the fact that this material was submitted after the due date outlined in the Direction of the Tribunal dated 1 February 2018, this material forms part of the evidence in this matter and has been taken into account in the making of this decision. On 21 June 2018 and 20 November 2018 the Applicant sought to provide further material, but as the application had already been heard and was reserved awaiting a decision, this request was refused by the Tribunal. This additional material was not considered as part of this decision.
BACKGROUND
On 1 November 2016, Centrelink notified the Applicant that his DSP was being reviewed.[5]
[5] Exhibit 1, T-Documents, T25, pp. 191-193, DSP Review Letter to Applicant, dated 1 November
2016.
Accompanying this Review of Entitlement letter was a letter from Centrelink requesting information; specifically, the Applicant was asked to book an appointment with his treating doctor and for his treating doctor to complete a “Treating Doctor’s Report” by 29 November 2016.[6]
[6] Exhibit 1, T-Documents, T25, pp. 191-193, DSP Review Letter to Applicant, dated 1 November
2016.
On 1 November 2016, the Applicant was issued a DSP Medical Review Form.[7] This form constitutes a notice given pursuant to section 63 of the Social Security (Administration) Act 1999 (“Administration Act”), and indicates that a review of the Applicant’s ongoing entitlement to DSP has commenced.
[7]Exhibit 1, T-Documents, T22, pp. 128-131, DSP Medical Review Form, issue date 15 April 2016.
On 24 November 2016, the Applicant returned the DSP Medical Review Form.[8]
[8] Exhibit 1, T-Documents, T28, pp. 204-213, DSP Medical Review Form completed by Dr Brown, dated
18 November 2016.
The Applicant’s General Practitioner, Dr Emma Brown, completed section B of this form.

Dr Brown noted that of the Applicant’s conditions, osteoarthritis was causing the most impact on the Applicant’s ability to function. It was noted that the impact of the condition on the Applicant’s ability to function would persist for more than 24 months and that the effect of the condition was uncertain and would deteriorate.[9]
[9] Exhibit 1, T-Documents, T28, pp. 204-213, DSP Medical Review Form completed by Dr Brown, dated
18 November 2016.
Dr Brown did not list any other conditions.
On 18 January 2017, the Applicant attended a face-to-face Job Capacity Assessment (“JCA”).[10] The JCA reported that:
(a)The Applicant’s osteoarthritis condition was fully diagnosed, but not fully treated and fully stabilised;
(b)The Applicant’s neck condition was considered permanent, but it could be expected to improve with further engagement in the next 3-12 months with investigations, specialist review and multidisciplinary pain management program;
(c)The Applicant’s obstructive sleep apnoea condition was fully diagnosed but not fully treated and fully stabilised;
(d)The Applicant’s hypertension condition was fully diagnosed, fully treated and fully stabilised and as a result was assigned an Impairment Rating of 0 points under Table 1 of the Impairment Tables;
(e)The Applicant’s bursitis condition was temporary in nature; and
(f)The Applicant had a baseline work capacity of 8-14 hours per week and this could increase to 15-22 hours per week within two years with intervention.[11]
[10] Exhibit 1, T-Documents, T34, pp. 232-240, Job Capacity Assessment Report, dated 7 February
2017.
[11] Exhibit 1, T-Documents, T34, pp. 232-240, Job Capacity Assessment Report, dated 7 February
2017.
The Applicant’s DSP was cancelled on 10 February 2017 (“date of cancellation”).[12]
[12] Exhibit 1, T-Documents, T36, pp. 244-245, Cancellation of DSP, dated 10 February 2017.
ISSUES
The issue to be considered by the Tribunal is whether the Applicant was qualified to continue receiving DSP as at the date of cancellation. In order for the Tribunal to determine this issue, I must consider with reference to the date of cancellation:
(a)whether the Applicant had a physical, intellectual or psychiatric condition/s;
(b)whether the Applicant’s condition/s were fully diagnosed, treated and stabilised such that the Applicant’s condition/s attracted a rating of 20 points or more under the Impairment Tables; and
(c)whether the Applicant had a continuing inability to work.[13]
[13] Social Security Act 1991 (Cth), s 94.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
The Administration Act provides for the cancellation or suspension of a social security payment[14] if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment:[15]
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
a)    who is not, or was not, qualified for the payment; or
b)    to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.
