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

Piper and Secretary, Department of Social Services (Social services second review) [2017] AATA 1215 (2 August 2017)
Division:General Division
File Number: 2016/4827
Re:Justin Piper
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:2 August 2017
Place:Sydney

The Tribunal affirms the decision under review.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments are physical, intellectual or psychiatric – whether impairments amount to 20 points or more – continuing inability to work – Table 4 Spinal Function – Table 5 Mental Health Function – Table 10 Digestive and Reproductive Function – Table 11 Hearing and other Functions – decision affirmed.
LEGISLATION
Social Security Act 1991 (Cth), s 94, Sch 1B
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
2 August 2017
THE DECISION UNDER REVIEW

The reviewable decision was made by the Social Services and Child Support Division of this Tribunal (AAT1) on 20 August 2016. It affirmed a decision made by an Authorised Review Officer (ARO) on 8 April 2016 which, in turn, affirmed the decision made on 25 January 2016 to cancel the DSP.
Issues
The issue in this case is whether Mr Piper was qualified to receive DSP at the date of cancellation, 25 January 2016.
That is, did Mr Piper satisfy the qualification criteria for DSP set out in section 94(1) of the Social Security Act 1991 (Cth) (the Act) on 25 January 2016.
Section 94(1) provides that a person qualifies for DSP if he or she has:
(i)a physical, intellectual or psychiatric impairment; or
(ii)impairments, which rate 20 or more points according to the Impairment Tables in the Act; and
(iii)a continuing inability to work as defined in the Act.
Assessing impairment and assigning a rating
Mr Piper was granted DSP from 20 November 2006 on the basis of impairment arising from depression which was rated at 20 points according to the Impairment Tables that were then in force, that were in Schedule 1B to the Act.
As of 1 January 2012, the relevant Impairment Tables have been the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Impairment Determination).
The Impairment Determination includes rules for assessing the degree of impairment caused by a condition and for assigning impairment ratings. According to its severity, a condition may be rated between nil and 30 points. References to paragraphs are references to paragraphs in the Determination.
Impairment means “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition”: Para 3.
An impairment rating can only be given to a condition that is permanent: Para 6(3). Permanent in this context means a condition is fully diagnosed, fully treated and fully stabilised and more likely than not will persist for more than two years: Para 6(4).
When deciding whether a condition is fully diagnosed and fully treated, it is necessary to consider:
·whether it has been fully diagnosed by an appropriately qualified medical practitioner;
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred;
·whether treatment is still continuing or is planned in the near future; and
·whether any further reasonable medical treatment is likely to lead to significant functional improvement within the next two years: Paras 6(5) and (6).
Fully stabilised means that it is unlikely that there will be any significant functional improvement in a condition, with or without reasonable treatment, within the next two years: Para 6(6).
Background
Mr Piper’s wife and two young children live in Malaysia. The older child is now two years old and the younger child is about one year old. Mr Piper and his wife met in 2013 and married in Malaysia in the middle of 2015. She has visited Australia twice, including once for three months. Mr Piper plans to bring his family to Australia.
Mr Piper has travelled overseas for periods of six weeks once in 2013 and twice in 2014. In 2015, he travelled overseas for periods of more than 28 days on four occasions. In 2016, he travelled overseas twice for less than four weeks.
The competing contentions of the parties
The Secretary accepts that Mr Piper had a number of conditions at the date of cancellation but contends that his consequential impairment attracted an overall impairment rating of 0 points and therefore Mr Piper does not satisfy the 20 points or more criterion for DSP.
Mr Piper contends that he has nine conditions that should be assigned 100 points under the Impairment Tables. He set out in a document in respect of each Impairment Table which he claimed was relevant, the diagnosis, the symptoms, the supporting medical evidence and the rating he claimed applied (Mr Piper’s assessment).
Consideration of the evidence and findings
The Tribunal considers each impairment separately. It emphasises that Impairment means “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and that it is assessing Mr Piper’s conditions as they were on 25 January 2016.
Neck disorder
Mr Piper’s neck condition is clearly a consequence of a 2009 assault while he was sleeping, by his mother’s partner in her home.
The Secretary has characterised the neck condition as “neck disorder (throat pain)” and assessed it under Table 10 which is entitled “Digestive and Reproduction Function”.
The Secretary accepts that the neck disorder (throat pain) was fully diagnosed, treated and stabilised at the cancellation date but contends that at highest, the condition should be assigned 5 impairment points under Table 10.
Mr Piper claims that the appropriate rating is 20 points. He listed the symptoms as severe throat pain, and breathing and swallowing difficulties. He told the Tribunal the following. It is like breathing through a straw and the pain is that same as at the time of injury. He relives the assault with every breath he takes. He found a doctor in Malaysia in 2013 who has knowledge of the condition that doctors in Australia do not. He claimed that there were only 241 cases, the most recent of which was a result of a martial arts injury. He has also found a physiotherapist who assists him. That is one of the reasons he has travelled overseas since 2013. There was no evidence before the Tribunal from that doctor or physiotherapist.
