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

Newman and Secretary, Department of Social Services (Social services second review) [2020] AATA 1259 (11 May 2020)
Division:GENERAL DIVISION
File Number(s): 2018/7313
Re:Wayne Newman
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:11 May 2020
Place:Brisbane

The Tribunal affirms the decision under review.
..................................[SGD]...................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions permanent – whether 20 points or more under the impairment tables during the relevant period – whether continuing inability to work – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
11 May 2020
BACKGROUND AND CLAIMS HISTORY

On 23 May 2017 Mr Wayne Newman (“Mr Newman”) lodged a claim with Services Australia (then known as the Department of Social Services) (“Centrelink”) for the Disability Support Pension (“DSP”). Mr Newman described his medical conditions as follows:[1]
severe ischaemic heart disease, type II diabetes, dyslipidaemia, obstructive sleep apnoea, anxiety, depression, fatigue, mental fog, bursitis (r/l shoulders), sore joints, toes numb, chest pain/angina, sustaining work around house, lower back pain
[1] Exhibit 1, T Documents, T6, pages 75 – 106, Mr Newman’s Claim for DSP dated 10 May 2017.
Mr Newman provided Centrelink with a number of medical reports in support of his DSP claim.
In June 2017 Centrelink requested further information from Mr Newman including identity documents, a completed separated under one roof form and additional medical evidence.[2]
[2] Exhibit 1, T Documents, T8 – T9, pages 114 – 117, Centrelink requests for information dated 15 June 2017 and 22 June 2017.
Mr Newman provided further medical certificates and an ultrasound report on 22 June 2017.
In July 2017 a job capacity assessment (“JCA”) was conducted by a Rehabilitation Counsellor. The JCA report indicated that:[3]
(a)Mr Newman’s ischaemic heart disease (“IHD”) was permanent and warranted an impairment rating of 5 points under the impairment tables;
(b)Mr Newman’s diabetes was fully diagnosed but not fully treated and stabilised;
(c)Mr Newman’s anxiety and depression were not fully diagnosed; and
(d)Mr Newman’s bursitis, capsulitis and tendinitis conditions were temporary.
[3] Exhibit 1, T Documents, T12, pages 124 – 134, JCA report dated 14 July 2017.
As a result of the JCA, Centrelink determined on 18 September 2017 to reject Mr Newman’s claim for DSP.[4]
[4] Exhibit 1, T Documents, T13, pages 135 – 136, rejection of DSP claim dated 18 September 2017.
Mr Newman lodged additional medical reports and submissions requesting a review of Centrelink’s rejection of his DSP application in December 2017. As a result of that additional information Centrelink obtained a DSP medical assessment recommendation from a Rehabilitation Counsellor. In April 2018 the Rehabilitation Counsellor, having considered the additional medical material, formed the view that the assessment completed by the JCA remained current and valid.[5]
[5] Exhibit 1, T Documents, T 16, pages 150 – 151, DSP medical assessment recommendation.
Mr Newman requested that his application be reviewed by a Centrelink Authorised Review Officer (“ARO”) within Centrelink.[6] The review by the ARO was unsuccessful on the grounds that Mr Newman’s impairments were either not fully treated and not fully stabilised, or did not attract 20 points or more under the Impairment Tables.[7]
[6] Exhibit 1, T Documents, T18, page 153, confirmation of request for review dated 25 May 2018.
[7] Exhibit 1, T Documents, T19, pages 154 – 159, ARO Decision and notes dated 4 June 2018.
Mr Newman then lodged an application for review with the Social Services and Child Support Division of this Tribunal (“SSCSD”). The SSCSD rejected Mr Newman’s claim and affirmed the ARO’s decision on 13 November 2018.[8]
[8] Exhibit 7, T Documents, T2, pages 8–14, SSCSD’s Decision and Reasons for Decision dated 13 November 2018.
Mr Newman has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages 1–7, Application for Review of Decision dated 10 December 2018.