[14]          See section 23 of the Act, DSP is included as part of the definition for “social security benefit”.
[15]          Social Security (Administration) Act 1999 (Cth) s 80.
Case law authorities have had regard to the date the review is confined to in social security payment cancellation matters. In the matter of Shi v Migration Agents Registration Authority [2008] HCA 31 at [144], Kiefel J discusses the matter of Freeman v Secretary, Department of Social Services [1988] FCA 294 (“Freeman”):
“His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision”.
Freeman upholds the proposition that the Tribunal can only consider whether a person qualified for DSP on the date of cancellation. In this case, the date is 10 February 2017. It is irrelevant that a person may later again fulfil the DSP requirements.[16]
[16] Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674.
The Applicant was sent a notice that Centrelink was reviewing his eligibility for DSP.[17] Pursuant to section 63(2) of the Administration Act, Centrelink is authorised to notify a person of a requirement to provide information to the Secretary. Once a person receives notification under section 63(2) of the Administration Act, section 27(3) of the Act must be adhered to. That section provides:
3)If:
a.a person is receiving disability support pension; and
b.the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person's qualification for that pension;
the Secretary, in assessing the person's qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
[17] Exhibit 1, T-Documents, T25, pp. 191-193, DSP Review Letter to Applicant, dated 1 November
2016; Exhibit 1, T-Documents, T22, pp. 128-131, DSP Medical Review Form, issue date 15 April 2016.
In order for the Applicant to qualify for the DSP, the following relevant criteria set out in section 94 of the Act must be met:
(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)the person has a continuing inability to work.
Pursuant to section 26 of the Act, the Impairment Tables are set out in the legislative instrument titled Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth) (“Impairment Determination”). At the date of cancellation, the Applicant’s Impairment Rating was assessed under the Impairment Determination.
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[18] Essentially, the Tables are function-based, rather than diagnostic-based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[19] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[20]
[18] Impairment Determination, s 5(1) – (2).
[19] Impairment Determination, s 5(2).
[20] Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[21]
[21] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred in relation to the condition and whether treatment is continuing or is planned in the next two years.[22]
[22] Impairment Determination, s 6(5).
A condition will be considered 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
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.[23]
[23] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(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 Applicant.[24]
[24] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[25]
[25] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.[26]
[26] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, in these circumstances, the criteria set out in section 94(2)(a) – (b) of the Act must be met.
CONSIDERATION
The Applicant suffers from a mental health condition, osteoarthrosis of the cervical spine, osteoarthritis of the neck, hips, knees and feet, obstructive sleep apnoea and hypertension.
The Respondent accepts that the Applicant suffered from physical impairments at the date of cancellation.[27] Having considered the material before the Tribunal, I am of the view that this is an appropriate concession to make; the Applicant therefore satisfies section 94(1)(a) of the Act.
[27] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 44.
The issues to be determined by this Tribunal, are whether or not at the date of cancellation, those impairments attracted an Impairment Rating of 20 points or more under the Impairment Tables,[28] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[28] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables at the date of cancellation.
At the date of cancellation did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Mental health condition
The Respondent accepts that the Applicant suffers from depression, however contends that at the time the Applicant’s DSP was cancelled the condition was not fully diagnosed, fully treated and fully stabilised[29]. The Respondent therefore contends that the Applicant’s Mental Health condition could not attract an Impairment Rating under Table 5 of the Impairment Tables.[30]
[29] Exhibit 2, para 64.
[30] Exhibit 2, para 70.
The Applicant saw Dr Alice Hucker, clinical psychologist, of the Morayfield Psychology Centre in 2013, and Dr Hucker reported that she had seen the Applicant on referral from his general practitioner (“GP”) under a Mental Health Care Plan. Dr Hucker’s report dated 4 April 2013 referred to the Applicant presenting with:
“…his mood disturbance, and ongoing difficulties with pain and physical discomfort.”[31]
[31] Exhibit 1, T-Documents, T13, p. 121, Medical Report of Dr Hucker, dated 4 June 2013.
