O'Regan and Secretary, Department of Social Services (Social services second review)

O'Regan and Secretary, Department of Social Services (Social services second review) [2018] AATA 1501 (1 June 2018)

Division:GENERAL DIVISION
File Number(s): 2017/2410
Re:Michael O'Regan
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:1 June 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[sgd]......................................
Member D K Grigg
Catchwords
SOCIAL SECURITY – disability support pension – whether conditions permanent – whether 20 points or more under the impairment tables during the relevant period – 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
1 June 2018
INTRODUCTION AND CLAIMS HISTORY

On 3 February 2016 Mr O’Regan lodged a claim for Disability Support Pension (“DSP”).[1]
[1] Exhibit 1, T Documents, T5, pages 65-95, Mr O’Regan’s Claim for DSP dated 3 February 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr O’Regan’s claim for DSP on the basis that he did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T7, pages 108-109, Rejection of claim for DSP dated 12 April 2016.
Mr O’Regan sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that his permanent impairments did not attract an impairment rating of 20 points or more.[3]
[3] Exhibit 1, T Documents, T9, pages 121 – 128, Decision of ARO and notes dated 3 November 2016.
Mr O’Regan then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr O’Regan’s claim and affirmed the ARO’s decision on 14 March 2017.[4]
[4] Exhibit 1, T Documents, T2, pages 4-11, SSCSD’s Decision and Reasons for Decision dated 14 March 2017.
Mr O’Regan now seeks a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T1, pages 1-3, Application for Second Review of Decision dated 26 April 2017.

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 O’Regan must have a physical, intellectual or psychiatric impairment;
(b)Mr O’Regan’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”).[6]
(c)Mr O’Regan must have a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr O’Regan meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 3 February 2016), unless

Mr O’Regan became qualified within 13 weeks of lodging the claim, in which case his start day is the day he became qualified.[7] Therefore, in order to qualify for DSP Mr O’Regan must have met the Section 94 Requirements between 3 February 2016 and 4 May 2016 (“Qualification Period”).
[7] 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 O’Regan’s impairments after the Qualification Period can only be considered if it “casts light on” the functional impact of the impairments during the Qualification Period.[8]

DID MR O’REGAN HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?

[8] 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; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

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”.[9]

Mr O’Regan’s Medical Conditions
[9] Determination, s 3.

Diabetes – Peripheral Neuropathy (Hands and Feet)

In May 2015, Dr Lawrence Ng, General Practitioner, reported that Mr O’Regan had Type 2 diabetes mellitis and had regular reviews with his endocrinologist, podiatrist and optometrist.[10] Dr Ng reported that:[11]
(a)as a result of the diabetes Mr O’Regan had:
(i)chronic constant bilateral peripheral neuropathy with reduced sensation in both feet to his ankles;
(ii)fatigue, poor endurance and exercise tolerance;
(b)the diabetes was expected last more than 24 months; and
(c)the effect on Mr O’Regan’s ability to function was uncertain and depends on his compliance with this treatment in the management of his diabetes (which was suboptimal) and whether he could lose weight as he is morbidly obese.
[10] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
[11] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
In December 2015 Dr Ng reported that Mr O’Regan’s diabetes was causing a constant burning sensation and pain in his feet and toes which was moderate in severity and that the future planned treatment was chronic pain management, as required, and neuropathic pain medication if the symptoms progress. Dr Ng reported that the diabetes:[12]
(a)impacts on Mr O’Regan’s ability to mobilise safely as he cannot feel the surfaces he is walking on and therefore is more prone to injuries to his feet and to accidents; and
(b)is expected to persist for more than 24 months but the impact of the condition on Mr Regan’s ability to function was expected to be uncertain and was very dependent on his maintaining optimal glycaemic control and controlling symptoms of medication and modifying lifestyle factors.
[12] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
In December 2015 Dr Ng reported that:[13]
(a)Mr O’Regan had constant tingling and numbness in the median nerve distribution of both hands which was moderate to severe;
(b)there is a mild-to-moderate functional impact on activities using his hands as he has impaired sensation with fine motor skills, and therefore has difficulty handling small objects and doing up buttons; and
(c)Mr O’Regan was still on the orthopaedic waiting list to be assessed for surgery.
[13] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
In July 2016 Dr Ng reported that Mr O’Regan’s diabetes and diabetic peripheral neuropathy was currently being treated with neuropathic pain medication, but that the condition was not stabilised as it will take some time and is dependent upon his glycaemic control.[14]
[14] Exhibit 1, T Documents, T 30, pages 223 – 224, Medical report of Dr Ng dated 1 July 2016.