At the hearing Mr Newman was represented by his wife (now separated), Ms Patricia Newman, who is his current carer. Dr Peter Bevan, Mr Newman’s General Practitioner since 2001, was called by Mr Newman and gave evidence by telephone.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(e)Mr Newman must have a physical, intellectual or psychiatric impairment/s;
(f)Mr Newman’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[10] and
(g)Mr Newman must have a continuing inability to work.
[emphasis added]
[10] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Newman meets the Section 94 Requirements is the date of the claim (in this instance as at 23 May 2017[11]), unless Mr Newman becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[12] Therefore, in order to qualify for DSP Mr Newman must have met the Section 94 Requirements between 23 May 2017 and 23 August 2017 (“Qualification Period”).
[11] The date Mr Newman’s DSP application was lodged.
[12] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Newman’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[13]
DID MR NEWMAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
[13] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]. and on appeal, Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[14]
Mr Newman’s Medical Conditions
[14] Determination, s 3.
Ischaemic Heart Disease (“IHD”)
Mr Newman’s IHD was diagnosed in May 2015 by coronary angiography.[15]
[15] Exhibit 1, T Documents, T 14, page 139, medical report of Dr Bevan dated 16 June 2017.
In April 2016 Dr Joanne Neil, Staff Specialist Cardiologist, reported that she had recommended Mr Newman undertake cardiac rehabilitation with a view to education and supervised exercise.[16]
[16] Exhibit 1, T Documents, T7, pages 109 – 110, report of Dr Neil dated 30 April 2016.
In November 2016 Dr Neil reported that Mr Newman had attended cardiac rehabilitation and had improved somewhat in his understanding of the importance of exercise and management of his lifestyle and that his coronary artery disease was stable.[17]
[17] Exhibit 1, T Documents, T14, pages 140 – 141, report of Dr Neil dated 18 November 2016.
In July 2017 Dr Bevan reported that Mr Newman’s IHD was permanent and causing fatigue and dyspnoea and that Mr Newman’s condition would likely deteriorate within the next 2 years.[18]
[18] Exhibit 1, T Documents, T 11, page 123, medical certificate Dr Bevan dated 6 July 2017.
Type II Diabetes
In April 2016 Dr Neil reported that Mr Newman had Type II diabetes which was poorly controlled.[19]
[19] Exhibit 1, T Documents, T7, pages 109 – 110, report of Dr Neil dated 30 April 2016.
In June 2017 Dr Bevan reported that Mr Newman’s diabetes was poorly controlled and that he was at high risk of complications such as diabetic nephropathy and peripheral vascular disease.[20]
[20] Exhibit 1, T Documents, T 14, page 139, medical report of Dr Bevan dated 16 June 2017.
In July 2017 Dr Bevan reported that Mr Newman’s Type II diabetes was permanent and causing fatigue and that Mr Newman’s condition was likely to deteriorate within the next 2 years.[21]
[21] Exhibit 1, T Documents, T 11, page 123, medical certificate Dr Bevan dated 6 July 2017.
In September 2017 a diabetes clinic assessed Mr Newman’s diabetes and referred him to a podiatrist, rheumatologist and optometrist/ophthalmologist for review.[22]
[22] Exhibit 1, T Documents, T 23, pages 237 – 238, diabetes clinic report of 25 September 2017.
In October 2017 Mr Newman was reviewed by Dr O’Callaghan, Rheumatologist, who reported that:[23]
·Mr Newman’s diabetes had caused symptomatic peripheral neuropathy involving both feet although there was no objective signs;
·Mr Newman’s diabetes was being managed with oral medication and diet; and
·Mr Newman’s medical conditions are stable and chronic, and he has a significant disability.
[23] Exhibit 1, T Documents, T 14, pages 145 – 146, report of Dr O'Callaghan dated 24 October 2017.
Mental Health
In April 2016 Dr Neil reported that Mr Newman had anxiety and seemed quite depressed but that he was unwilling to discuss it.[24]
[24] Exhibit 1, T Documents, T7, pages 109 – 110, report of Dr Neil dated 30 April 2016.
