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

Nicholas and Secretary, Department of Social Services (Social services second review) [2019] AATA 872 (15 May 2019)
Division:GENERAL DIVISION
File Number:2018/5848
Re:Pharyn Nicholas
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:15 May 2019
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 (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
15 May 2019
BACKGROUND AND CLAIMS HISTORY

On 6 September 2017 Mr Pharyn Nicholas (“Mr Nicholas”) lodged a claim for Disability Support Pension (“DSP”), describing his medical conditions as follows:[1]
severe o/a rt hip condition permanent
o/a lumbar spine and disc prolapse condition permanent
also left hip and right and left shoulder and neck pain at times from bricklaying occupation
left knee severed patella approx. 27 years ago
specialist – 20% permanent disability
haemochromatosis
(“Claimed Medical Conditions”).
[1] Exhibit 1, T Documents, T 15, pages 72 – 103, Mr Nicholas’s Claim for DSP dated 6 September 2017.
On 13 September 2017 an occupational therapist from the Assessment Services Division of the Department of Human Services (“Centrelink”) conducted an assessment of
[2] Exhibit 1, T Documents, T 16, pages 104 – 105, Assessment Services Recommendation for DSP medical
eligibility dated 13 September 2017.
Mr Nicholas’ medical records and provided Centrelink with a recommendation regarding whether Mr Nicholas was medically eligible for DSP. According to the assessor Mr Nicholas’ conditions were not fully diagnosed, treated and stabilised and therefore he was “manifestly medically ineligible” for DSP.[2]
As a result of the Assessment Services recommendation, Centrelink determined on
[3] Exhibit 1, T Documents, T 17, pages 106 -107, Rejection of DSP claim dated 30 October 2017.
13 October 2017 to reject Mr Nicholas’ claim for DSP.[3]
Mr Nicholas then submitted a medical report from Dr Ravi Bundellu, General Practitioner, dated 26 October 2017. Dr Bundellu reported that Mr Nicholas:[4]
(a)had lumbar spine disc degenerative disease which was permanent;
(b)had been referred to the orthopaedic clinic but his condition is not operable;
(c)has severe osteoarthritis in his right hip and is waiting on an orthopaedic surgeon surgical waiting list for right hip replacement for which there is no immediate surgery date available;
(d)is currently treating his conditions with pain relief medication such as anti-inflammatories and codeine;
(e)is totally incapacitated for work; and
(f)has a poor prognosis.
[4] Exhibit 1, T Documents, T 18, pages 108 – 109, Report of Dr Bundellu dated 26 October 2017.
An occupational therapist from Assessment Services conducted a further file review of Mr Nicholas’ claim on 29 November 2017 and recommended to Centrelink that Mr Nicholas be reviewed by a Job Capacity Assessor (“JCA”) in light of the fact that Dr Bundellu had reported that there was no further treatment available for Mr Nicholas’ lumbar spine condition.[5]
[5] Exhibit 1, T Documents, T 19, pages 110 – 112, Assessment Services Recommendation for DSP medical eligibility dated 29 November 2017.
On 30 November 2017 Mr Nicholas had an x-ray of his right hip which found that the features were consistent with grade 4 osteoarthritis and there were features of the left hip that suggested grade 2 osteoarthritis.[6]
[6] Exhibit 1, T Documents, T 20, page 113, X-ray report dated 30 November 2017.
On 20 March 2018 Redcliffe Hospital advised Mr Nicholas that he was on the orthopaedic clinic waiting list as a category three and that he would be notified as soon as an appointment was available.[7]
[7] Exhibit 1, T Documents, T 21, page 114, Referral confirmation dated 20 March 2018.
On 5 April 2018 Dr Win Yi, General Practitioner, reported that Mr Nicholas’ current medical conditions were:[8]
(a)osteoarthritis in the right hip - Mr Nicholas is waiting to be reviewed by an orthopaedic team at the Redcliffe Hospital;
(b)L4/5, L5/S1 disc narrowing - Mr Nicholas is awaiting review by the Sunshine Coast Hospital orthopaedic team although surgery may not make any difference at this point;
(c)Hypocholesterolanaemia;
(d)Haemochromatosis;
(e)Carpal tunnel syndrome – bilateral; and
(f)Depression due to pain and limitation in his daily activity - Mr Nicholas is not taking any medication for his depression.
[8] Exhibit 1, T Documents, T 22, pages 115 – 116, Report of Dr Yi dated 5 April 2018.
On 12 March 2018 Mr Nicholas was referred to have a JCA. The JCA was conducted face-to-face with Mr Nicholas by a registered psychologist and accredited exercise physiologist. The JCA reported that:[9]
