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

Ong; Secretary, Department of Social Services and (Social services second review) [2018] AATA 4410 (26 November 2018)
Division:General Division
File Number: 2017/1382
Re:Secretary, Department of Social Services
APPLICANT

AndIch-Hau Ong
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:26 November 2018
Place:Adelaide

The Tribunal sets aside the decision under review; and in substitution, decides that the Respondent was not eligible to receive the disability support pension as he has not satisfied the provision of s 94(1)(b) of the Social Security Act 1991.
................................[Sgd]......................................
Senior Member B J Illingworth
CATCHWORDS
SOCIAL SECURITY – Claim for Disability Support Pension – Physical, intellectual or psychiatric impairment – Multiple impairments – Whether a combined impairment rating of 20 points or more exists under the Impairment Tables – Whether fully diagnosed, fully treated and stabilised – Job Capacity Assessment Report considered – Medical reports considered – Decision under review set aside and substituted
LEGISLATION
Social Security Act 1991, ss 94(1), 94(2), 94(3B)
Social Security (Administration) Act 1999, s 4(1), Sch 2
CASES
Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Re Ulukut and Secretary, Department of Social Services [2014] AATA 399
Re Yazdari and Secretary, Department of Social Services [2014] AATA 34
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Senior Member B J Illingworth
26 November 2018
INTRODUCTION

This is an application by the Secretary, Department of Social Services (“the Applicant”) to review a decision of the Administrative Appeals Tribunal (“AAT1”) dated 6 February 2017, setting aside the decision of an Authorised Review Officer (“ARO”) who affirmed the decision of a delegate, namely that Mr Ong (“the Respondent”) did not have a total combined impairment rating of 20 points with respect to a number of medical conditions, and hence was not entitled to receive a Disability Support Pension (“DSP”).
The AAT1 substituted a decision that the Respondent satisfies the provisions of ss 94(1)(a), (b) and (c) of the Social Security Act 1991 (“the Act”), and is therefore qualified to receive DSP from the date of his application to the Tribunal, namely 3 November 2016.
The Applicant was represented by Ms Lee-Anne Odgers. The Respondent was self-represented and assisted by an interpreter.
BACKGROUND
The Respondent was born on 1 May 1965 and at the time of the hearing was aged 53 years. He was formerly employed by General Motors Holden (“GMH”) as a spot welder. It was during that employment that he started to suffer from various medical conditions.
In 1983 the Respondent became aware of neck and left shoulder pain and discomfort. This condition was initially intermittent. By the time he ceased employment at GMH at the end of 1986, his left shoulder pain was worse and constant and he also developed ongoing right shoulder pain, but less severe than his left shoulder. The pain in his shoulders was triggered by left and right arm movement.
The Respondent subsequently obtained employment as a fruit packer in Virginia. He said he was younger and fitter in those days and although the pain was bad he could cope with it.
By 2015 the Respondent said he was studying for a Diploma in Management. It was a one year course. The Respondent took longer than one year to complete that course of study because of his ongoing pain. He described suffering constant pain in his left and right shoulder and neck. His left shoulder pain was still worse than his right.
The Respondent completed the Diploma in May 2016, hence at the time of his DSP claim he was studying. He said he attended the relevant college one day a week and submitted assignments monthly online. Much of his study was online but his computer work was impacted upon by his medical condition.
On 28 July 2015, the Respondent contacted Centrelink and made a general enquiry about a DSP claim. The AAT1 wrongly referred to this date as the date of the Respondent’s DSP claim.
The Respondent in fact lodged his claim for DSP on 11 August 2015. The provisions in clause 4(1) of Schedule 2 to the Social Security (Administration) Act 1999 (the “Administration Act”) mean that the Respondent’s qualification and impairment ratings must be determined as at the date of his claim, and the only exception is where he is not qualified at the date of claim, but “will become qualified” and “becomes so qualified” within 13 weeks of lodging his claim.[1]
[1] See Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922; Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133; [2014] AATA 447; Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252; [2007] FCA 404.
Hence the qualification period for the purpose of assessing the within claim was 11 August 2015 to 10 November 2015 (“the Qualification Period”).
On 4 October 2015, an employee of Centrelink decided to reject the Respondent’s DSP claim. The Respondent requested an internal review on 10 October 2015.
On 20 November 2015, the ARO affirmed the original decision, namely that the Respondent was not qualified to receive DSP.
On 3 November 2016, the Respondent applied to the AAT1 for review of the ARO’s decision. The Respondent applied for review more than 13 weeks after being notified of the decision and therefore the AAT1’s decision to set aside the ARO’s decision could only take effect from the date of his application to the AAT1.[2]
[2] Social Security (Administration) Act 1999, s 147(8).
On 10 March 2017, the Applicant applied for second tier review (“AAT2”) of the AAT1’s decision.
ISSUES
The issue for the Tribunal is whether the Respondent was qualified to receive DSP in relation to the claim lodged at the Department on 11 August 2015, or within the Qualification Period.
The Tribunal must assess whether, during the Qualification Period, the Respondent:
(a)had a physical, intellectual or psychiatric impairment in accordance with s 94(1)(a) of the Act; and
(b)if so, had an impairment rating of at least 20 points under the Social Security (Tables for Assessment of Work-related Impairment for DSP) Determination 2011 (“the Determination”) in accordance with s 94(1)(b) of the Act; and
(c)if so, had a continuing inability to work in accordance with s 94(1)(c) of the Act.