Heart

In May 2015 Dr Ng reported that Mr O’Regan had ischaemic heart disease (“IHD”) and that:[15]
(a)it began in February 2015 and was confirmed by a cardiologist in May 2015;
(b)it was being treated with medications;
(c)it was likely to last for more than 24 months but the effect on Mr O’Regan’s ability to function was uncertain and dependent upon his treatment compliance, weight loss and lifestyle and improving the glycaemic control of his diabetes;
(d)he had referred Mr O’Regan to a cardiologist outpatient clinic; and
(e)Mr O’Regan had fatigue and shortness of breath on exertion which was resolved by resting.
[15] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
In May 2015 Mr O’Regan underwent a myocardial perfusion study and had a CT scan of his heart which showed mild-to-moderate inferolateral wall myocardial ischaemia.[16]
[16] Exhibit 1, T Documents, T 23, page 193, Myocardial perfusion study and CT scan dated 21 May 2015.
In October 2015 Mr O’Regan had a coronary angiogram which indicated that he had:[17]
(a)severe right coronary artery disease;
(b)moderate left anterior descending coronary artery disease;
(c)moderate left circumflex coronary artery disease; and
(d)normal left ventricular systolic function.
[17] Exhibit 1, T Documents, T27, pages 201-202, Coronary angiogram dated 2 October 2015.
As a result of the angiogram results, Dr Bruno Jesuthasan, Consultant Cardiologist, recommended anticoagulant medication and risk factor modification with a follow-up in three months’ time.[18]
[18] Exhibit 1, T Documents, T 27, pages 201-202, Angiogram report dated 2 October 2015.
In December 2015 Dr Ng reported that Mr O’Regan had coronary artery disease and IHD and that:[19]
(a)in the future Mr O’Regan may have possible PCI (Percutaneous coronary intervention)/stenting in his right coronary artery;
(b)Mr O’Regan reports chest tightness and heaviness on exertion and uses a nitro lingual spray as required;
(c)Mr O’Regan has a marked reduction in exercise capacity and can have stable angina with exertion ;
(d)the condition is expected to last for more than 24 months and the effect on Mr O’Regan’s ability to function is uncertain as it depends on medical management, the management of his diabetes, lifestyle factors and procedural intervention for his coronary artery disease.
[19] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
In July 2016 Dr Ng reported that:[20]
(a)Mr O’Regan’s IHD and atrial fibrillation was stable and stationary, and he was receiving optimal treatment;
(b)Mr O’Regan has occasional symptoms of stable angina when he is exerting himself moderately;
(c)Mr O’Regan has annual reviews with his cardiologist; and
(d)Mr O’Regan has started on a weight loss management program.
[20] Exhibit 1, T Documents, T 30, pages 223 – 224, Medical report of Dr Ng dated 1 July 2016.