(a)Mr Nicholas’ spinal disorder was fully diagnosed but not fully treated and stabilised as further specialist review (such as by a musculoskeletal physiotherapist or general orthopaedic surgeon) is yet to be undertaken and this kind of review could reasonably be expected to improve the management of his condition and medical stability over the next two years; and
(b)osteoarthritis in the hip is fully diagnosed but not considered fully treated and stabilised as further specialist review in the form of an orthopaedic review was yet to be undertaken and this could reasonably be expected to improve management of the condition and medical stability over the next two years.
[9] Exhibit 1, T Documents, T 23, pages 117 – 125, JCA report dated 9 April 2018.
As a result of the JCA report, Centrelink advised Mr Nicholas that the decision to reject his claim for DSP had been referred to an Authorised Review Officer (“ARO”) for review.[10] Prior to the review Mr Nicholas’ matter was referred to the Health Professional Advisory Unit (HPAU) for an opinion regarding whether or not his spinal and hip conditions were permanent. A physiotherapist conducted the assessment and on 15 May 2018 reported that in their opinion:[11]
[10] Exhibit 1, T Documents, T 25, page 127, Letter from Centrelink to Mr Nicholas dated 11 April 2018.
[11] Exhibit 1, T Documents, T 26, pages 128 – 131, Health Professional Advisory Unit opinion dated 15 May 2018.
(a)Mr Nicholas’ lumbar spine condition was not fully diagnosed, treated and stabilised because:
(i)imaging was recommended to confirm a diagnosis of lumbar disc herniation where a patient has persistent pain neurological abnormalities after 4 to 6 weeks of conservative therapy;
(ii)research indicated that surgical treatment of the lumbar disc herniation is recommended if there is a severe progressive neurological deficit or failure to improve after 6 weeks of conservative therapy;
(iii)there was no medical evidence to confirm the treatments of analgesic medication and physiotherapy;
(iv)although Dr Bourne, Director of Orthopaedics, wrote in August 2017 that surgery was infrequently appropriate nor beneficial in most spine conditions, Dr Bourne did not specifically state whether Mr Nicholas would benefit from surgery;
(b)Mr Nicholas’ right hip osteoarthritis could be considered fully diagnosed, treated and stabilised because although he had not yet had the recommended total hip replacement surgery, Redcliffe Hospital had indicated it could be up to 2 years before his initial appointment therefore it was unlikely that there would be a significant improvement in Mr Nicholas’s ability to function within two years of his claim for DSP; and
(c)an impairment rating of 10 impairment points under Table 3 was appropriate for the right hip osteoarthritis.
The review by the ARO was unsuccessful on the grounds that Mr Nicholas’ impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[12]
[12] Exhibit 1, T Documents, T 27, pages 132 – 136, ARO Decision and notes dated 4 June 2018.
Mr Nicholas then lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[13] The SSCSD rejected Mr Nicholas’ claim and affirmed the ARO’s decision on 10 September 2018.[14]
[13] Exhibit 1, T Documents, T 28, pages 137 – 138, Request for statement dated 22 June 2018.
[14] Exhibit 1, T Documents, T 2, pages 6 – 13, SSCSD’s Decision and Reasons for Decision dated 10 September 2018.
Mr Nicholas has sought a review of the SSCSD’s decision by this Tribunal.[15]
[15] Exhibit 1, T Documents, T 1, pages 1- 5, Application for Review of Decision dated 4 October 2018.
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”):-
(a)Mr Nicholas must have a physical, intellectual or psychiatric impairment/s.
(b)Mr Nicholas’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”).[16]
(c)Mr Nicholas must have a continuing inability to work.
[my emphasis]
[16] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Nicholas meets the Section 94 Requirements is the date of the claim (in this instance as at 6 September 2017), unless Mr Nicholas becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[17] Therefore, in order to qualify for DSP Mr Nicholas must have met the Section 94 Requirements between 6 September 2017 and 6 December 2017 (“Qualification Period”).
[17] 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 Nicholas’ impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[18]