THE LEGISLATIVE FRAMEWORK
The legislation relating to qualification for DSP, and the reference to the Impairment Tables is set out in the provisions of s 94(1) of the Social Security Act 1991 (“the Act”), which relevantly reads:
94 Qualification for Disability Support Pension
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work;
…
The provisions relating to whether the Respondent has a continuing inability to work is relevantly set out in s 94(2) of the Act:
94     Continuing inability to work
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b)In all cases – either:
(i)     the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)    if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
Note: For work see subsection (5).
(3)In deciding whether or not a person has a continuity inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person’s locally accessible labour market.
…
A severe impairment is defined pursuant to s 94(3B) of the Act:
94       Severe impairment
(3B)     A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:     A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:     A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment
Example 3:    A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
It follows that if the Respondent has a “severe impairment” within the meaning of subsection 94(3B), namely, an impairment which attracts 20 points or more under a single Impairment Table pursuant to the Determination, then he must only satisfy the cumulative requirements of ss 94(1)(a) and 94(1)(b).
If the Respondent is assigned 20 points under the Determination, but does not have a severe impairment as defined by s 94(3B) of the Act, for example has been assigned impairment ratings under a number of different Impairment Tables totalling 20 points, then the Tribunal must be satisfied that the Respondent has met the requirements of the program of support as provided in the Social Security (Active Participation for Disability Support Pension) Determination 2014.
IMPAIRMENT TABLES
Section 94(1)(b) of the Act specifically refers to the Impairment Tables. The Impairment Tables themselves are contained in the Determination.
“Impairment” is defined as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” is defined as “a medical condition” pursuant to s 3 of the Determination.
The Determination requires that for an assessment to be made and an impairment rating assigned, a person’s condition must be “permanent”. A condition can be classified as “permanent” if the person satisfies the provisions of subsections 6(4), (5) and (6) of the Determination:
6 Applying the Tables
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
Note: For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note: For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is fully stabilised if:
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)The person has not undertaken reasonable treatment for the condition and:
(i) significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or there is a medical or other compelling reason for the person not to undertake reasonable treatment
Note: For reasonable treatment see subsection 6(7)
Subsection 6(7) states that for the purposes of subsection 6(6), reasonable treatment is treatment that is:
(a)Available at a location reasonably accessible to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.
The information to be taken into account in applying the Impairment Tables are provided pursuant to s 7 of the Determination:
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
(2)A person may be asked to demonstrate abilities described in the Tables.
Information that must not be taken into account is referred to in s 8 of the Determination:
8Information that must not be taken into account in applying the Tables
(1)Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2)Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
It is important to note in assessing any medical evidence concerning the functional impact of the Respondent’s impairments provided after the Qualification Period, the reports can only be considered if they “cast light on” the functional impact of the impairments as at the Qualification Period.[3]
[3] Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404; (2007) 158 FCR 252; Gallacher v Secretary, Department of Social Sevices [2015] FCA 1123.
With respect to functional impact, one must appreciate the purpose of the Determination. In Re Ulukut and Secretary, Department of Social Services [2014] AATA 399 at [5], Senior Member Isenberg helpfully explains the operation of the Impairment Tables in that:
The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person's ability to work that results from the person's condition: s 3 of the Determination. A claimant's impairment is to be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person: s 6(1) of the Determination.
It is also important to only assign a single rating for a common or combined functional impairment; as prescribed by subsections 10(5) and (6) of the Determination:
10 Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
However if a single condition causes multiple impairments each impairment should be assigned a rating and assessed under the relevant Table.[4]
[4] The Determination s 10(3).
RESPONDENT’S MEDICAL EVIDENCE BEFORE THE AAT1
It is helpful to here consider the Respondent’s evidence that was before the AAT1 generally with respect to his medical conditions, and in particular during the Qualification Period.
The Respondent first consulted Dr Nguyen in 2013, and on 22 November 2013 Dr Nguyen diagnosed the Respondent with left elbow pain. X-rays of the left elbow at that time were unremarkable. The Respondent also had a blood test, which was also normal.[5]
[5] Exhibit A1, T19 pp 195-196.
In a medical certificate dated 13 June 2014, Dr Kurian diagnosed left shoulder bursitis and tennis elbow.
In a report dated 1 August 2015,[6] Dr Kurian said that she had known the Respondent for over 16 months, and opined that he had been suffering medical problems from 1985. Following an ultra sound, Dr Kurian diagnosed the Respondent as having mildly thickened Subacromial/Subdeltoid Bursa with bursal catching of the left shoulder. He had a cortisone injection on 10 June 2014, and on examination he had tenderness and restriction of movement to his left shoulder. He was referred to an orthopaedic specialist at the Royal Adelaide Hospital. The Tribunal notes to date the Respondent has not yet been given an appointment to see an orthopaedic surgeon.
[6] Exhibit A1, T19 p 192.
Medical certificates of Dr Kurian from 13 June 2014[7] referenced left shoulder Bursitis, however from 28 July 2015[8] the certificates referenced right shoulder joint bursitis (rather than left shoulder), knee osteoarthritis, and bilateral/prolapse haemorrhoids as the Respondent’s various medical conditions.
[7] Exhibit A1, T19 pp 197 – 199.
[8] Exhibit A1, T19 pp 200 – 204.
On 28 July 2015, being the same day the Respondent first contacted Centrelink with respect to a DSP claim, Dr Kurian certified the Respondent as suffering right shoulder joint bursitis.[9]
[9] Exhibit A1, T 19 p 200.
In a report dated 6 August 2015,[10] physiotherapist Phung Tran confirmed he was treating the Respondent for pain, left shoulder pain and left elbow/arm pain and weakness.
[10] Exhibit A1, T19 p 194.