Following is a consideration of the other evidence before the Tribunal about that condition.
In her letter dated 29 September 2012, Mr Piper’s aunt stated that he regularly commented on his “throat discomfort and pain (which requires pain relief) and shortness of breath which once again, prevents him from participating in the sports he loves”.
Dr Chang is a surgeon who lists his expertise as: “Paediatric & Adult Ear, Nose and Throat Surgery; Implantable Hearing Aid Surgery; Neurology”. In his report of 3 October 2012, he addressed the 2009 attack on Mr Piper. He had seen Mr Piper in August 2010 following that attack. Dr Chang wrote that Mr Piper complained of pain and discomfort following the incident and that investigations, including CT scanning, had been performed by Dr Allwright and were reported to be normal with no evidence of cartilaginous fracture. Dr Chang had found tenderness at the site of trauma on palpation. He noted that Mr Piper had complained of vocal cord hoarseness since the attack and difficulty with swallowing associated with pain. Dr Chang advised Mr Piper that there was little that could be done in the way of treatment, whether it be conservative management or surgical intervention. Dr Chang wrote that he had no doubt that the attack, as described by Mr Piper, had “caused him ongoing pain, discomfort and stress to the point where he is now unable to work and socialise and he is now suffering from low self esteem”.
Dr Scoppa, ear, nose, and throat physician and medico-legal consultant wrote a report dated 23 February 2013. Dr Scoppa’s report was prepared for the purpose of applying for compensation under the Victims Support and Rehabilitation Act 1996 (NSW). His assessment of the injury according to the criteria under that legislation is not directly relevant to the assessment required under the Impairment Tables.
Dr Scoppa’s opinion was as follows. As a result of the 2009 assault, Mr Piper had sustained a soft tissue injury to the larynx that had resulted in secondary muscle tension dysphonia, mild laryngo-pharyngeal reflux, and general laryngeal globus symptoms. There was no evidence that the injuries sustained in the assault had caused permanent irreversible physical laryngeal injury. Mr Piper’s current symptoms had been present for several years “and given Mr Piper’s resultant stress and anxiety caused by this incident it is unlikely … that these throat symptoms will improve significantly with or without any further medical intervention, and I would consider them as permanent and stable, and having reached maximal medical improvement”.
Dr Scoppa referred to material that had been provided to him for his consideration. Relevantly, and without repeating information already set out, it included the following:
·Clinical notes from Coffs Harbour Hospital 10 days after the assault that recorded the following. A history of ongoing pain and swallowing and a feeling of neck pain and stiffness. The diagnosis was sprained neck without evidence of vascular injury. Mr Piper’s medications were analgesia and dynamic stretch exercises.
·A report from Dr Ruthnam, general practitioner, dated 9 May 2011. The doctor reported that he assessed Mr Piper about six months after the assault of 8 May 2009. He found a normal voice and possible tenderness of the left lower neck and opined that Mr Piper may have sustained an injury to the omohyoid muscle. A CT scan was apparently normal. Mr Piper was emotionally distraught and was referred to Dr Allwright and Dr Chang.
·A CT report of the neck dated 14 December 2009 which noted a history of persistent pain with dysphagia (difficulty swallowing), “overall appearances were normal with symmetry of the airways”.
·A report of Ms Marshall dated 29 August 2010 which stated that Mr Piper was emotionally distraught and had pain and discomfort when swallowing and lying on his back.
·A report of Dr Leo Pang, whom Mr Piper said was an ear, nose and throat specialist, which recorded a consultation on 26 March 2012. Symptoms included sore throat, intermittent dysphagia, shortness of breath, some paresthesia in the upper neck and general globus symptoms. Examination revealed no abnormality of the larynx. A CT scan shows no evidence of fracture, but there was mild asymmetry of the laryngeal framework, deemed to be a normal variant or secondary to the trauma of the assault. Dr Pang opined that Mr Piper’s symptoms could be explained on the basis of scarring caused by blunt trauma sustained in the assault and resulting neuropathic pain.
Dr Cooper, general practitioner, completed a report dated 10 March 2015. He reported that Mr Piper had been a patient at the practice since 13 August 2013 and his patient since 2 September 2013. He wrote that Mr Piper did not have one or more medical conditions that have a significant impact on their ability to function.
In relation to the neck condition, Dr Cooper provided the diagnosis “strained seriously disabling permanent”. The doctor’s writing is difficult to read. Doing the best it can, the Tribunal understands that past treatment was “ongoing intermittent physio” and analgesia. Dr Cooper listed Mr Piper’s current symptoms as severe daily pain and discomfort in the throat.
Mr Piper criticised Dr Cooper’s opinions.
The JCA report dated 8 January 2016 was a face to face assessment by a registered psychologist. Mr Piper was very critical of the assessor and the assessment.
The assessor had been provided with Dr Cooper’s medical report. The assessor noted that Mr Piper reported pain on swallowing and reduced breathing capacity. The assessor found that this condition rated 0 points under Table 10.
In his report sent to Centrelink dated 30 May 2016, Dr Ruthnam, general practitioner, stated relevantly, that he had known Mr Piper “for many years” and that he “has a long standing neck pain that affects swallowing and breathing for which he has seen many specialists after an assault directly on his throat”.
Ms Marshall, registered psychologist, wrote in her email dated 20 August 2016, that when she had counselled Mr Piper in 2010 and 2011, “he lived with constant pain in the throat area” as a result of the 2009 assault.
Following are the criteria for assigning 5 and 10 points under Table 10:

5

There is a mild functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)        At least one of the following applies:

(a)        the person’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or

(b)        the person is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

10

There is a moderate functional impact on work-related or daily activities due to symptoms or personal care needs associated with a digestive or reproductive system condition.

(1)        At least two of the following apply to the person:

(a)        the person’s attention and concentration on a task are often (at least once a day but not every hour) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition;

(b)        the person is unable to sustain work activity or other tasks for more than 2 hours without a break due to symptoms of the digestive or reproductive system condition;

(c)        the person is often (once per month) absent from work, education or training activities due to the digestive or reproductive system condition.

At most, the Tribunal finds that 5 points should be assigned to the neck condition. The evidence does not support a finding that Mr Piper’s neck condition causes the functional impact for which 10 points may be assigned. Taking into account all the evidence, the Tribunal does not accept that Mr Piper’s neck condition satisfies the criteria for a rating of 10 points. Accordingly, it finds that the appropriate rating under Table 10 is 5 points.
Depression/anxiety
Impairment Table 5 is entitled “Mental Health Function”.
The Secretary claims that Mr Piper’s depression/anxiety is not fully treated and stabilised because there has been no diagnosis by an appropriately qualified practitioner such as a Clinical Psychologist or Psychiatrist and therefore cannot be rated according to the Impairment Tables. That was the opinion of the JCA assessor who saw Mr Piper on 8 January 2016.
Mr Piper claims that there have been the following diagnoses: severe long term depression, post-traumatic stress disorder and low self-esteem. He claims that a rating of 20 points is appropriate. He told the Tribunal that Dr Ruthnam had trialled him on three or four anti-depressants in the last 12 months but they do not show up on the PBS list that was in evidence before the Tribunal because the doctor gives him sample boxes. He said that he was stable on mirtazapine, diazepam and panadeine forte.
Dr Ruthnam completed the “Treating doctor’s report” for the 2006 DSP application. He provided a diagnosis of “Depression Major” with the date of onset and diagnosis being 1999. He reported past treatment by a psychiatrist in 1999 and more psychological support as “future/planned treatment”. Dr Ruthnam provided the following information on the impact of the condition on Mr Piper’s ability to function:
·Poor self-esteem
·Unable to concentrate, be motivated (tired)
·And poor hearing, communication difficulties.
Mr Piper’s aunt wrote in her letter dated 29 September 2012, that Mr Piper suffered from insomnia, depression and anxiety which required regular medication as a result of the 2009 assault.
In his medical report dated 10 March 2015, Dr Cooper listed a diagnosis of anxiety depression with a date of onset of 27 November 2006. He wrote that the diagnosis was supported by Ms Marshall, psychologist. He listed the current treatment as Diazepam 5 mg and Panadeine forte and Diazepam as the ongoing treatment. He reported low mood and motivation, flashbacks and anxiety as the current symptoms. Dr Cooper’s opinion was that the effect of the condition on Mr Piper’s ability to function would remain unchanged in the next two years. He described the condition as “ongoing psychological trauma secondary to assault May 2009”.
In his report sent to Centrelink dated 30 May 2016, Dr Ruthnam, general practitioner, stated relevantly, that he had known Mr Piper for many years and had treated him for “his chronic anxiety and depression”. He concluded that he “is stable now but at risk of reverting to his anxiety-depression with the issues now raised through your organisation”. Dr Ruthnam did not mention any medications Mr Piper was taking.