DID MR NICHOLAS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A) OF THE ACT?
[18] 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”.[19]
Mr Nicholas’ Medical Conditions
[19] Determination, s 3.
Lumbar Spine
In September 2016 Mr Nicholas had a x-ray of his lumbar spine which found moderate changes of disc and facet joint osteoarthritis with disc narrowing.[20]
[20] Exhibit 1, T Documents, T 5, page 53, X-ray report dated 26 September 2016.
In October 2016 Dr Allen Gray, General Practitioner, reported that
[21] Exhibit 1, T Documents, T 8, page 56, Medical certificate of Dr Gray dated 26 October 2016.
Mr Nicholas’ permanent back strain which was causing pain and stiffness and that his prognosis was uncertain.[21]
In February 2017 Dr Gray reported that Mr Nicholas was having physiotherapy for a permanent disc lesion in his back which was causing pain and difficulty walking and that his prognosis was uncertain.[22]
[22] Exhibit 1, T Documents, T 9, page 57, Medical certificate of Dr Gray dated 13 February 2017.
In August 2017 Dr Bundellu reported that Mr Nicholas had osteoarthritis lumbar spine disc prolapse which was permanent and causing him low back pain which was likely to deteriorate within the next two years.[23]
[23] Exhibit 1, T Documents, T 12, page 67, Medical certificate of Dr Bundellu dated 3 August 2017.
On 4 August 2017 Dr Russell Bourne, Director of Orthopaedics, at the Sunshine Coast Hospital reported that the hospital did not provide specific spine surgical or neurosurgical services and instead an assessment of patients is performed by musculoskeletal trained physiotherapist or general orthopaedic surgery. Following assessment treatment pathway options and management were to be discussed. Dr Bourne noted that “surgery is infrequently appropriate nor beneficial in most spine conditions”.[24]
[24] Exhibit 1, T Documents, T 13, pages 68-9, Letter from Dr Bourne dated 4 August 2017.
In July 2018 Mr Nicholas had a CT scan of his lumbar spine which indicated degenerative changes throughout his lumbar spine. The radiologist suggested that a CT guided right L5 nerve root injection of steroids or local anaesthetic be offered to see if this gives any symptomatic relief.[25]
[25] Exhibit 1, T Documents, T 29, page 139, X-ray report dated 3 July 2018.
In October 2018 Dr Oksana Myroniuk, General Practitioner, completed a medical questionnaire regarding his opinion about Mr Nicholas’ conditions as at
6 September 2017. These questionnaires are used to assist people to ask their doctors the correct questions for the purpose of an assessment under the Tables. Dr Myroniu reported that:[26]
[26] Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 January 2019, Attachment A, Medical
Questionnaire completed by Dr Myroniuk dated 17 October 2018.
(a)Mr Nicholas has no stability in his spine and that the pain is constant;
(b)the spinal condition affects Mr Nicholas’ gait, flexion and abduction;
(c)Mr Nicholas prefers to stand leaning against a wall;
(d)Mr Nicholas has been treated with pain killers, physiotherapy, CT injections and steroids;
(e)Mr Nicholas on a waiting list;
(f)an appropriate impairment rating under Table 4 is 10 points due to moderate impairment;
(g)an appropriate impairment rating under Table 3 is 20 points; and
(h)Mr Nicholas is unable to sit and get up without extra help.
In October 2018 Dr Craig Winter, Neurosurgeon and Spinal Surgeon, reported that Mr Nicholas’ history suggested that much of his right leg pain was due to his hip rather than potential nerve root compression in his lumbar spine. Dr Winter explained that Mr Nicholas’ pain radiates to the anterior thigh, around the knee, on the inside of the thigh to the groin and that this was not in keeping with lower lumbar nerve root compression especially in the setting of known hip osteoarthritis. In Dr Winter’s opinion Mr Nicholas “is not currently a surgical candidate for his lumbar spine. The way forward would be continued physiotherapy, weight loss and behaviour modification. Once he gets his hip replaced then increased movement and exercise hopefully will reduce his weight and have a secondary beneficial effect on his back”.[27]
[27] Exhibit 3, Report of Dr Winter dated 11 October 2018.
In November 2018 Dr Myroniuk reported that Mr Nicholas had constant back pain with his L4 – S1 disc problems with nerve impingement and that surgery was not advised at this stage.[28]
[28] Exhibit 5, Report of Dr Myroniuk dated 26 November 2018.
Right Hip
In September 2016 Mr Nicholas had a x-ray of his pelvis and right hip which found severe osteoarthritis in his right hip and minor changes of osteoarthritis in his left hip.[29]