Job Capacity Assessment Report

Following the lodging of the claim for DSP on 11 August 2015, and on 10 September 2015, a Job Capacity Assessment Report (“Report”)[11] referenced the Respondent as suffering onset left shoulder and elbow pain; which was permanent and fully diagnosed, but not treated and stabilised because further improvement would be expected to occur following a specialist’s review.
[11] Exhibit A1, T16 pp 174 – 178.
That Report also referred to the Respondent as having undergone a full hearing assessment, with the resultant diagnosis of mild sensorineural hearing loss bilaterally at 15.8%, and periods of tinnitus.[12] Hearing aids were recommended but the Respondent said he did not wear hearing aids back then because he could not afford them. The author of the Report opined that:[13]
Given that the client is currently not wearing hearing devices and would require some time to adjust to them, this condition was considered to be permanent and diagnosed but not fully treated and stabilised.
[12] Exhibit A1, T 19 p 194.
[13] Exhibit A1, T16 p 175.
The author of the Report said the Respondent’s temporary work capacity was assessed at 0 to 7 hours per week and that such reduced capacity was due to the likelihood of pending surgery and the current symptoms of pain and restricted movements. The Respondent’s capacity to work within two years with intervention was assessed between 23 to 29 hours per week.
The Applicant argued that no impairment rating should be attributed to the hearing loss because of the Respondent’s failure to wear hearing aids. However if the Tribunal was against the Applicant, an assessment of no more than 5 points should be given.
AAT1 DECISION UNDER REVIEW
The AAT1 relevantly found that the Respondent:
(a)suffers from a fully diagnosed, treated and stabilised condition of the left shoulder and elbow pain, and assigned 10 points under Table 2;
(b)suffers from a fully diagnosed, treated and stabilised condition of neck pain and assigned 5 points under Table 4; and
(c)suffers from a fully diagnosed, treated and stabilised condition of hearing loss and assigned 5 points under Table 11; and
(d)has a continuing inability to work.
Under heading “Consideration of the condition of the left shoulder and elbow”[14] the AAT1 decided that following several years of pain and restricted movement of the left arm and marginal response to a steroid injection, and notwithstanding further specialist assessment, “the chronicity and severity of the condition indicates it is unlikely there will be substantial improvement in Mr Ong’s function.” The AAT1 referenced evidence from the treating general practitioner (Dr Kurian) and Physiotherapist (Phung Tran) however there appears to be no medical evidence to support such a conclusion. At its highest those reports indicate his injuries are severe and would significantly affect his ability to find and maintain suitable employments.[15]
[14] Exhibit A1, T2 p 15.
[15] Exhibit A1, T19 p 194.
The AAT1 decided this condition had been fully diagnosed, treated and stabilised because reasonable treatment had been undertaken and any further reasonable treatment was unlikely to result in significant functional improvement in the next two years. The medical evidence does not appear to support that decision. The various medical certificates of Dr Kurian report that with respect to the left shoulder as at 13 June 2014 the prognosis is uncertain, which remained the same to 22 August 2014. The medical certificates thereafter only refer to the Respondent’s right shoulder in respect of which it is said the prognosis is 13 to 24 months in which it will affect the Respondent’s capacity to work or study. Interestingly the AAT1 does not deal with the evidence of Dr Kurian with respect to the right shoulder bursitis and makes no assessment of that condition.
Under heading “Consideration of the condition of hearing loss”[16] the AAT1 noted that:
While hearing aids may be helpful for Mr Ong, the medical view of the tribunal member is that hearing aids would be unlikely to overcome the existing difficulties with background noise and hearing on the telephone. The audilogical [sic] evidence does not suggest that use of hearing aids would eliminate difficulty hearing on the telephone or enable normal hearing in the presence of background noise. There would likely be benefit but not significant functional improvement.
[16] Exhibit A1, T2 p 16.
Again this appears to be a decision of the AAT1 made without the benefit of medical evidence or a medical report consistent with that finding.
Under heading “Consideration of the condition of neck pain”[17] the AAT1 notes that the ARO did not address this condition. Further:
The treating doctor notes in 2015 that Mr Ong has chronic neck pain, associated with his shoulder and elbow pain, related to his long time working as a welder in car manufacture. There is little medical information about the neck condition, however the presence of chronic neck pain is consistent with the mechanism of injury (repetitive forceful movements over several years) and is reported by the treating doctor.
[17] Exhibit A1, T2 p 17.
The AAT1 found that the neck injury was a separate condition that had fully stabilised because reasonable treatment had been undertaken and any further reasonable treatment was unlikely to result in significant functional improvement in the next two years. Again this decision does not appear to be founded upon any medical evidence or report dealing with the causation of the neck injury as a separate condition. The AAT1 assessed the condition in reference to Table 4. However this Table provides that:
In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.
Table 4 is directed to spinal function, however the evidence before the Tribunal suggests that the neck injury is likely caused by referred pain from the shoulder conditions and not a separate and distinct spinal (cervical) injury. Hence Table 2 arguably should have been used in making any assessment of neck pain in the absence of a cervical condition.
FURTHER MEDICAL REPORTS
Dr Tschirn Report dated 16 June 2017
Dr Tschirn is a Consultant Occupational Physician who conducted, on behalf of the Applicant, an independent DSP assessment of the Respondent on 16 June 2017 for the purpose of the proceedings before the AAT2.[18]
[18] Exhibit A2.
In respect of the Respondent’s upper limb (shoulder) condition, in his report Dr Tschirn noted:[19]
…there was a reluctance to bend or move the left arm away from the body when dressing and yet this was observed at other times, and therefore there was inconsistency of observation on this matter.