The Applicant attended two sessions with Dr Hucker and reported symptoms such as low mood, low motivation, suicidal thoughts, and sleeping difficulties. The Applicant also reported experiencing difficulty with daily living tasks and difficulty keeping up with his Centrelink employment requirements of 15 to 20 hours per week.[32] Dr Hucker’s report contains no formal diagnosis of depression and does not outline any proposed treatment for such a condition.
[32] Exhibit 1, T-Documents, T13, p. 121, Medical report of Dr Hucker, dated 4 June 2013.
The Applicant was receiving counselling sessions at the Caboolture Neighbourhood Centre on a weekly basis from December 2015 to February 2017.[33] On 1 March 2017, the Applicant’s social worker, Ms Ena Murall Moran, reported that in the sessions conducted with the Applicant, the focus was on issues relating to the Applicant’s anger management, as well as issues relating to his depression and anxiety. The aim of these sessions was:
“…to lower the negative impact depression and anxiety has on his day to day living.”[34]
[33] Exhibit 1, T-Documents, T40, p. 254, Report from Ms Moran, dated 1 March 2017.
[34] Exhibit 1, T-Documents, T40, p. 254, Report from Ms Moran, dated 1 March 2017.
The Applicant’s treating GP, Dr Kathryn Blake, in her referral letter to Dr Robert Hodge dated 9 January 2017, lists the Applicant’s past medical history; the Tribunal notes that depression is not listed.[35] There is also no mention of any treatment for a diagnosed mental health condition alluded to in this letter.[36] In contrast the report of Dr Brown to Centrelink dated 23 February 2017 did identify major depression as part of the Applicant’s history with treatment being “seeing councellor. Ena at Caboolture community centre”.[37]
[35]Exhibit 1, T-Documents, T30, p. 216, Medical report from Dr Blake to Dr Hodge, dated 9 January 2017.
[36]Exhibit 1, T-Documents, T30, p. 216, Medical report from Dr Blake to Dr Hodge, dated 9 January 2017.
[37] Exhibit 1, T-Documents, T38, p. 248.
On 6 February 2017, Dr Blake provided evidence by telephone to Centrelink that was collated in an “Additional Medical Evidence for Disability Support Pension Record” form. This form stated that the Applicant was diagnosed with depression and noted that:
“Further consideration for referral to clinical psychologist for symptoms consistent with depression would be attended and discussed with Mr Morgan.”[38]
I have formed the view that Dr Blake was contemplating referring the Applicant to the appropriate specialist for diagnosis and treatment, namely, a clinical psychologist, and as such a diagnosis by a clinical psychologist or psychiatrist had not been made.
[38]Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, Annexure 2: Additional Medical Evidence for Disability Support Pension, dated 6 February 2017.

A Mental Health Care Plan was prepared for the Applicant on 1 March 2017.[39], The Applicant saw consultant psychiatrist Dr Dushan Alponsu, who prepared a report on the Applicant’s condition, on 25 March 2017, which the Tribunal notes is some time after the date of cancellation.[40] Dr Alponsu stated in that report that the Applicant was diagnosed with “Depressive Disorder and Chronic Pain” and that he was providing the Applicant with psychological support and was changing and optimising the dose of the Applicant’s antidepressants.[41] This, in the view of the Tribunal, supports the contention of the Secretary that the diagnosis of the Applicant’s mental health condition occurred after the date of cancellation and that he was being treated for the condition with a view to stabilising it sometime in the future.[42]
[39]          Exhibit 1, T-Documents, T39, pp. 250-253, GP Mental Health Plan, dated 1 March 2017.
[40]          Exhibit 1, T-Documents, T42, p. 257, Medical report of Dr Alponsu, dated 25 March 2017.
[41]          Exhibit 1, T-Documents, T42, p. 257, Medical report of Dr Alponsu, dated 25 March 2017.
[42]          Exhibit 1, T-Documents, T42, p. 257, Medical report of Dr Alponsu, dated 25 March 2017.
Based on the material before the Tribunal, I find that although the Applicant may have been suffering from depression symptoms since 2013, no formal diagnosis was made and no meaningful treatment was undertaken until he began consultations with Dr Alponsu in March 2017. Even if the condition had been diagnosed in 2013 as a result of the Applicant’s appointments with Dr Blake and Dr Hucker, there is no evidence that the condition was fully treated and fully stabilised at the date of cancellation.