[29] Exhibit 1, T Documents, T 5, page 53, X-ray report dated 26 September 2016.
In September 2016 Dr Gray reported that Mr Nicholas was experiencing temporary pain in his right hip which was causing him to limp.[30]
[30] Exhibit 1, T Documents, T 6, page 54, Medical certificate of Dr Gray dated 26 September 2016.
In February 2017 Dr Gray reported that Mr Nicholas had osteoarthritis in his right hip which was permanent and that his prognosis was uncertain.[31]
[31] Exhibit 1, T Documents, T 9, page 57, Medical certificate of Dr Gray dated 13 February 2017.
In August 2017 Dr Bundellu referred Mr Nicholas to the orthopaedic clinic at Redcliffe Hospital for review and reported that Mr Nicholas was waiting for a total hip replacement operation.[32]
[32] Exhibit 1, T Documents, T 12, page 67, Medical certificate of Dr Bundellu dated 3 August 2017.
In August 2018 Mr Nicholas was assessed by Mr Ian Seels, an advanced practice physiotherapist and specialist musculoskeletal physiotherapist at Sunshine Coast Hospital. In Mr Seels’ opinion Mr Nicholas’ right lower quadrant signs and symptoms were consistent with right hip osteoarthritis and that his lumbosacral pain was secondary to a markedly hyper mobile hip. In his opinion the nonsurgical active management did not have anything further to offer and Mr Nicholas’ position on the orthopaedic waiting list had therefore been reactivated. Mr Nicholas will remain a category 2 patient and will receive a surgical opinion in due course.[33]
[33] Exhibit 1, T Documents, T 32, page 152, Report of Dr Seels stated 21 August 2018.
In November 2018 Dr Myroniuk reported that Mr Nicholas was awaiting a total hip replacement within the next 2 years.[34]
[34] Exhibit 5, Report of Dr Myroniuk dated 26 November 2018.
Haemochromatosis
In April 2018 Dr Yi reported that Mr Nicholas has had haemochromatosis since 2002.[35]
[35] Exhibit 1, T Documents, T 22, pages 115 – 116, Report of Dr Yi dated 5 April 2018.
In November 2018 Dr Myroniuk reported that as a result of his haemochromatosis
[36] Exhibit 5, Report of Dr Myroniuk dated 26 November 2018.
Mr Nicholas needs regular venesection and blood tests which can increase the pain in his joints.[36]
Conclusion on Impairments
The Secretary accepts that Mr Nicholas had Impairments which satisfied section 94(1)(a) of the Act during the Qualification Period.[37]
[37] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 3 February 2017, at para 38.
In light of the above evidence the Tribunal finds that during the Qualification Period
Mr Nicholas suffered a Spinal Impairment and Hip Impairment for the purposes of the Act and that the requirement in section 94(1)(a) has been met.
In relation to the haemochromatosis, hypocholesterolanaemia, carpal tunnel syndrome – bilateral and depression conditions, there is insufficient medical evidence before the Tribunal such that it cannot determine whether the conditions are fully diagnosed, treated and stabilised. Nor has the Tribunal been provided with information regarding how these conditions impacted on Mr Nicholas’ ability to function.
DO MR NICHOLAS’ 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.[38] They are function based[39] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[40]
[38] Determination, ss 4(2) and 5(2)(a).
[39] Determination, s 5(2)(b) and (c).
[40] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[41]
(a)the condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[41] 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.[42]
[42] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2014] FCA 368, at [12].
Mr Nicholas’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[43]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[43] 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[44] the following is to be considered:[45]
(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.
[44] For the purposes of ss 6(4)(a) and (b) of the Determination.
[45] Determination, see s 6(5).
A condition is fully stabilised[46] if:[47]
(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:
(v)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;[48] or
(vi)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[46] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[47] Determination, see s 6(6).
[48] 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.
However, before applying the Impairment Tables Mr Nicholas’ medical history, in relation to the condition causing the Impairments, must be considered.[49]