[19] Exhibit A2, p 10.
Dr Tschirn raised the question to be asked namely: “whether the reported radiologic findings correlate with the presenting symptoms and clinical findings i.e. is it all due to the bursitis.”[20] Dr Tschirin said with respect to the shoulders that:
It is noteworthy that the examining radiologist (Dr J Heysen) commented in relation to a thickened subacromial bursa that it was questionably symptomatic during dynamic assessment.[21]
[20] Exhibit A2, p 10.
[21] Exhibit A2, p 10 – 11.
Dr Tschirn further opined that an MRI would be an appropriate next step investigation, including with respect to the left shoulder and cervical spine.[22] This, he said, was “essential in guiding the need for surgical referral as against pursuing a conservative approach to management.” For this reason Dr Tschirn did not believe the condition was fully diagnosed at the point of the referral to the orthopaedic specialist in June 2014, nor was it fully diagnosed in the 12 months or so thereafter when little else appeared to have been done by way of investigation, other than the pending referral to a public hospital orthopaedic outpatient clinic.
[22] Exhibit A2, p 9.
In referencing the treatment by a physiotherapist (Mr Phung Tran), Dr Tschirn noted that there was no information about the number of treatments, the type of treatment or physiotherapy treatment plan; only that treatment had been provided.[23]
[23] Exhibit A2, p 9.
In respect of the Respondent’s forearm/elbow complaint, Dr Tschirn said it was unclear whether this condition developed whilst working at Holden’s or sometime later. In particular Dr Tschirn noted that Dr Nguyen’s letter of 22 November 2013 stated that these conditions appeared to be temporary with no mention of history of left shoulder or neck pain. Dr Tschirn did conclude that currently the Respondent had received appropriate multimodal pain relieving treatments and the condition was fully diagnosed, treated and stabilised, however this was not the case during the Qualification Period.
Dr Tschirn noted that the chronic pain bilaterally in the base of the Respondent’s neck appeared to be associated with chronic shoulder dysfunction. He said:
Neck pain and shoulder pain can be difficult to distinguish at times, particularly when chronic.” He continued “it is important to sort out which symptoms are likely to be coming from where, rather than lumping together as neck/shoulder/arm and attributing it to a shoulder bursitis, which may [sic] convenient, though not necessarily accurate.[24]
[24] Exhibit A2, p 12.
Dr Tschirn said that the diagnosis remained unclear with respect to the cervical spine, and that:[25]
In the absence of support from radiologic imaging or other corroborating material, it remains unconfirmed and presumptive only as to whether any neck area symptoms relate to cervical spine degeneration, or a cervical muscle strain. Again, there is doubt in my mind as to the actual chronicity of these problems and given the proximity to the claim period renders it unlikely to be fully diagnosed treated and stabilised.
[25] Exhibit A2, p 12 – 13.
As for the Respondent’s lower limb condition, namely the diagnosis of “knee osteoarthritis bilateral” reported by Dr Kurian for the first time in a Centrelink medical certificate dated 17 October 2015, Dr Kurian understood the Respondent to be suffering from a permanent condition but temporary aggravation. Dr Tschirn understood this to mean the Respondent experienced flare ups of the condition from time to time, and that the condition was not then stable as diagnosed by Dr Kurian. This condition, Dr Tschirn opined, was not fully diagnosed, treated and stabilised.
As for the Respondent's hearing loss, Dr Tschirn agreed with the decision of the AAT1 at paragraph 39[26] that an impairment rating of five points was appropriate for the Respondent’s hearing loss.
[26] Exhibit A1, T2 p 16.
Dr Tschirn’s oral evidence
Dr Tschirn gave evidence which included whether the neck and shoulder conditions were one or separate conditions. He said shoulder bursitis can result in referred neck pain. There was also a question of an overlaying pain disorder or pain syndrome.
Dr Tschirn said that the shoulder and neck conditions had not been fully diagnosed treated and stabilised and based this opinion, in part, on the absence of objective information particularly in relation to the diagnosis of the neck. He said that there was insufficient imaging and in particular there should have been imaging of the left and right shoulder, girdle and neck of the Respondent; which is required to enable an informed diagnosis to be made. Further, Dr Tschirn was aware of the left shoulder complaint and that the Respondent had a left shoulder cortisone injection, but he was not aware of the right shoulder condition until he saw the radiology report. It was then that Dr Tschirn was aware of both left and right shoulder conditions.
Dr Tschirn opined that the ongoing left elbow and forearm pain may be referred pain and again this was not fully diagnosed, treated and stabilised. There was also the possibility of nerve impingement; which could explain the various complaints of pain and dysfunction.
Dr Tschirn was satisfied that the Respondent suffered a hearing impairment. He agreed that hearing aids were likely to be of some benefit albeit the Respondent was not wearing hearing aids at the time of the consultation. In considering whether this condition was fully diagnosed, treated and stabilised during the Qualification Period, Dr Tschirn said the Respondent was functioning and performing quite well and that he may not have necessarily needed hearing aids. He said it is a question of looking at what, if any, functional improvement the Respondent will receive from hearing aids. He found the impairment was not significant and doubted that any benefit will be gained from hearing aids at the time he saw the Respondent. He agreed with the assignment of five points on Table 11.