The Applicant’s evidence to this Tribunal under cross-examination by the Respondent’s representative in relation to his experiences with the mental health experts was somewhat negative in its tenor. He stated that Dr Hucker made him feel out of place because her “dress standards” were far superior to his on the day and this made him feel inferior, and further that his experience with Dr Alponso made him feel “uncomfortable.”
Based on the information discussed above, I find that the Applicant’s mental health condition was not fully diagnosed, fully treated or fully stabilised at the date of cancellation.
Therefore, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Osteoarthritis of the cervical spine condition
The Respondent accepts that the Applicant’s cervical spine condition was fully diagnosed at the date of cancellation.[43] However, the Respondent contends that the Applicant’s cervical spine condition was not fully treated or fully stabilised at the date of the cancellation.[44]
[43] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 45.
[44] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 46.
On 17 December 2012, Dr Harpreet Sawhney, GP, completed a DSP Medical Report.[45] The medical report confirms that the Applicant has osteoarthritis of the cervical spine. Dr Sawhney reported that the treatment for the Applicant’s condition was “conservative” and included analgesics for the symptoms described as “pain and restricted movements”. Further, Dr Sawhney noted that the condition impacted on the Applicant’s ability to function in the following way: “Pain in neck movement. Restrictions.”[46]
[45]Exhibit 1, T-Documents, T8, pp. 88-98, DSP Medical Report completed by Dr Harpreet Sawhney, dated 17 December 2012.
[46]Exhibit 1, T-Documents, T8, p 93, DSP Medical Report completed by Dr Harpreet Sawhney, dated 17 December 2012.
On 18 November 2016, the Applicant’s GP, Dr Brown, reported that the Applicant was suffering from osteoarthritis that was affecting his cervical spine, and that this was being treated with analgesics.[47] It was further noted that he was unable to sit for long in one posture as he suffered neck pain and a reduced range of movement of the neck.[48]
[47]Exhibit 1, T-Documents, T28, p. 206, DSP Medical Review Form completed by Dr Brown, dated 18 November 2016.
[48]Exhibit 1, T-Documents, T28, p. 208, DSP Medical Review Form completed by Dr Brown, dated 18 November 2016.
An analysis of the medical evidence since the date of cancellation reveals that on 18 January 2017, the Applicant advised the JCA that he had not yet participated in a course of cortisone therapy and had not engaged in a multidisciplinary pain management program to assist in optimisation of his treatment for this condition. The JCA also noted in their commentary that the condition had not been confirmed by specialist opinion.[49]
[49] Exhibit 1, T-Documents, T34, p. 234, JCA report, dated 7 February 2017.
On 10 February 2017, Dr H Carim, a radiologist, reported that the Applicant was suffering from the following:
“1. Disc degenerative disease at multiple levels mainly affecting C4/C5 on the left likely impinging upon the left C5 nerve root. This would be amenable to CT guided steroid injection to assess for pain relief given that the symptoms are on the left.”[50]
(Emphasis omitted)
[50] Exhibit 1, T-Documents, T35, p. 242, Report from Dr Carim, dated 10 February 2017.
I view Dr Carim’s report as further confirmation that the Applicant’s cervical spine condition was still under assessment for ongoing treatment to attempt to stabilise the condition. This view is also supported by the earlier report from radiologist Dr B Laing on 8 June 2016; he relevantly concludes:
“Note is made of severe left sided facet arthropathy C2/C3 to C4/C5 levels and this may be clinically significant. Further evaluation could be performed of this with CT SPECT or MRI if CT guided steroid injection is required.”[51]
(Emphasis omitted).
[51] Exhibit 1, T-Documents, T39, p. 253, Report from Dr Laing, dated 8 June 2016.