Spine

In July 2011 an x-ray of Mr O’Regan’s lumbosacral spine, sacrum and coccyx indicated that there was facet joint arthritis at the L4/5 and L5/S1, slight disc space narrowing at L5/S1 and lucency in the region of the coccyx with a small bony fragment at the level of the sacrococcygeal junction which may be a fracture.[21]
[21] Exhibit 1, T Documents, T14, page 169, X-ray report dated 1 July 2011.
In January 2015 an x-ray of Mr O’Regan’s lumbosacral spine showed mild thoracolumbar scoliosis but no fracture or significant degenerative features.[22]
[22] Exhibit 1, T Documents, T17, page 173, X-ray report dated 7 January 2015.
An x-ray of Mr O’Regan’s thoracic spine in April 2015 showed minor mid and lower thoracic scoliosis convex to the left, no fractures and minor degenerative changes with slight disc space narrowing and spur formation.[23]
[23] Exhibit 1, T Documents, T18, page 174, X-ray report dated 17 April 2015.
In May 2015 Dr Ng reported that Mr O’Regan had arthritis in his neck, lumbar and thoracic spine which he was treating with analgesias and that the planned treatment included physiotherapy and review by a chronic pain specialist and orthopaedic surgeon. [24]
[24] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015; T20, page 189, X-ray
report dated 14 May 2015.
A CT scan of Mr O’Regan’s lumbar spine in September 2015 showed there was a “bulging of disks … in the upper and mid lumbar spine [and] at L5/S1 there is a moderate-large left paracentral disc bulge obscuring compressing the left S1 nerve root in the lateral recess”.[25]
[25] Exhibit 1, T Documents, T 26, page 198, X-ray report dated 22 September 2015.
In December 2015 Dr Ng reported that:[26]
[26] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
(a)Mr O’Regan had degenerative disc and facet joint disease of the lumbar spine with left leg sciatica due to S1 nerve root compression;
(b)current treatment for his lumbar spine consisted of analgesics and in the future Mr O’Regan may have neurosurgery but was awaiting further imaging;
(c)Mr O’Regan’s current symptoms were chronic lumbar back pain with sciatica on a daily basis which could be moderate to severe when aggravated, left leg sciatica from back to the foot, and marked restriction of movement in forward flexion;
(d)Mr O’Regan’s symptoms persist despite treatment;
(e)Mr O’Regan cannot stand or sit in one position without significant pain for longer than 15 – 20 minutes, cannot bend forward or twist to lift objects without pain in lumbar spine and sciatica, and that significantly affects his mood;
(f)the condition is expected to persist for more than 24 months but is expected to significantly improve within the next two years if he has neurosurgical intervention but that it was not guaranteed; and
(g)if not treated, Mr O’Regan’s degenerative lumbar spine and function will deteriorate;
(h)Mr O’Regan had osteoarthritis in his cervical, lumbar and thoracic spine which he was treating with analgesics and physiotherapy;
(i)in the future it was planned for Mr O’Regan to undergo further physiotherapy, chronic pain management, orthopaedic surgery, guided cortisone injections, occupational therapy, dietician input, weight loss management and exercise physiotherapy;
(j)The osteoarthritis has a significant impact on Mr O’Regan’s mobility, endurance exercise, he needs assistance descending stairs, he has morning stiffness and pain his joints, pain moving his neck and spine, difficulty bending over to pick up light objects, pain in his hips and knees even when walking sometimes, pain in his finger joints and wrists, and manipulating objects can cause moderate to severe pain;
(k)the osteoarthritis condition is expected to persist for more than 24 months and will deteriorate within the next two years; and
(l)the osteoarthritis is affecting all his weight-bearing joints and hands and is progressive and Mr O’Regan will likely need joint replacement surgery in the future, but he has significant comorbidities which may impact on his ability to have surgery.
In July 2016 Dr Ng reported that:[27]
(a)Mr O’Regan has had lumbar pain for many years;
(b)it is not possible for Mr O’Regan to have physiotherapy and rehabilitation because he has been to physiotherapy previously and has not found it of any benefit, and there is no provision for him to have long-term physiotherapy rehabilitation under the Medicare Enhanced Primary Care Program and he cannot afford to pay for private physiotherapy; and
(c)he referred Mr O’Regan to a musculoskeletal doctor who administered cortisone and local anaesthetic injections and gave him an exercise program which Mr O’Regan reported had reduced his pain by 20%.
[27] Exhibit 1, T Documents, T 30, pages 223 – 224, Medical report of Dr Ng dated 1 July 2016.