[49] Determination, see s 6(2).
RIGHT HIP IMPAIRMENT
Is Mr Nicholas’ Right Hip impairment permanent and likely to persist
The medical evidence indicates that Mr Nicholas’ right Hip Impairment was fully diagnosed, fully treated and fully stabilised in the Qualification Period because, although he had not yet had hip replacement surgery, it was unlikely that he would be able to have this surgery and be rehabilitated within the next two years. This was accepted by the Secretary.[50] Therefore an Impairment Rating can be assigned.
[50] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 January 2019, para 39.
Using the Impairment Tables
The level of impact of Mr Nicholas’ Hip Impairment has to be assessed against the descriptors[51] (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).[52]
[51] Determination, see ss 3 and 5(3).
[52] 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.[53]
[53] Determination, see s 6(1).
Pursuant to the Determination the following information:
(a)must be taken into account in applying the Tables:[54]
(i)the information provided by the health professionals specified in the relevant Table; and
(ii)any additional medical or work capacity information that may be available; and
(iii)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(b)must not be taken into account in applying the Tables:[55]
(i)symptoms reported by Mr Nicholas in relation to his condition where there is no corroborating evidence;
(ii)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Nicholas’ local community.
[54] Determination, see s 7.
[55] Determination, see s 8.
Which Tables are appropriate are determined by:[56]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[56] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[57]
[57] 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.[58]
[58] Determination, see s 11(1)(c).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[59]
[59] 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.[60]
[60] Determination, see s 11(5).
Evidence Identifying the Loss of Function
In August 2017 Dr Bundellu reported that Mr Nicholas lived by himself and has a lot of difficulty doing day-to-day chores such as putting on his pants and shoes.[61] Attached to the referral letter was a pain questionnaire completed by Mr Nicholas in which Mr Nicholas indicated that:[62]
·sometimes his hip pain was so severe that he could not bear it;
·the pain often stops him from going to sleep;
·he can only walk for a short time such as from one room to another room;
·there are many things he cannot do for himself and he rarely gets enough help;
·the pain makes it extremely difficult for him to enjoy his life and most the time causes difficulties in his relationships;
·his hip pain makes it extremely difficult to manage financially; and
·his hip pain was the same then as it was 6 months earlier.
[61] Exhibit 1, T Documents, T 11, page 63-67 Medical Report authored by Dr Bundellu with attached questionnaire dated 3 August 2017.
[62] Exhibit 1, T Documents, T 11, pages 64 -67 Medical Report authored by Dr Bundellu with attached questionnaire dated 3 August 2017.
In May 2018 Dr Yi told the HPAU assessor that Mr Nicholas:[63]
(a)limps while he walks;
(b)is able to stand for more than five minutes but needs to move around;
(c)uses a walking stick;
(d)does not require assistance from another person to mobilise; and
(e)is unable to walk far due to his hip pain and needs to drive to local amenities.
[63] Exhibit 1, T Documents, T 26, pages 128 – 131, Health Professional Advisory Unit opinion dated 15 May 2018.
In November 2018 Dr Myroniuk reported that:[64]
(a)the pain from the right hip was limiting Mr Nicholas’ activities and affected his sleep;
(b)Mr Nicholas was unable to sit for more than 10 minutes and preferred to stand or lie;
(c)Mr Nicholas uses a walking stick to help with mobility ;
(d)his hip condition affects his driving; and
(e)his pain is constant and is rated at 6/10.
[64] Exhibit 5, Report of Dr Myroniuk dated 26 November 2018.
At the hearing Mr Nicholas said he can drive but he has difficulty getting into and out of the car and he can bend forward but with difficulty.
The question therefore is what is the relevant Table to be considered and what, if any, Impairment Rating should be assigned.
Relevant Impairment Table and Impairment Rating
In light of the evidence, Table 3 of the Determination, which deals with Lower Limb Function, is the relevant Table.
The introduction to Table 3 provides that:

·    Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·    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:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments.

·    For the purposes of this Table lower limbs extend from the hips to the toes.

The Secretary submitted that the appropriate Impairment Rating under Table 3 is 10 points.[65] Mr Nicholas submitted that the appropriate Impairment Rating under Table 3 is 20 points.
[65] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 17 January 2019, para 41.
Table 3 provides that the following must be satisfied for a 10 point impairment rating:

10
There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame)

Note:    The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

Table 3 provides that the following must be satisfied for a 20 point impairment rating:

67.     20

There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

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

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

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

Mr Nicholas relies on the report of General Practitioner Dr Myroniuk dated 17 October 2018 stating that as at the Qualification Period his lower limb impairment attracted an Impairment Rating of 20 points under Table 3.
The HPAU and Dr Yi considered that an Impairment Rating of 10 points was appropriate.
The Secretary submits that the opinions of Dr Yi and the HPAU should be preferred to Dr Myroniuk because:[66]
a.    It is not apparent from Dr Myroniuk's report when she began treating the Applicant, or whether she was familiar with the Applicant's presentation and level of functioning as at the qualification period;
b.    the report of General Practitioner Dr Win Yi dated 5 April 2018 (T22, p115) confirms that she has been personally treating the Applicant for his medical conditions since 21 May 2015, and would therefore be more familiar with his level of impairment and functional abilities at the qualification period;
c.    Dr Yi's reporting to the HPAU confirmed that the Applicant did not require assistance from another person to mobilise³, or stand from a sitting position. This is consistent with the Applicant's own evidence to the AAT1, that he can walk around a carpark or shopping centre using a shopping trolley and/or walking stick, and must use his arms to lift himself out of a chair;
d.    Dr Myronuik does not indicate in her report that the Applicant requires assistance from another person to walk from a carpark into a shopping centre, walk around a shopping centre, or stand from a sitting position.
[66]    Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 January 2019, para 42.
In the questionnaire Dr Myroniuk was asked about Mr Nicholas’ functional ability as at the Qualification period, yet Dr Myroniuk’s first consultation with Mr Nicholas was in October 2018 when she completed the questionnaire (see para 25).[67] On the other hand Dr Yi was Mr Nicholas’ treating General Practitioner since 21 May 2015.
[67] Exhibit 6, Medicare records. Claims History and PBS Claims History for the period 1 January 2015 – 25 January 2019, page 17.
Mr Nicholas told the Tribunal that
on the day he went in to have the questionnaire completed by Dr Yi, Dr Yi was on holidays so he was given an appointment with

Dr Myroniuk, another doctor at the same medical centre, instead. Dr Myroniuk had access to Mr Nicholas’ medical records, radiologist reports and CT scans. Mr Nicholas also acknowledged that he would have answered her questions.
The Tribunal accepts that Dr Myroniuk would have been able to review Mr Nicholas’ medical records and form an impression from them and Mr Nicholas’ instructions regarding his functional ability. However, it is still the case that Dr Myroniuk cannot have known from her own observation how Mr Nicholas was during the Qualification Period. It appears from Dr Myroniuk’s report that there has been a deterioration in Mr Nicholas’ condition between the Qualification Period and October 2018. The Tribunal can only concern itself with how the condition under consideration impacted on Mr Nicholas during the Qualification Period.
In the circumstances the Tribunal considers that more weight should be given to the opinion of Dr Yi, Mr Nicholas long-term treating doctor and therefore finds that an appropriate Impairment Rating for Mr Nicholas’ Hip Impairment is 10 points.
Even if the Tribunal accepted that Mr Nicholas’ condition fell somewhere in between a 10 and 20 point rating, which it does not, the Determination provides that if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[68]
LUMBAR SPINE IMPAIRMENT
[68] Determination, see s 11(1)(c).
Is Mr Nicholas’ Lumbar Spine impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr Nicholas’ lumbar spine condition was fully diagnosed during the Qualification Period. The issue is whether the condition was fully treated and fully stabilised.
The Secretary contends that Mr Nicholas’ lumbar spine condition was not fully treated and fully stabilised because:[69]
(a)There is no medical evidence of what treatment, if any, has been undertaken by the Applicant for his spinal condition prior to the qualification period;
(b)In his DSP claim lodged on 6 September 2017 the Applicant advised he had been 'referred to Sunshine Coast Hospital - Orthopaedic spine' (T15, p98);
(c)Referral letters dated 4 August 2017 from the Sunshine Coast Hospital and Health Service confirm that the Applicant was assessed as a category 3 patient and was then awaiting specialist orthopaedic consultation (T13, p68- 69);
(d)In his report dated 26 October 2017, Dr Bundellu reported the Applicant 'was referred to Orthopaedic clinic but his condition is not operable' (T18, p108). The Secretary notes Dr Bundellu is not an orthopaedic or spinal surgeon and as such, his statement that the condition is not operable should be afforded little to no weight. His opinion is in fact subsequently contradicted following examination of the Applicant by the Sunshine Coast Hospital spine clinic;
(e)In his face to face assessment with the Job Capacity Assessor on 9 April 2018 the Applicant advised that he is on the wait list for specialist review with the Sunshine Coast Hospital and Health Service (T23, p119); and
(f)On 10 August 2018 Specialist Musculoskeletal Physiotherapist and clinical leader with the orthopaedic spine clinic, Dr Ian Seels, reviewed the Applicant personally and prepared a subsequent report dated 21 August 2018. In his report Dr Seels outlines his physical examination of the Applicant and advises:
'My impression is that Pharyn's right lower quadrant signs and symptoms are consistent with right hip OA. I suspect his lumbosacral pain is secondary to a markedly hypermobile hip. I do not think that non-surgical active management has anything to offer Pharyn. He has thus been discharged and his position on the orthopaedic waiting list activated. He will remain a category-2 patient and will receive a surgical opinion in due course.' (T32, p152).
[69] Exhibit 2, Secretary's Statement of Facts and Contentions dated 17 January 2019, para 45.
The issue is whether Mr Nicholas was likely to have had surgery within two years which would have resulted in a significant improvement in his ability to function.
According to information obtained by the Secretary from the Queensland Government Health Service, 99% of category 3 patients have a specialist consultation within 365 days. After that appointment a patient is then re-categorised. If surgery is recommended, the elective surgery wait list for category 1 patients is 30 days and for category 3 patients surgery is recommended within 365 days.[70] That is category 3 patients should be assessed and have any necessary surgery within two years of referral. Mr Nicholas submitted that he telephoned Sunshine Coast Hospital and they told him it was a 24 month waiting list for surgery.[71] Despite this, there was no need for the surgery to take place at the Sunshine Coast, as there are public hospitals in Brisbane to which