Several reports post the date of cancellation were included with the materials provided to the Tribunal, and these allude to the future treatments proposed for the Applicant’s cervical spine condition. The Tribunal is limited to considering the Applicant’s condition at the date of cancellation. In this case the report of Dr Brown dated 23 February 2017[52], the JCA report dated 7 April 2017[53] and the report dated 3 October 2017 of Ms Tweedy[54], a Specialist Musculoskeletal Physiotherapist, are relevant to the extent that they all indicate to the Tribunal that treatment for the Applicant’s cervical spine condition was then and is still under consideration by the Applicant’s treating doctors and that there are procedures and programs to be considered and engaged with before the condition could be considered as fully treated and fully stabilised.
[52]          Exhibit 1, T-Documents, T38, p. 248, Medical report by Dr Brown, dated 23 February 2017.
[53]          Exhibit 1, T-Documents, T44, JCA report, dated 7 April 2017.
[54]          Exhibit1, T-Documents, T49, p. 279, Medical report from Ms Tweedy, dated 3 October 2017.
Based on the information discussed above, I find that the Applicant’s osteoarthritis of the cervical spine condition was fully diagnosed but was not fully treated or fully stabilised at the date of cancellation.
Therefore, I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Osteoarthritis of the hips, knees and feet condition
The Respondent accepts that the Applicant’s osteoarthritis of the hips, knees and feet condition was fully diagnosed at the date of cancellation, however, contends that the condition was not fully treated and fully stabilised at the date of cancellation.[55]
[55]Exhibit 1, T-Documents, T44, pp. 259-267, JCA report, dated 7 April 2017; Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, paras 54 – 55.
The Tribunal accepts that the Applicant’s osteoarthritis condition had been diagnosed well before the date of cancellation, as is evidenced by the report of Dr Alexey Borshch on 5 June 2013. In his report, Dr Borshch reports that the Applicant was suffering from severe mid foot osteoarthritis. Further, he also recommended treatment of either continuing analgesia or surgery to fuse his midfoot. Dr Borshch also stated that he had referred the Applicant to “…the appropriate orthopaedic consultant clinic for review”.[56] Dr Brown confirmed in her letter addressed to QUT that the Applicant had to defer his studies on medical grounds as he had undergone a right total hip replacement on 14 January 2015 and was in rehabilitation as a result of that procedure.[57]
[56] Exhibit 1, T-Documents, T16, p. 132, Medical report from Dr Borshch, dated 12 June 2013.
[57] Exhibit 1, T-Documents, T33, p. 227, Letter from Dr Brown, dated 10 April 2015.
The Applicant’s GP, Dr Champaneri, reported to Centrelink on 17 September 2013 that the Applicant had:
“some significant medical problems which include osteoarthritis of the foot (not correctable surgically), osteoarthritis of the cervical spine, CAM type injury of the right hip and a total hip replacement.”[58]
[58]Exhibit 1, T-Documents, T20, p. 179, Medical report from Dr Champaneri, dated 17 September 2013.
Dr Brown, in her report to Centrelink on 18 November 2016, confirmed that the Applicant was suffering from osteoarthritis of the hips, cervical spine and feet.[59] Dr Brown also confirmed that the Applicant had bilateral hip replacements of the left hip on 23 July 2014 and the right hip on 14 January 2015.[60] The report also noted that the Applicant still suffered from neck and foot pain and had a reduced walking distance. Dr Brown noted that the Applicant was unable to stand for longer than 5 minutes and was unable to sit for long periods in one posture because of neck pain.[61]
[59]Exhibit 1, T-Documents, T28, p. 206, Medical report completed by Dr Brown, dated 18 November 2016.
[60] Exhibit 1, T-Documents, T28, p. 207, Medical report completed by Dr Brown, dated 18 November
2016.
[61] Exhibit 1, T-Documents, T28, p. 208, Medical report completed by Dr Brown, dated 18 November
2016.
On 20 June 2016, the Applicant had an x-ray of both of his hips.[62] Dr Carim prepared a report and noted that he had bilateral hip replacements and that he was suffering from pain in both hips.[63] Further, on 15 February 2017 an x-ray report by Dr Langlois noted a history of osteoarthritis in the Applicant’s knees and feet and further noted “very severe degenerative change is present in the intertarsal and tarsometatarsal joints”.[64]
[62]          Exhibit 1, T-Documents, T33, p. 230, Report by Dr Carim, dated 20 June 2016.