Upper limbs

Wrists

In May 2013 Mr O’Regan was diagnosed with severe bilateral carpal tunnel conduction – delay.[28] Dr Bonev, Neurologist, recommended that Mr O’Regan have bilateral surgical carpal tunnel release.
[28] Exhibit 1, T Documents, T15, pages 170 – 171, Report of Dr Ventzi Bonev dated 14 May 2013.
Dr Ng reported in May 2015 that:[29]
(d)prior to surgery wrist splints and/or ultrasound-guided cortisone injections were being considered;
(e)Mr O’Regan had constant numbness and tingling in his hands and loss of sensation which resulted in him burning his fingers without knowing it ;
(f)the condition is likely to last for 12 to 24 months and the impact on his ability to function is uncertain; and
(g)Mr O’Regan has been on a waiting list for surgery since being diagnosed by Dr Bonev in 2013, and that he might have possible permanent sensory loss/disturbance because of the time the median nerves have been compressed in the carpal tunnel even if he has the decompressive surgery.
[29] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
In May 2015 Dr Ng reported that Mr O’Regan had arthritis in his wrists.[30] Dr Ng reported that planned treatment included physiotherapy and review by a chronic pain specialist and orthopaedic surgeon.
[30] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015; T21, page 190, X-ray
report dated 18 May 2015.
On 20 May 2015, Dr Ng referred Mr O’Regan to Dr Joerg Rhau, Orthopaedic Specialist for an urgent opinion and management regarding his severe bilateral carpal tunnel syndrome.[31]
[31] Exhibit 1, T Documents, T 22, pages 191 – 192, Letter to Dr Rhau dated 20 May 2015.
In December 2015 Dr Ng reported that Mr O’Regan had constant tingling and numbness in the median nerve distribution of both hands which was moderate to severe, producing a mild-to-moderate functional impact on activities using his hands as he has impaired sensation with fine motor skills, and therefore has difficulty handling small objects and doing up buttons. Mr O’Regan was still on the orthopaedic waiting list to be assessed for surgery.[32]
[32] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
In July 2016 Dr Ng reported that Mr O’Regan was still on the waiting list for surgery.[33]

Shoulders

[33] Exhibit 1, T Documents, T 30, pages 223 – 224, Medical report of Dr Ng dated 1 July 2016.

In January 2015 an x-ray of Mr O’Regan’s shoulders showed minor bilateral AC joint osteoarthrosis and calcific tendinosis.[34]
[34] Exhibit 1, T Documents, T17, page 173, X-ray report dated 7 January 2015.
In May 2015 Dr Ng reported that Mr O’Regan had osteoarthritis in his shoulders.[35] Dr Ng reported that planned treatment included physiotherapy and review by a chronic pain specialist and orthopaedic surgeon.
[35] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
Dr Ng reported in July 2016 that Mr O’Regan:[36]
(a)had bilateral subacromial bursitis, mild supraspinatus tendinopathy and osteoarthritis of his acromioclavicular joints;
(b)reported both his shoulders had been aching for many years;
(c)has a restricted range of motion in adduction to 90 – 100 degrees with pain and impingement;
(d)has received ultrasound-guided cortisone injections and was referred to Allied Health Services to see if he can achieve improved function; and
(e)will need to consider bilateral rotator cuff decompression surgery if there is no improvement.
[36] Exhibit 1, T Documents, 230, pages 223 – 224, Report of Dr Ng dated 1 July 2016.