In June 2017 Dr Bevan reported that Mr Newman had a long history of anxiety and depression since at least 2001[25] but he was resistant to counselling and medication.[26]
[25] Exhibit 1, ST Documents, ST2, page 2, report of Dr Bevan 9 October 2003.
[26] Exhibit 1, T Documents, T 14, page 139, medical report of Dr Bevan dated 16 June 2017.
In July 2017 Dr Bevan reported that Mr Newman’s anxiety and depression was permanent and stable and caused poor memory, poor mood and poor concentration.[27]
[27] Exhibit 1, T Documents, T 11, page 123, medical certificate Dr Bevan dated 6 July 2017.
On 25 September 2017 Mr Newman had a psychiatric consultation with Dr Jataveda Mahapatra. Dr Mahapatra reported that Mr Newman presented with major depressive disorder with anxious distress and advised that he had started him on pharmacological regime to be gradually titrated. Dr Mahapatra referred Mr Newman to a psychologist for cognitive behavioural therapy. Dr Mahapatra also recommended a CT scan of Mr Newman’s brain be conducted in order to rule out any organic cause of depression and cognitive deficits. In Dr Mahapatra’s opinion Mr Newman was not fit for work for more than 2 years due to ongoing impact of symptoms (low mood, poor memory, anxiety and panic, poor concentration).[28]
[28] Exhibit 1, T Documents, T 14, page 143, report of Dr Mahapatra dated 26 September 2017.
Dyslipidaemia
In April 2016 Dr Neil reported that Mr Newman had dyslipidaemia.[29]
[29] Exhibit 1, T Documents, T7, pages 109 – 110, report of Dr Neil dated 30 April 2016.
Shoulders
In October 2003 Mr Newman was experiencing pain in both shoulders. An X-ray and ultrasound of both shoulders indicated normal appearance.[30]
[30] Exhibit 1, ST Documents, ST1, page 1, X-ray report of 3 October 2003.
In June and July 2016 Mr Newman had an ultrasound-guided injection into the subdeltoid/subacromial bursa of his right shoulder.[31]
[31] Exhibit 1, T Documents, T23, pages 223-224, Ultrasound reports dated 28 June 2016 and 12 July 2016.
In 2016 Mr Newman had 5 sessions of physiotherapy treatment for his shoulder. Ms Mandeep Singh, Physiotherapist, reported that Mr Newman thought the treatment had not helped and she had discharged him with a home exercise program. Ms Singh suggested further review by Mr Newman’s doctors as conservative management had not assisted.[32]
[32] Exhibit 1, T Documents, T23, page 228, Report of Ms Singh dated 24 October 2016.
In March 2017 Mr Newman had an ultrasound of both shoulders which found mild bilateral subdeltoid/subacromial bursitis. Dr Ravi Sidhu, Radiologist, recommended that an ultrasound-guided bursal injection may be of benefit.[33]
[33] Exhibit 1, T Documents, T10, pages 121-122, ultrasound report dated 7 March 2017.
In April 2017 Mr Newman had an MRI of his right shoulder which found supraspinatus, infraspinatus and subscapularis tendinopathy and subacromial/subdeltoid bursitis.[34]
[34] Exhibit 1, T Documents, T 14, page 142, MRI report dated 24 April 2017.
In December 2017 Mr Newman was reviewed by an orthopaedic registrar who reported that Mr Newman told her he had had right shoulder pain for three years and left shoulder pain the 12 months. The orthopaedic registrar reported that:[35]
·on examination Mr Newman continued to show restricted movement in both shoulders largely due to pain; and
·in their opinion it was likely that Mr Newman also has left shoulder adhesive capsulitis of the glenohumeral joint as well as the above right shoulder conditions; and
·it is possible in time he would have is small improvement in his pain and range of movement, but it is unlikely he would return to normal.
[35] Exhibit 1, T Documents, T 14, page 144, report of orthopaedic Department dated 4 December 2017.
In October 2017 Dr O’Callaghan reported that:[36]
(a)Mr Newman has adhesive capsulitis of the right shoulder and rotator cuff dysfunction at both shoulders;
(b)Mr Newman’s upper limb function is reduced by his shoulder problems and he cannot lift his arms above shoulder level;
(c)as a result of his shoulder condition Mr Newman needs assistance with dressing, and putting on shirts;