Dr Tschirn observed the Respondent when undressing and dressing. He described when putting his clothes on that the Respondent was bent, doubled over, with his arm out. He described it as a laboured process. In referencing his report and the observed inconsistencies, Dr Tschirn did not believe the Respondent was malingering, but thought his presentation raised the question of an overlying pain syndrome. This additional potential condition was further evidence of an insufficient diagnostic outcome, and further supported his opinion that the Respondent’s condition had not been fully diagnosed, treated and stabilised. Dr Tschirn thought that the Respondent may benefit from a referral to a pain physician and certainly a referral to a psychiatrist.
Dr Thoo Report dated 5 March 2018
Dr Thoo is an Occupational Physician who provided a report dated 5 March 2018 to the Respondent at the request of the Respondent’s former solicitors. At the time of this report, Dr Thoo had before him a large volume of material including the various medical certificates and reports together with the report of Dr Tschirn.
Under heading “Upper Limb Conditions”[27] Dr Thoo reported that the Respondent developed shoulder pain during his employment at GMH. The history of the Respondent’s condition was consistent with that provided to other medical practitioners to which the Tribunal has referred in this decision.
[27] Exhibit R1, p 3.
Dr Thoo reported that the Respondent had modest improvement to his left shoulder after the cortisone injection and had been referred to the Orthopaedic Department of the Royal Adelaide Hospital for ongoing treatment, but is still awaiting an appointment. It was reported that the Respondent has not had any further treatment to his left shoulder since about December 2016, with no plans to have any other treatment. Dr Thoo noted that the Respondent believes that if anything, his shoulder pain was worsening, but said “when questioned he surprisingly did not report any significant pain in the elbow.”[28]
[28] Exhibit R1, p 3.
Dr Thoo opined that there was evidence of excessive pain behaviour with reports of marked pain with movement and general palpation greater than what would be expected given the minimal pathology noted in the ultrasound.
Dr Thoo opined under heading “Diagnosis”[29] that:
His presentation is more suggestive of a myofascial pain disorder rather than isolated bursitis and impingement. The cause of his right and left shoulder conditions is therefore not fully determined. I agree with the opinion of Dr Tschirn that given the chronicity of his symptoms and his reports of severe pain, restriction of movement and incapacity, that it warrants further investigation.
[29] Exhibit R1, p 4.
Dr Thoo then said that “further ultrasound examination and/or MRI scan would be useful” and then “as such, I do not believe that his upper limb conditions have been fully diagnosed and consequently not fully treated or stabilised in the relevant period.”
In considering the Respondent’s neck pain,[30] Dr Thoo again referenced the lack of imaging and that no invasive treatment had been performed. He diagnosed the Respondent as:
…suffering from non-specific neck pain for which he had not had any imaging. There is no past history of any neck condition and clinical examination has revealed moderate but inconsistent restriction on neck movement with no radicular signs.
[30] Exhibit R1, p 4-5.
He diagnosed that the neck condition as non-specific neck pain most likely myofascial or degenerative in nature, with no evidence of radiculopathy, little in the way of treatment other than physiotherapy and analgesic medication and as such cannot be said that his condition has been fully treated during the relevant period. An impairment rating under Table 4 was therefore not appropriate.
In considering the Respondent’s hearing loss,[31] Dr Thoo noted that hearing aids have been recommended but his conversational hearing appeared to be reasonable in the quiet environment of the consulting room. It appeared that appropriate investigation and treatment had been undertaken such that the hearing loss was fully diagnosed, treated and stabilised in the Qualification Period, and should be appropriately assessed as 5 points under Table 11.
[31] Exhibit R1, p 5.
Dr Thoo was also asked to comment on the Respondent’s knee pain. The Respondent reported he was still able to squat and kneel but does so slowly and carefully. He also reported that he was able to go up and down slight slopes as well as stairs but with care and slowly and in moderation. Examination of the Respondent’s knees was unremarkable with no physical abnormalities, and Dr Thoo opined that the Respondent’s knee condition was undiagnosed and non-specific, and again not fully diagnosed, treated and stabilised during the Qualification Period.
Dr Thoo further opined that the Respondent was not prevented from working at least 15 hours per week within two years of the Qualification Period, and that the only condition which could be considered fully diagnosed treated and stabilised was that of hearing loss. In terms of future employment, Dr Thoo advised the Respondent should avoid working in noisy environments and that if such work conditions couldn’t be avoided, appropriate hearing protection must be worn.[32]
[32] Exhibit R1, p 6.
Dr Thoo was not called to give evidence at the hearing.
RESPONDENT’S EVIDENCE
The Respondent said that he first became aware of problems with his neck and left shoulder when working at General Motors Holden in or about 1983. He ceased employment at the end of 1986. Initially his pain would come and go, but after about three to four months of experiencing pain in his left shoulder and neck he also became aware of pain in his right shoulder. He reported that his left shoulder pain and neck pain were constant but initially his right shoulder pain was intermittent. He described the pain in both shoulders was triggered by movement.
After leaving General Motors Holden, the Respondent took up employment as a fruit packer for several months. He said that he still experienced pain but because he was younger and fitter he was able to manage that pain. However he said that by the time he made his claim for DSP, the pain was unbearable particularly on his shoulders and neck.
The Respondent said that he initially consulted Dr Nguygen who sent him for x-rays and an ultrasound of the left elbow. He also referred the Respondent for a scan on his left elbow, but in his evidence the Respondent could not remember why the left elbow scan was done at that time.
The Respondent was then referred to Dr Kurian. The Respondent said that Dr Kurian had referred him for scans during the Qualification Period, but more particularly the Respondent said he had an MRI scan earlier this year. It is noteworthy that the evidence of that MRI scan was not before the Tribunal. The Respondent failed to explain the reason why he had not provided this material.