Lower limbs

In August 2013 an x-ray of Mr O’Regan’s right knee indicated that there was a narrowing of the patellofemoral and medial compartments with marginal osteophyte formation, in keeping with osteoarthritis.[37]
[37] Exhibit 1, T Documents, T16, page 172, X-ray report dated 31 August 2013.
In May 2015 Dr Ng reported that Mr O’Regan had arthritis in his right knee and hips.[38] Dr Ng reported that planned treatment included physiotherapy and review by a chronic pain specialist and orthopaedic surgeon.
[38] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015; T20, page 189, X-ray
report dated 14 May 2015.

Other

Dr Bonev reported in May 2013 that Mr O’Regan had arterial hypertension, anxiety and depression, arthritis and was overweight.[39]
[39] Exhibit 1, T Documents, T15, pages 170 – 171, Report of Dr Ventzi Bonev dated 14 May 2013.
In May 2015 Dr Ng reported that Mr O’Regan had morbid obesity, obstructive sleep apnoea (severe) which was treated with a CPAP machine, non-melanotic skin cancers and solar skin damage.[40] Dr Ng indicated that these conditions are generally well managed and were causing minimal or limited impact on Mr O’Regan’s ability to function.
[40] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015.
In relation to Mr O’Regan’s morbid obesity, Dr Ng reported in July 2016 that he is currently undergoing weight loss management.[41]
[41] Exhibit 1, T Documents, T 30, pages 223 – 224, Report of Dr Ng dated 1 July 2016.

Conclusion on Impairments

The Secretary accepts that Mr O’Regan suffered from impairments for the purposes of section 94(1)(a) during the Qualification Period.[42]
[42] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 2 August 2017, para 23.
Given the medical evidence, the Tribunal finds that Mr O’Regan suffered from Spinal Impairments, Upper Limb Impairments, Lower Limb Impairments, Diabetes Impairment, Heart Impairment and a Morbid Obesity Impairment for the purposes of section 94(1)(a) of the Act during the Qualification Period.
While the Tribunal accepts that Mr O’Regan also has arterial hypertension, obstructive sleep apnoea and non-melanotic skin cancers and solar skin damage, there is insufficient medical evidence regarding these conditions, whether reasonable treatment has been undertaken, and what impact, if any, they are having on Mr O’Regan’s ability to function. These conditions therefore cannot be considered for the purposes of this DSP application.

DO MR O’REGAN’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?