(d)Mr Newman’s medical conditions are stable and chronic, and he has a significant disability.
[36] Exhibit 1, T Documents, T 14, pages 145 – 146, report of Dr O'Callaghan dated 24 October 2017.
Sleep Apnoea
In October 2017 Mr Newman was reviewed by Dr O’Callaghan who reported that Mr Newman has documented sleep apnoea but was not currently using a continuous positive airway pressure machine (“CPAP”).[37]
[37] Exhibit 1, T Documents, T 14, pages 145 – 146, report of Dr O'Callaghan dated 24 October 2017.
Hypertension
In 2019 Dr Bevan reported that Mr Newman had hypertension since 2001 which was permanent.[38]
[38] Exhibit 1, ST Documents, ST23, pages 47-49, report of Dr Bevan provided to Centrelink in 2019.
Spinal Condition
In October 2017 a CT scan of Mr Newman’s lumbosacral spine found no abnormalities other than a minor annular disc bulge at the L4/5 level with early facet arthropathy.[39]
[39] Exhibit 1, T Documents, T 23, pages 247-248, CT report dated 25 October 2017.
In October 2017 Dr O’Callaghan reported that:[40]
(a)Mr Newman has cervical and lumbar spondylosis with moderately severe disease documented on scans;
(b)Mr Newman’s lower back pain results in his being unable to sit or walk for extended periods and has difficulty putting on his socks;
(c)Mr Newman is able to drive a car but only for short distances;
(d)Mr Newman has difficulty walking up and down stairs because of his chronic low back pain;
(e)Mr Newman’s medical conditions are stable and chronic and he has a significant disability.
[40] Exhibit 1, T Documents, T 14, pages 145 – 146, report of Dr O'Callaghan dated 24 October 2017.
Conclusion on Impairments
The Secretary accepts that Mr Newman had Impairments which satisfied section 94(1)(a) of the Act during the Qualification Period.[41]
[41] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 June 2019, at paragraph 40.
In light of the above evidence the Tribunal finds that during the Qualification Period Mr Newman suffered from Impairments (namely, IHD, Diabetes, Anxiety and Depression, Dyslipidaemia, Shoulder Impairments, Sleep Apnoea, Hypertension and a Spinal Impairment) for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
DO MR NEWMAN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B) OF THE ACT?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[42] They are function based[43] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[44]
[42] Determination, ss 4(2) and 5(2)(a).
[43] Determination, ss 5(2)(b) and (c).
[44] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[45]
(f)the condition causing that impairment is “permanent”; and
(g)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[45] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[46]
[46] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Newman’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[47]
(h)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(i)the condition has been fully treated;
(j)the condition has been fully stabilised; and
(k)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[47] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[48] the following is to be considered:[49]
(l)whether there is corroborating evidence of the condition; and
(m)what treatment or rehabilitation has occurred in relation to the condition; and
(n)whether treatment is continuing or is planned in the next 2 years.
[48] For the purposes of ss 6(4)(a) and (b) of the Determination.
[49] Determination, see s 6(5).
A condition is fully stabilised[50] if:[51]
(o)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
(p)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;[52] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[50] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[51] Determination, see s 6(6).
[52] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Impairment Tables Mr Newman’s medical history, in relation to the condition causing the Impairments, must be considered.[53]
HEART IMPAIRMENT
[53] Determination, see s 6(2).
Is Mr Newman’s Heart impairment permanent and likely to persist for at least 2 years?