[63]          Exhibit 1, T-Documents, T33, p. 230, Report by Dr Carim, dated 20 June 2016.
[64]          Exhibit 1, T-Documents, T37, pp. 246 – 247, Report by Dr Langlois, dated 15 February 2017.
Notwithstanding the outlined medical evidence which provides that the Applicant suffers from significant medical conditions relating to his osteoarthritis of the hips, knees and feet condition conditions the Respondent contends that they have not been fully treated or fully stabilised as at the date of cancellation of the Applicant’s DSP.[65]
[65] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 55 - 57.
The Respondent cites in support of their position Dr Brown’s letter of 23 February 2017 to Centrelink updating the Applicant’s state of treatment, which stated that he had been referred to the orthopaedic Spinal Clinic at the Royal Brisbane and Women’s Hospital and also to the orthopaedics at Redcliffe Hospital for review of his arthritis.[66]
[66] Exhibit 1, T-Documents, T38, p. 248, Medical report by Dr Brown, dated 23 February 2017.
The Applicant advised the JCA that he was awaiting further referrals and appointments for physiotherapy intervention.[67] The Applicant further advised the Tribunal that he was awaiting an appointment to see an orthopaedic specialist for review of the arthritic condition of his feet at the Redcliffe Hospital at a time after the hearing. Thus, it is clear to me that the Applicant’s osteoarthritis of the hips, knees and feet condition was still being considered by his treating medical practitioners to establish the optimal treatments and outcomes.
[67] Exhibit 1, T-Documents, T34, pp. 232 – 240, JCA report, dated 7 February 2017.
Based on the information discussed above, I find that while the Applicant’s osteoarthritis of the hips, knees and feet condition had been fully diagnosed at the date of cancellation it had not been fully treated and fully stablished.
Therefore I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Other Conditions
Obstructive sleep apnoea condition
The Respondent accepts that the Applicant suffers from obstructive sleep apnoea but contends that the condition was not fully diagnosed, fully treated or fully stabilised at the date of cancellation.[68]
[68] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 71 - 77.
On 15 July 2014, a sleep report was prepared by Ms Nicole Woolford, a Sleep Technician at Healthy Sleep Solutions.[69] The report stated that the Applicant’s sleep test results indicated that he did indeed suffer from sleep apnoea and that the reviewing physician recommended that the Applicant commence use of a Continuous Positive Airway device.[70]
[69] Exhibit 1, T-Documents, T33, p. 226, Report from Ms Woolford, dated 15 July 2014.
[70] Exhibit 1, T-Documents, T33, p. 226, Report from Ms Woolford, dated 15 July 2014.
On 7 April 2017, the JCA reported that they spoke with the Applicant’s treating GP,

Dr Blake, on 6 February 2017, and that Dr Blake confirmed that the Applicant had been referred for sleep studies, had been recommended for further treatment with a CPAP device, and that:
“Nil device use was noted at this time…As reasonable treatment (CPAP device) has not been attended and Mr Morgan is currently awaiting further review for this condition, this condition is not considered fully treated at the time of this assessment. It is reasonable to expect significant improvement with further engagement with CPAP therapy over the next 6 months.”[71]
[71] Exhibit 1, T-Documents, T44, pp. 259 – 267, JCA report, dated 7 April 2017.
At the hearing of this matter the Applicant was questioned during cross-examination about whether he had started using the CPAP device following the diagnostic polysomnography that was conducted by Dr Suvenesh Prasad on 21 May 2017, and the CPAP Script provided by Dr Hooi Shan Yap on 15 September 2017.[72] The Applicant told the Tribunal that he had not done so. The Applicant further stated that Centrelink had cancelled his DSP before he could do so and he now had to see if he could afford the device.
[72] Exhibit 4, Diagnostic Polysomnography, dated 21 May 2017; CPAP Script dated 15 September 2017.