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.[43] They are function based[44] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[45]
[43] Determination, s 4(2) and 5(2)(a).
[44] Determination, s 5(2)(b) and (c).
[45] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr O’Regan’s impairments if:[46]
(a)Mr O’Regan’s conditions causing the impairments are “permanent”; and
(b)the impairments that result from the conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[46] Determination, see s 6(3).
Mr O’Regan’s conditions can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[47]
(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.
[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 must be considered:[49]
(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.
[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]
(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;[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 can then 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 Tables the Tribunal must first consider Mr O’Regan’s medical history, in relation to the conditions causing the Impairments.[53]
[53] Determination, see s 6(2).
SPINAL IMPAIRMENT
Is Mr O’Regan’s Spinal – Chronic Pain Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Spinal Impairments are fully diagnosed. However, as at the Qualification Period, Mr O’Regan had not been seen by a pain specialist or been reviewed by an orthopaedic surgeon, which had been recommended by his treating practitioners.[54] Pain specialist management is reasonable treatment that is likely to improve functional ability for persons suffering from chronic pain. Dr Ng also reported that Mr O’Regan was likely to significantly improve with neurosurgery, if he is able to undergo the surgery.[55]
[54] Exhibit 1, T Documents, T19, pages 175 – 188, Medical report of Dr Ng dated 10 May 2015; T20, page 189, X-ray
report dated 14 May 2015.
[55] Exhibit 1, T Documents, T 29, pages 204 – 222, Medical report of Dr Ng dated 21 December 2015.
In the circumstances, this condition cannot be considered to have been fully treated and fully stabilised during the Qualification Period as required by the Act and therefore no Impairment Rating can be assigned.
HEART IMPAIRMENT
Is Mr O’Regan’s Heart Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Heart Impairment was fully diagnosed. However, at the Qualification Period, the Tribunal finds that it was unclear whether Mr O’Regan’s Heart Impairment was stable and whether the treatment recommended by the cardiologist was successful. Mr O’Regan told the Tribunal that he did not need a stent as postulated by Dr Ng, however, there is no corroborating evidence. If Mr O’Regan’s Heart Impairment is now fully treated and stabilised and still causing an impact on his ability to function, it is open to him to lodge a new DSP claim.
UPPER LIMB IMPAIRMENTS
Is Mr O’Regan’s Wrist Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Wrist Impairment is fully diagnosed. However, as the Secretary contends, it was not fully treated and stabilised during the Qualification Period because he was waiting to have decompression surgery, or cortisone injections which were recommended treatments to improve his ability to function.[56]
[56] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 2 August 2017, para 44.
Is Mr O’Regan’s Shoulder Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Shoulder Impairment is fully diagnosed. However, as the Secretary contends, it was not fully treated and stabilised during the Qualification Period because he was waiting to receive allied health services treatment.[57]
[57] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 2 August 2017, para 44.
LOWER LIMB IMPAIRMENTS
Is Mr O’Regan’s Diabetic Peripheral Neuropathy Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Diabetic Peripheral Neuropathy Impairment was fully diagnosed. However, as the Secretary contends, it was not fully treated and stabilised during the Qualification Period because it was contingent on Mr O’Regan maintaining optimal glycaemic control.[58] The evidence demonstrates that Mr O’Regan’s glycaemic control was improving and continuing to improve after the Qualification Period.[59]
[58] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 2 August 2017, para 45.
[59] Exhibit 1, T Documents, T30 at pages 223-224, Report: Dr Ng dated 1 July 2016.
If Mr O’Regan’s Diabetic Peripheral Neuropathy Impairment is now fully treated and stabilised and still causing an impact on his ability to function, it is open to him to lodge a new DSP claim.
Is Mr O’Regan’s Knee Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Knee Impairments are fully diagnosed. However, they were not fully treated and stabilised during the Qualification Period because he had not had specialist review or appropriate physiotherapy treatment, as planned by Dr Ng.[60]
MORBID OBESITY IMPAIRMENT
[60] Exhibit 1, T Documents, T19 at pages 175-188, DSP Medical Report: Dr Lawrence Ng dated 10 May 2015
Is Mr O’Regan’s Morbid Obesity Impairment permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr O’Regan’s Obesity Impairment was fully diagnosed. However, it was not fully treated and stabilised during the Qualification Period because he was still undergoing weight loss management.[61]
[61] Exhibit 1, T Documents, T30 at pages 223-234, Report: Dr Ng dated 1 July 2016.
WERE MR O’REGAN’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP, a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. Mr O’Regan does not qualify for DSP because none of his impairments are considered permanent and therefore cannot be assigned an Impairment Rating.
Subsequent medical reports indicate that surgery is not an option for Mr O’Regan’s Spinal Impairment[62] and he now has significant kidney failure. It may be that some of Mr O’Regan’s Impairment could now be considered permanent. It is open to Mr O’Regan to lodge a new claim for the DSP.
[62] Exhibit 3, Report of Dr McKay dated 2 December 2016.
DID MR O’REGAN HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has found that Mr O’Regan’s Impairments were not permanent as defined by the Act during the Qualification Period it is not necessary to consider whether Mr O’Regan had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr O’Regan’ claim fails because he did not qualify for DSP at the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

............................[sgd].....................................
Associate
Dated: 1 June 2018

Date of hearing:

30 April 2018

Applicant:

By telephone

Advocate for the Respondent:

Ms Jasmine Forsyth, Senior Government Lawyer

Solicitors for the Respondent:

Department of Human Services

[2018] AATA 1501

1 June 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	30 April 2018
Applicant:	By telephone
Advocate for the Respondent:	Ms Jasmine Forsyth, Senior Government Lawyer
Solicitors for the Respondent:	Department of Human Services