It is not in dispute that the medical evidence supports a finding that Mr Newman’s Heart Impairment was permanent during the Qualification Period. Therefore, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Newman’s Impairment has to be assessed against the descriptors[54] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an Impairment Rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[55]
[54] Determination, see ss 3 and 5(3).
[55] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of impairment.
The impairment of a person must 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.[56]
[56] Determination, see s 6(1).
Pursuant to the Determination the following information:
(q)must be taken into account in applying the Tables:[57]
(iii)the information provided by the health professionals specified in the relevant Table; and
(iv)any additional medical or work capacity information that may be available; and
(v)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(r)must not be taken into account:[58]
(vi)symptoms reported by Mr Newman in relation to his condition where there is no corroborating evidence; [emphasis added]; and
(vii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Newman’s local community.
[57] Determination, see s 7.
[58] Determination, see s 8.
Which Tables are appropriate is determined by:[59]
(s)identifying the loss of function; then
(t)referring to the Table related to the function affected; then
(u)identifying the correct impairment rating.
[59] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[60]
[60] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[61]
[61] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[62]
[62] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[63]
[63] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
The appropriate Table is Table 1 which deals with functioning related to Physical Exertion and Stamina.
The introduction to Table 1 provides as follows:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
o    a report from the person’s treating doctor;
o    a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
o    a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
o    results of exercise, cardiac stress or treadmill testing.
The Secretary submits that a 10-point (moderate) Impairment Rating is appropriate. Mr Newman contends that his Heart Impairment attracts a 20-point (severe) Impairment Rating.
A moderate functional impact on activities requiring physical exertion or stamina exists where:
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
A severe function impact exists where:
(1)       The person:
(a)       usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
(i)        walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(iii)      use public transport without assistance; or
(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
(b)       has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
At the hearing Ms Newman said Mr Newman:
·cannot walk far
·uses a walker or holds on to things
·is exerted from walking to the mailbox
In Mr Newman’s written statement, he stated that:[64]
·He could walk up to 15 minutes depending on how he felt that day;
·He could sit up for 30 minutes
·Lift up to 2 kg
·Stand for 5 minutes
·Drive for up to 20 minutes
·He could carry an empty rubbish bin
·He could walk around the house unaided
·He could feed the dogs on and off
[64] Exhibit 1, ST Documents, ST30, pages 80-109, “AAT2 Evidence Rejection 2017 Disability Support Pension”.
In 2017 Dr Bevan reported that Mr Newman could mow for 15 minutes before becoming short of breath.[65]
[65] Exhibit 1, ST Documents, ST11, pages 17-18, AusSuper Assessment completed by Dr Bevan in 2017.
Mr Newman said the time frames in his statement were estimates. Mr Newman acknowledged at the hearing that he was able to walk from the car to the house during the Qualification Period.
The contemporaneous statement is more likely to be a reflection of Mr Newman’s condition in 2017. The Tribunal appreciates that it can be difficult three years later to recall accurately how a condition impacted a person’s functional ability.
Dr Bevan told the Tribunal that Mr Newman’s Heart Impairment causes fatigue and dyspnoea. He also said that Mr Newman’s diabetes would be causing similar fatigue symptoms.
On the first day of the hearing it became apparent that Dr Bevan’s use of the word “stabilised” may not accord with the meaning under the Act. As a result, Dr Bevan was provided with a copy of the relevant parts of the legislation and the Tables. The hearing resumed for a second day in order for Dr Bevan to provide further evidence. At the resumed hearing Dr Bevan made it clear that he is not an occupational physician and only has general practitioner expertise.
At the resumed hearing Dr Bevan said Mr Newman needed someone to walk with him in case he needed assistance.
Dr O’Callaghan referred to Mr Newman being unable to walk far because of lower back pain, not IHD.
No reference was made in the contemporaneous medical reports of Mr Newman being unable to walk without the assistance of a device.
Dr Bryan Wong reported in 2019 that Mr Newman’s condition has obviously worsened and he could now only walk 10 meters before needing to stop. This indicates a deterioration since the Qualification Period and would be relevant for any subsequent application for the DSP. One thing of note from this report however is that Dr Wong says Mr Newman can still walk independently without aid.[66]
[66] Exhibit 1, ST Documents, ST16, page 25, Medical Report authored by Dr Bryan Wong (GP) dated 10 October 2019.