Mr Nicholas could have been referred. In addition Dr Bourne indicated that this kind of surgery could not have occurred at Sunshine Coast Hospital in any event so its waiting times are not relevant.
[70] Secretary’s Supplementary Written Submissions dated 28 March 2019, Attachment AA.
[71] Mr Nicholas’ reply to the Secretary’s Supplementary Written Submissions dated 9 April 2019.

What is clear is that during the Qualification Period, Mr Nicholas still needed to have specialist referral for opinion and management. For some reason Mr Nicholas was not placed back onto the surgical waiting list until April 2018, four months after the Qualification Period. It is impossible to say at that stage that Mr Nicholas’ Spinal Condition was fully treated. Surgery was still an option as at the Qualification Period, the advice from Dr Winter that surgery would be of no benefit was not proffered until October 2018 which is well after the Qualification Period ceased.
Dr Winter’s opinion that Mr Nicholas was not a surgical candidate was not reported until 10 months after the Qualification Period. Mr Seels’ opinion that the nonsurgical active management did not have anything further to offer was not reported until eight months after the Qualification Period.[72]
[72] Exhibit 1, T Documents, T 32, page 152, Report of Dr Seels stated 21 August 2018.
The Tribunal has to consider the Impairments during the Qualification Period, not with the benefit of hindsight.
Even if it were known at the Qualification Period that surgery would not be reasonable treatment, there is no substantive corroborating evidence of analgesic medication and continued physiotherapy treatment having been completed which was also referred to by Dr Winter as appropriate treatment.
Given that as at the Qualification Period Mr Nicholas was being treated with medication but had not had any physiotherapy or specialist review, the Tribunal finds that

Mr Nicholas’ Spinal Impairment was neither fully treated nor fully stabilised and therefore no Impairment Rating can be assigned.
CONTINUING INABILITY TO WORK
As Mr Nicholas’ permanent Impairments only attracted an Impairment Rating of 10 points during the Qualification Period it is unnecessary for me to consider whether
Mr Nicholas 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.
The Tribunal notes that Mr Nicholas was advised by Centrelink prior to the hearing that, pursuant to a subsequent DSP claim, he has now qualified for the DSP.
DECISION
Mr Nicholas’s claim fails because he did not qualify for DSP during the Qualification Period under s 94(1)(b) of the Act.
The decision under review is affirmed.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.........................[SGD].........................................
Associate
Dated: 15 May 2019

Date of hearing: 8 March 2019

Date reserved: 10 April 2019

Applicant: In person

Advocate for the Respondent: Ms Jasmine Forsyth

Solicitors for the Respondent: Department of Human Services

[2019] AATA 872

15 May 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Jurisdiction

Standing

Date of hearing:	8 March 2019
Date reserved:	10 April 2019
Applicant:	In person
Advocate for the Respondent:	Ms Jasmine Forsyth
Solicitors for the Respondent:	Department of Human Services