In fact, the letter to Dr Brown from Ms Woolford dated 25 July 2014 states at paragraphs 3 and 4 that:
“I have contacted Peter and made an appointment to discuss the results with a view to commence their treatment of CPAP…I have also recommended to the patient that they should contact you directly to discuss their sleep report results and their CPAP treatment introduction.”[73]
As such I do not accept that the Applicant did not obtain a CPAP device because of the cancellation of the DSP. The Applicant was also asked, at the hearing, if he had explored the possibility of hiring such a machine and he responded that he had but that the girl he saw said that hired devices may not be reliable or serviced properly. The Applicant further stated that he would rather have a mask individually suited to his needs and that they cost approximately $600.00.
[73] Exhibit 1, T-Documents, T33, p. 226, Report from Ms Woolford, dated 15 July 2014.
Based on the information discussed above, I find that while the Applicant’s sleep apnoea condition had been fully diagnosed at the date of cancellation it had not been fully treated and fully stablished.
Therefore I am unable to assign the condition an Impairment Rating under the Impairment Determination.
Hypertension condition
The Respondent accepts that the applicant suffers from hypertension and that this condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.[74] The Respondent contends, however, that this condition causes minimal or limited impact on the Applicant’s ability to function.[75]
[74] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 78.
[75] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 3 April 2018, para 79.
Two of the Applicant’s treating GPs make mention of the Applicant suffering from hypertension in their reports to Centrelink. Dr Sawhney in his report stated that the Applicant suffered from hypertension and that it was generally well managed and caused minimal or limited impact.[76] Dr Champaneri in his report to Centrelink confirmed the view of Dr Sawhney, and reported that the Applicant suffered from hypertension that was generally well managed and caused minimal or limited impact.[77]
[76] Exhibit 1, T-Documents, T8, p. 97, Medical report from Dr Sawhney, dated 17 December 2012.
[77] Exhibit 1, T-Documents, T19, p.177, Medical report from Dr Champaneri, dated 4 September 2013.
The JCA documented that the Applicant reported a recent high blood pressure reading. Further, his GP, Dr Brown, had prescribed Perindopril and he had to follow up with her by way of planned future treatment to see if his medications would need to be altered or if he would need to be referred to a cardiologist. It was noted that Dr Brown stated that the “condition was reported as chronic and well managed”.[78] The JCA at this time considered that the condition was permanent and fully diagnosed but not yet fully treated for the purpose of that assessment because the Applicant may still need to assessed by a cardiologist. The JCA anticipated that ongoing pharmacotherapy and specialist review as appropriate may improve the Applicant’s function within the next 24 months.[79]
[78] Exhibit 1, T-Documents, T44, p. 261, JCA report, dated 7 April 2017.
[79] Exhibit 1, T-Documents, T44, p. 261, JCA report, dated 7 April 2017.
This Tribunal, however, is confined to the date of cancellation for the purpose of this review and I find that the Applicant’s hypertension condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.
Based on the evidence before the Tribunal I find that the Applicant’s hypertension condition is well managed and, without evidence to the contrary, causes minimal or limited impact on the Applicant.
The Applicant’s hypertension condition therefore attracts zero points under Table 1 of the Impairment Determination.
CONCLUSION
On the basis of the evidence before me, I am satisfied that the Applicant’s mental health condition, osteoarthritis of the cervical spine condition, osteoarthritis of the hips, knees and feet condition and obstructive sleep apnoea condition were fully diagnosed, however were not fully treated and fully stabilised at the date of cancellation.
Further, while I am satisfied that the Applicant’s hypertension condition was fully diagnosed, fully treated and fully stabilised as at the date of cancellation I consider the functional impairment to be minimal.
CONTINUING INABILITY TO WORK
Given that the Applicant does not satisfy the requirement under section 94(1)(b) of the Act, it is not necessary for me to consider whether the Applicant had a continuing inability to work at the date of cancellation.
DECISION
The decision to cancel the Applicant’s DSP on 10 February 2017 is affirmed.

I certify that the preceding 83 (eighty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson

.......................[sgd]................................................
Associate
Dated: 10 January 2019

Date of hearing: 22 May 2018

Applicant: In person

Advocate for the Respondent: Mr Rick McQuinlan

Solicitors for the Respondent: Department of Human Services

[2019] AATA 17

10 January 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	22 May 2018
Applicant:	In person
Advocate for the Respondent:	Mr Rick McQuinlan
Solicitors for the Respondent:	Department of Human Services