Based on the evidence available the Tribunal is not persuaded that the functional impact of Mr Newman’s Heart Impairment alone during the Qualification Period (which is nearly three years ago) warrants 20-points. Mr Newman’s Diabetes Impairment is not considered permanent (see below) and therefore the impacts of this condition cannot be taken into account in applying the Tables. The Tribunal finds that an Impairment Rating of 10 points is more appropriate.
If this condition has deteriorated since the time under review Mr Newman is entitled to make a new DSP application.
DYSLIPIDAEMIA IMPAIRMENT
Is Mr Newman’s Dyslipidaemia Impairment permanent and likely to persist for at least 2 years?
In relation to the Dyslipidaemia condition, Dr Bevan confirmed at the hearing that Mr Newman had been treated with medication since October 2009 and that the condition was stable.
It was accepted by the Secretary that this condition can therefore be considered permanent.
However, there is insufficient medical evidence to determine whether this condition was having any impact on Mr Newman’s ability to function during the Qualification Period and therefore, it cannot be considered in relation to this DSP application.
HYPERTENSION IMPAIRMENT
Is Mr Newman’s Hypertension Impairment permanent and likely to persist for at least 2 years?
At the hearing Dr Bevan said:
(a)Mr Newman’s hypertension was under control during the Qualification Period and that he had recommended medications and lifestyle changes as treatment;
(b)Mr Newman “was doing his best” but his depression affects his motivation.
It was accepted by the Secretary that this condition can therefore be considered permanent.
However, there is insufficient medical evidence to determine whether this condition was having any impact on Mr Newman’s ability to function (and what that impact was) during the Qualification Period and, therefore, it cannot be considered in relation to this DSP application.
SLEEP APNOEA IMPAIRMENT
Is Mr Newman’s Sleep Apnoea Impairment permanent and likely to persist for at least 2 years?
At the hearing Dr Bevan confirmed that Mr Newman’s Sleep Apnoea condition was mild and that he did not require a CPAP.[67]
[67] See also Exhibit 1, ST Documents, ST24, pages 50-53, Report authored by Dr Bevan in 2019 entitled Depression/Anxiety PTSD.
As a result, and given that there is no evidence establishing what impact, if any, this condition has on Mr Newman’s ability to function, this condition does not attract an Impairment Rating.
MENTAL HEALTH IMPAIRMENT
Is Mr Newman’s Mental Health Impairment permanent and likely to persist for at least 2 years?
A diagnosis of a mental health condition was made by a psychiatrist in September 2017 (which is required by the Act before a mental health condition can be considered permanent and before an Impairment Rating can be assigned). This diagnosis was made after the Qualification Period. However, there is sufficient other medical evidence to conclude that Mr Newman has suffered from anxiety and depression for a long time. In 2002 Mr Newman had been diagnosed by a psychiatrist with a work related condition of adjustment disorder with depressed and anxious mood.[68] The Tribunal is prepared to accept that Mr Newman’s Mental Health was fully diagnosed.
[68] Exhibit 1, ST Documents, ST5, pages 7-9, Report authored by unknown doctor dated 11 July 2002.
The issue is whether the condition can be said to be fully treated and stabilised. Pharmacological treatment had not commenced during the Qualification Period.
Mr Newman first attended Dr Mahapatra in September 2017, after the Qualification Period. Mr Newman told the Tribunal he had “seen heaps” of psychologists and psychiatrists since early 2000. There are no details about these attendances or what treatment was provided and persisted with. Dr Bevan confirmed at the hearing that Mr Newman had had no psychological or psychiatric treatment before Dr Mahapatra since 2001. This is confirmed in a psychiatrist’s report from July 2002 where it was noted that Mr Newman had stopped seeing his psychiatrist.[69] The psychiatrist (whose name has been redacted) believed Mr Newman should return to see a psychiatrist and required ongoing treatment.
[69] Exhibit 1, ST Documents, ST5, pages 7-9, Report authored by unknown doctor dated 11 July 2002.
Dr Mahapatra recommended Mr Newman have cognitive behavioural therapy (“CBT”) with a psychologist, but Mr Newman refused stating, “I don’t have faith in them at all”.
Ms Newman told the Tribunal that Dr Bevan decided not to follow Dr Mahapatra’s recommendations because of Mr Newman’s views on the matter and because he was stable on Zoloft.
In these circumstances it is clear that Mr Newman’s Mental Health Impairment had not been fully treated during the Qualification Period. The treatment recommenced by Dr Mahapatra was reasonable and a common psychological treatment for people suffering from anxiety and depression.
Mr Newman had not been reviewed nor had any psychological therapy, as recommended, during the Qualification Period. As a result, Mr Newman’s mental health condition cannot be considered fully treated and stabilised at the Qualification Period and therefore no Impairment Rating can be assigned.
SPINAL IMPAIRMENT
Is Mr Newman’s Spinal impairment permanent and likely to persist for at least 2 years?
The Secretary submits that Mr Newman’s Spinal Impairment was not fully diagnosed, treated and stabilised during the Qualification Period.
There is no medical evidence before the Tribunal concerning Mr Newman’s Spinal Impairment prior to or during the Qualification Period. In particular, there is no reference to any attempted treatment. As a result, the Spinal Impairment cannot be considered permanent during the Qualification Period and no Impairment Rating can be assigned.