The Respondent said that during the Qualification Period he had great difficulty lifting objects, and anything that weighed three to five kilograms was too heavy. He no longer used a computer because of ongoing pain but he was able to continue to use his mobile phone.
The Respondent commenced studying for a Diploma in Management in 2015. He explained that the course was designed as a one-year course but he took longer to complete it because of his shoulder and neck pain. At that time his left shoulder and neck pain was the most severe but his right shoulder pain also continued to cause difficulty, however not to the same extent. He explained that he would attend one day a week in the evenings and during his lectures he would have breaks from time to time after approximately one hour. He was permitted to do his assignments at his own pace because of his health issues and it would take about two hours a week to do the homework or the relevant assignment. Assignments were submitted predominantly by computer.

In May 2016, the Respondent said he completed his studies. After completion he applied for various positions of employment. On occasions he had been sent to complete trial work for potential employers. Some of that work involved packing in a warehouse, but it was too difficult and painful so he was unable to obtain or maintain suitable employment.
The Respondent said that during the Qualification Period he had difficulty dressing himself. He suffered pain including when putting on a shirt. When wearing shoes that had shoelaces he would tie the laces up first and then slide his foot into the shoe. When washing his clothes he was able to load and unload the washing machine but when hanging clothes on the line he needed a chair to enable him to get to a suitable height. He could not lift his arms up above his head because it was too painful. He said he could hold his arms out horizontally but not on an incline.
As for other household duties, the Respondent said that when cooking he would mostly use a rice cooker which he did with ease. He would often eat processed food. He said he did have difficulty opening jars and would hold his left arm close to his body and then undo the jar with his right hand. This process was uncomfortable, and he generally avoided bottles that required twisting of the lid. He said this was the case during the Qualification Period.
The Respondent does not drive. He does not have a car and stopped driving 10 years ago. He said that when turning the steering wheel of a car he felt pain and did not feel that he was safe driving a motor vehicle. He also avoided turning his head to check his blind spot. He said that manoeuvre caused pain in the left shoulder above the shoulder blade all the way to his neck and the tip of the shoulder. His last recollection of driving was in or around March or April 2011.
The Respondent said that during the Qualification Period his hearing was very bad and that he could hardly hear anything. He experienced ringing in his ears and after that had difficulty hearing anything for 15 to 20 minutes. He described difficulty hearing if he was in a room of people, and if they talked in a normal voice he could not hear them. He shares accommodation with others. He said he could not hear somebody if they were talking from behind him.
As for the acquiring of hearing aids, the Respondent said that he attempted to obtain hearing aids in 2010 through a Dr Nottingham, however he was unable to afford them. He said that he has had annual check-ups from that time with different doctors, but was unable to afford the cost of hearing aids which was about $3,500-$4,000 per pair.
However in cross-examination, when questioned about hearing aids, in particular services that will donate or provide reconditioned hearing aids at a reduced cost, the Respondent said that he had acquired hearing aids “last Christmas”. He keeps those hearing aids with him all the time but only uses them if he needs them. He said that he can hear reasonably without the assistance of the hearing aids.
The Respondent said that he fist consulted Dr Ngo in about 1997. He said Dr Ngo was his treating general practitioner for a number of years. The Respondent moved residence from time to time and also changed treating general practitioners, and in 2015 he was consulting Dr Kurian. He next saw Dr Ngo early 2016 and again in mid-2018.
The Respondent was asked about his occupational history,[33] and in particular his employment between 1998 and 2001 as a sales representative selling insurance for Combined Insurance Australia. The Respondent was a full-time contractor. Following a change in the business practice he moved to dealing with the home loans, working for Power Loan from 2006 to 2007. That work involved attending stores and supermarkets and engaging in face-to-face sales of home loans with members of the community. He said he continued to work in that industry until the financial disaster of 2008, but did similar work until approximately 2010.
[33] Exhibit A2, p 5.
The Respondent said that he would now be unable to do many aspects of the sales representative jobs he previously held because his age and poor health affect his ability to focus on that sort of work.
The Respondent said that he now has trouble doing up shoelaces, working on a computer and has difficulty working his fingers; particularly the fingers of his left hand when the weather is colder. The Respondent described difficulty in twisting his neck and shoulder during the Qualification Period. He was able to do up and undo buttons but only with his right hand, not his left hand.
The Respondent indicated that he wanted to call Dr Ngo to give evidence. Dr Kurian, he said, had declined to give evidence. When the Tribunal advised that Dr Kurian could be subpoenaed he said that he did not want that to occur and only wished to call Dr Ngo. The Tribunal asked what assistance Dr Ngo could provide given that at the time of the Qualification Period, and for some time before and after that period, Dr Ngo did not see the Respondent. The Respondent was insistent that Dr Ngo could clarify the nature of the Respondent’s condition together with dental issues and issues of incontinence.
Dr Tuan Ngo’s evidence
Dr Tuan Ngo gave evidence by telephone. He said he first saw the Respondent a long time ago but the second period of treatment commenced on 31 January 2016. Dr Ngo next saw the Respondent on 6 June 2018 and organised x-rays. He also recommended Voltaren gel and prescribed Tramadol and Panadeine Forte to assist the Respondent with his ongoing shoulder pain.
On 4 June 2018, Dr Ngo saw the Respondent with respect to his incontinence issues. He referred the Respondent for an ultrasound of his prostate which was found to be slightly enlarged. His kidneys were normal.
Dr Ngo was unable to assist the Tribunal with respect to the Respondent’s medical condition during the Qualification Period or for such reasonable period before and after.