DIABETES IMPAIRMENT
Is Mr Newman’s Diabetes impairment permanent and likely to persist?
The medical evidence demonstrates that Mr Newman’s Diabetes Impairment was not fully treated and stabilised during the Qualification Period.
Dr Bevan told the Tribunal that although Mr Newman has been on varying medications his diabetes was poorly controlled during the Qualification Period. Dr Bevan also reported that, after the Qualification Period, Mr Newman saw a podiatrist for footcare (in September 2017) and diabetic nurses (in September 2017 and September 2018).
During the Qualification Period Mr Newman’s diabetes was poorly controlled and he was yet to be reviewed by appropriate specialists.
In these circumstances Mr Newman’s Diabetes Impairment cannot be considered permanent and no Impairment Rating can be assigned.
SHOULDER IMPAIRMENT
Is Mr Newman’s Shoulder Impairment permanent and likely to persist?
It is not in dispute that Mr Newman had a bilateral bursitis condition during the Qualification Period. The issue is whether this condition had been fully treated and stabilised.
Mr Newman had been treated with two injections into the shoulder, physiotherapy and electronic impulse. During the Qualification Period Mr Newman had not been reviewed or assessed by a specialist, in particular by an orthopaedic specialist. Mr Newman is due to be reviewed by Dr Whittle.[70]
[70] Exhibit 1, ST Documents, ST20, pages 35-38, Report authored by Dr Bevan in 2019 entitled Bilateral Shoulder Disorder.
The Secretary submits that Mr Newman did not have specialist review until after the Qualification Period and therefore the Shoulder Impairment cannot be considered fully diagnosed, fully treated and fully stabilised.
It is correct that Mr Newman did not see a specialist until two months after the Qualification Period. It is not clear whether there was any treatment available.
In these circumstances the Shoulder Impairment cannot be considered fully treated and stabilised and therefore no Impairment Rating can be assigned.
Even if it was presumed that there was no treatment which would result in a significant improvement in Mr Newman’s ability to function, the most number of points which could be assigned under Table 2 of the Impairment Tables is 5 points because of the following evidence.
Mr Newman’s evidence at the hearing was that during the Qualification Period:
·he could hold a pencil
·he could not remember if he could do up buttons or tie shoelaces during the qualification period
·he could not put on a shirt
·he could use a computer for short periods
·he could pick up a litre of milk
·he cannot do the dishes
·his wife assisted him in the shower; and
·he can only lift his arms “so much”.
Dr Bevan told the Tribunal Mr Newman:
·     might be able to lift a litre of milk.
·     could hold a pencil
·     could not do up buttons or laces
·     could use a keyboard for short periods of 5 to 10 minutes.
·     could not unscrew a lid; and
·     could turn pages with difficulty.
Dr Bevan’s evidence is slightly inconsistent with what he wrote in his reports in 2019. In those reports’ Dr Bevan wrote that:[71]
·Mr Newman could lift a 1 litre box of milk; and
·Mr Newman could sit at a computer for 10-15 minutes at a time.
[71] Exhibit 1, ST Documents, ST20, pages 35-38, Report authored by Dr Bevan in 2019 entitled Bilateral Shoulder Disorder.
Ms Newman also gave the following evidence at the hearing:
·During the Qualification Period she and Mr Newman had separated but were living under one roof. Ms Newman and their daughter lived upstairs and Mr Newman lived downstairs
·If Mr Newman needed assistance he would call out to her. She was often with him in any event as he needed help getting up and down, showering etc.
·She prepared meals for Mr Newman
·She cleaned for Mr Newman
·She usually took the rubbish out
·Mr Newman would sometimes carry an empty bin
·Mr Newman would try to do things
·To occupy his time Mr Newman rested, napped, went to doctors’ appointments, searched on the computer for information regarding his health conditions, sat outside with the puppies, ate meals, watched the news
·Mr Newman was still driving, although rarely - he could drive to the corner store
·Ms Newman said if he drove, she was often with him and would help him with his seatbelt. She acknowledged that he could struggle with the seatbelt on his own, albeit with pain
·Ms Newman acknowledged that if Mr Newman was able to drive and this meant that he could get in and out of the car by himself, could use the brakes and turn the steering wheel
·Ms Newman said it is now impossible for Mr Newman to drive safely
·Mr Newman did not assist with parenting during the Qualification Period
·She cannot recall if Mr Newman could hold or use a pen but thought if he did it would only be minimal use
·Ms Newman helps Mr Newman with showering, pulling up his pants, occasionally assists him using the toilet
·Mr Newman typed his own statement for the purpose of the hearing
·During the Qualification Period Mr Newman bred Doberman dogs but because of his condition she did most of the caring for the puppies. Sometimes Mr Newman would sit with the puppies to watch them
·Even though they have a large yard, there was not a lot of requirement to mow because there was a drought
·Mr Newman tried to mow using a ride on mower but the sun and fatigue and decreased stamina made it difficult for him, and turning the wheel was getting harder
·Mr Newman stopped mowing before he lodged the DSP application
·Mr Newman’s stamina and endurance has deteriorated since the Qualification Period; and
·Mr Newman does not use the assistance of a walker.