CLOSING SUBMISSIONS
The Applicant submitted that the question to be determined was whether in the Qualification Period of 10 August 2015 to 11 November 2015, the provisions of ss 94 (1)(a) – (c) had been satisfied. The Applicant conceded that the Respondent had satisfied the provision of s 94(1)(a), but submitted that subsections (b) and (c) had not been satisfied.
The Applicant relied on the report and evidence of Dr Tschirn and the report of Dr Thoo in submitting that the various medical conditions namely upper limb, left elbow, neck, left and right shoulder and hearing conditions had not been fully diagnosed treated and stabilised and that as such the Tribunal is unable to assign an impairment rating to those conditions.
The Applicant submitted that the upper limb, left elbow, neck and left and right shoulder conditions had not been fully diagnosed with the potential for a pain syndrome to be impacting upon those conditions. Further there was significant overlap between those conditions, and that on the available evidence it was not appropriate to assign separate assessments in circumstances where the neck pain might be referred pain from the left shoulder bursitis, and similarly the case with the left elbow condition. The absence of any imaging to assist in diagnosing the Respondent’s various conditions was argued to be telling. Further it was argued that attendance at a pain clinic may also be an alternative treatment, and albeit there had been delay in the Respondent seeing an orthopaedic specialist, there were a number of treatment options available to the Respondent and a number of further imaging or other inquiries that should have been made in relation to his claimed conditions, such that the Respondent did not satisfy the meaning of fully stabilised.
The Applicant referred the Tribunal to the “Rules for applying the Impairment Tables” within the Determination[34] and in particular subsection 6(6) and the meaning of “fully stabilised.” That relevantly reads:
(6)For the purposes of paragraph 6(4)(c) and sub section 11(4) a condition is fully stabilised if:
(a) either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years;
[34] Exhibit A1, T5 p 38 – 44.
With respect to the hearing loss the Applicant submitted this condition was not fully diagnosed, treated and stabilised but acknowledged Dr Tschirn was of the contrary view that five points should be properly attributed to this condition.
The Applicant again referred to the Determination and in particular s 9 headed “Use of aids, equipment and assistive technology” which relevantly reads;
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
The Applicant also referred to the meaning of “reasonable treatment” pursuant to subsection 5(7) of the Determination. It was correctly acknowledged that cost is a relevant consideration but the Respondent had access to hearing aids at a reduced price; a cost of which is arguably reasonable. Further those hearing aids might be expected to provide substantial improvement in the Respondent’s hearing. The Applicant submitted that because of the Respondent’s failure to fully inquire into the availability of hearing aids during the Qualification Period he had not acted to pursue reasonable treatment and no impairment rating should be given to the loss of hearing.
The Applicant referred to the decision of the ARO; that the Respondent did not have a continuing inability to work as defined in s 94(2) of the Act and that he did not meet the program of support requirements. In referencing the Job Capacity Assessment Report submitted on 19 September 2015, the Applicant said the Respondent had a capacity to undertake light, less skilled work of at least 15 hours per week in the next two years, and that his medical condition would also not prevent him from undertaking a training activity to prepare him for alternate work within two years.
The Applicant urged the Tribunal to set aside the decision of the AAT1 and substitute a decision that the Respondent was not qualified for DSP.
The Respondent submitted that he started having significant difficulty in 2013 to 2014 and that one condition led to another. He said that he had taken a lot of medication over a long period of time, including the injections for his shoulder injury. He said that his body was progressively getting worse, that he had an operation on his bowel in 2016. He feels weaker month by month and year by year.
CONSIDERATION
The Applicant appropriately conceded that the Respondent had impairments arising from an upper limb, neck and hearing condition and as such satisfied s 94(1)(a) of the Act. The Tribunal must now consider whether the Respondent satisfies ss 94(1)(b) and (c) of the Act.
The Tribunal accepts that the Respondent suffers from a number of medical conditions which have been ongoing and have worsened with the passage of time. The Tribunal finds that the Respondent was honest in describing the difficulties that he now endures. However the Tribunal notes the principle in Re Bobera,[35] as endorsed by the Tribunal in ReYazdari and Secretary, Department of Social Services [2014] AATA 34, which stated at [35]:
Moreover, no progression or exacerbation of a physical condition (or conditions) suffered by the applicant after the Claim Period could be used to award him DSP.
[35] Re Bobera and Secretary, Department of Families, Community Services and Indigenous Affairs [2012] AATA 922.
The AAT1 made certain findings based upon the evidence of the Respondent and limited and inconsistent medical evidence that was before the Tribunal. An example of such evidence of concern appears in the various medical certificates of Dr Kurian wherein the left shoulder bursitis is referred to from 2014, and right shoulder bursitis from 2015, when no imaging of the right shoulder has occurred. Further those certificates from 2015 are silent with respect to the left shoulder which is surprising.
Upper limb and neck conditions
According to s 8 of the Determination, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence. I find the medical evidence before the AAT1 was not sufficient to satisfy it that the upper limb and neck conditions were permanent and referred or separate conditions, and the AAT1 placed too much weight on the Respondent’s self-reports of his symptoms.
The AAT1 did not however, have the benefit of the lengthy reports of Dr Tschirn and Dr Thoo, and the evidence of Dr Tschirn who opined that further medical enquiries such as imaging in the form of CT scanning or MRI scanning were necessary to enable an accurate diagnosis of the Respondent’s various medical conditions. This included whether the Respondent was experiencing referred pain rather than a separate condition. Dr Tschirn opined that there was the possibility of a psychological overlay which needed to be considered. Dr Tschirn further opined that given the absence of other corroborating medical evidence, Dr Kurian was solely reliant on the Respondent’s self-reports.[36] The Tribunal accepts this is what occurred.
[36] Exhibit A2, p 8.
The Tribunal also received a report of Benson radiology dated 8 June 2018 which was obtained at the request of Dr Ngo. That report referenced “x-ray and ultrasound bilateral shoulders with steroid injections” and in summary referred to a bony spur narrowing the right subacromial space. Further the report reads:
…on the right side there is a hook like spur encroaching into the subacromial space. No left sided spur. Both glenohumeral joints have a smooth contour. There is no significant degenerative narrowing of either AC joint. No cuff calcification.
There was found to be bursal thickening bilaterally and the Respondent received a cortisone injection into both subacromial bursae. This report suggests a changing condition, and that the bony pathology referred to in the Qualification Period no longer appears to be present. This is further evidence that the Respondent’s various neck and shoulder injuries were of changing pathology and were not fully diagnosed, treated and stabilised during the Qualification Period.
Although the Tribunal notes the Respondent was on the waiting list to see an orthopaedic specialist and that is not a matter within the Respondent’s control, the unfortunate consequence is a condition lacking in corroboration. Nevertheless, there is evidence of other less onerous options that were available to the Respondent at the relevant time that should have been explored.
The Tribunal accepts the Applicant’s submission that there were a number of reasonable treatment options available to the Respondent, and a number of further imaging or other enquiries that should have been made in relation to his claimed conditions, such that the Respondent’s upper limb and neck condition was not fully diagnosed, treated and stabilised. The Tribunal notes that the Job Capacity Assessment Report refers to specialist treatment and indicates that such a referral is likely to result in functional improvement; therefore the condition was not treated and stabilised.
Dr Thoo refrained from providing a prognosis given the presence of pain behaviour or an abnormal illness,[37] and agreed with Dr Tschirn that the chronicity of his symptoms warrant further investigations before any treatment and prognosis can be determined. The Tribunal finds that given the severity of the Respondent’s symptoms as described, it is surprising that further avenues were not explored at the relevant time.
[37] Exhibit R1, p 4.
Based on the material before the Tribunal, the Tribunal finds that the arm, neck and shoulder conditions were not fully diagnosed treated and stabilised during the Qualification Period. As such the Tribunal is unable to assign the Respondent an impairment rating for these conditions under the Impairment Tables.
Hearing Loss
As for the hearing loss, the Tribunal accepts that the Respondent could not afford the cost of hearing aids at the relevant time of the Qualification Period, and it is not suggested that he then knew or should have known that there might be other hearing aid providers who could assist with discount or second-hand hearing aids. Further there is no evidence of such a provider at the relevant time before the Tribunal. The Tribunal notes that at the time of the hearing, the Respondent had obtained hearing aids which he used if and when required.
The Tribunal has considered the evidence of Dr Tschirn[38] and Dr Thoo[39] confirming the Respondent has some sensorineural loss of hearing. The Tribunal accepts the Respondent’s condition for hearing loss was fully diagnosed, treated and stabilised within the Qualification Period and likely to persist for more than two years.
[38] Exhibit A2, p 13.
[39] Exhibit R1, p 5.
With respect to assigning an impairment rating, the descriptors of a mild functional impairment for hearing loss under Table 11 of the Determination are as follows:
5There is mild functional impact on activities involving hearing (communication) function or other functions of the ear.
(1)     The person:
(a)     has some difficulty hearing a conversation at an average volume in a room with background noise (e.g. other people talking quietly in the background); and
(b)     may use a hearing aid, cochlear implant or other device; and
(c)     has difficulty hearing conversations when using a standard telephone, particularly in a room with background noise; or
(2) The person has occasional difficulty with balance (e.g. occasional dizziness) or ringing in the ears which occasionally interferes with communication ability or routine activities due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease, or tinnitus).
The Respondent’s evidence that within the Qualification Period he had difficulty hearing a conversation at an average volume in a room with background noise, that he had some difficulty understanding conversations on the telephone, and that it may be appropriate to use hearing aids; was corroborated by medical evidence. The Tribunal notes however the evidence of Dr Tschirn that hearing aids are unlikely to be of much assistance to the Respondent. The Tribunal finds that an assessment of five points in accordance with Table 11, mild functional impact on activities involving hearing, is appropriate.
CONCLUSION
The Tribunal finds the Respondent had a fully diagnosed, treated and stabilised condition within the Qualification Period, namely hearing loss, and accordingly assigns 5 points under the Impairment tables.
As for the balance of the Respondent’s conditions, they were not fully diagnosed, treated and stabilised within the Qualification Period and therefore cannot be assigned impairment ratings.
The Respondent has therefore failed to reach the requisite 20 points to satisfy the qualification criteria in s 94(1)(b) of the Act. Given this conclusion, it was not necessary for the Tribunal to consider whether the Respondent had a continuing inability to work pursuant to s 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision under review; and in substitution, decides that the Respondent was not eligible to receive the disability support pension as he has not satisfied the provision of s 94(1)(b) of the Social Security Act 1991.

I certify that the preceding 128 (one hundred and twenty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

...............................[Sgd].....................................
Associate
Dated: 26 November 2018

Date of hearing: 20 September 2018

Applicant: In person

Advocate for the Respondent: Lee-Anne Odgers

Solicitors for the Respondent: Department of Human Services

[2018] AATA 4410

26 November 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing:	20 September 2018
Applicant:	In person
Advocate for the Respondent:	Lee-Anne Odgers
Solicitors for the Respondent:	Department of Human Services