Ms Newman also provided substantial written submissions and the Tribunal has taken these submissions and evidence into account. There is no requirement to recount all of those submissions in full. As explained at the hearing the Tribunal is obligated to refer and rely on the corroborating evidence in forming its decision.
Mr Newman stated he could drive for 20 minutes.
There is also evidence that Dr Boney, Neurologist, diagnosed Mr Newman with carpel tunnel syndrome in July 2018. Mr Newman accepted at the hearing that this condition falls outside the Qualification Period and cannot be considered for the purpose of this DSP application.
CONCLUSION
Given that Mr Newman’s permanent Impairment attracts an Impairment Rating of 10 points (not the requisite 20-points) during the Qualification Period it is unnecessary for the Tribunal to consider whether Mr Newman had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Mr Newman’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b) of the Act.
Clearly some of Mr Newman’s medical conditions have deteriorated. It is open to Mr Newman to reapply for the DSP if he has not already done so.
DECISION
The decision under review is affirmed.

I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

....................................[SGD].................................
Associate
Dated: 11 May 2020

Date(s) of hearing:
Date reserved:

29 August 2019, 30 January 2020 and 16 April 2020

16 April 2020

Advocate for the Applicant:

Applicant:

Ms P Newman

In person

Advocate for the Respondent: Ms L Palmer, Seconded Lawyer

Solicitors for the Respondent: Services Australia

[2020] AATA 1259

11 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Date(s) of hearing: Date reserved:	29 August 2019, 30 January 2020 and 16 April 2020 16 April 2020
Advocate for the Applicant: Applicant:	Ms P Newman In person
Advocate for the Respondent:	Ms L Palmer, Seconded Lawyer
Solicitors for the Respondent:	Services Australia