Ms Marshall, registered psychologist, wrote to the Social Services and Child Support Division of this Tribunal on 20 August 2016, as follows. Dr Ruthnam had referred Mr Piper to her under a mental health plan on 3 May 2010 for mixed anxiety and depression and a subsequent adjustment disorder resulting from the 2009 assault. She saw Mr Piper for ten counselling sessions during 2010 and 2011. Mr Piper “was highly traumatised” when she first met him. Mr Piper was receiving treatment for his ear, had had ear surgery with consequential disfigurement, and lived with constant pain in the throat area. She stated that “naturally, he had a low mood and confidence and his future was difficult to see in a positive light”. He responded well to Cognitive Behavioural Therapy. Mr Piper had been re-referred to her by his general practitioner on 14 July 2016. He “plans to return to counselling for his depression and anxiety issues, once his second child is born in the near future”.
Mr Piper told the Tribunal that he stopped seeing Ms Marshall in 2011 because he moved to Sydney. He also said that he felt that they were going around in circles, making him relive the traumatic incident.
The Tribunal does not accept that a diagnosis made in 1999 by a psychiatrist or by a psychologist, clinical or other, in 2010-11 is a diagnosis of Mr Piper’s condition in January 2015. He has not had psychiatric or psychological treatment since 2011. His circumstances have changed significantly for the better, having married in 2015 and fathered two young children. He is planning to bring his family to Australia to live with him. He has travelled overseas several times since 2013.
Clearly, his condition in 1999 required his seeing a psychiatrist. He has not seen one since. In 2006 he had undergone serious and life-changing ear surgery which affected his mental health according to Dr Chang. In 2010-11, he was dealing with the traumatising effects of a physical assault and was seeing a psychologist for counselling.
Further, there is limited medical evidence corroborating Mr Piper’s claimed level of functional impact as a consequence of this condition at the date of cancellation.

The Tribunal accepts that Table 5 requires a condition to be appropriately diagnosed by “an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist)”. The Tribunal accepts that Ms Marshall is not a clinical psychologist.
In any event, it is not apparent from Ms Marshall’s 2016 report that she had seen Mr Piper after the referral had been made, which was months after the cancellation date. She provides no current diagnosis. She wrote that Mr Piper responded well to counselling in 2010 and 2011.
Mr Piper explained to the Tribunal that he could not afford to attend the psychologist.
Although Mr Piper claimed he stopped going to Ms Marshall because the counselling was going around in circles, the Tribunal accepts her assessment that he responded well to counselling, and finds that his condition, whatever its diagnosis on 25 January 2015, may respond to counselling again.
The Tribunal accepts that Mr Piper has been taking Diazepam over many years, a drug used for its calming effect, but that is not evidence of a diagnosis or prognosis. It accepts that he was taking Mirtazapine as of 28 March 2017 because it is mentioned in Dr Ruthnam’s report of that date as being prescribed on the same date. The Tribunal accepts that having his DSP cancelled and the consequential processes of review have caused him distress.
The Tribunal does not accept that Mr Piper’s mental health condition as of 25 January 2016 has been diagnosed. It does not accept that it has been fully treated and stabilised. That Doctor Ruthnam has been trialling medications for the condition over the last 12 months and referred him to a psychologist for counselling in 2016, reinforces the Tribunal in making that finding. An impairment rating therefore cannot be assigned for the condition.
Partial hearing
Table 11 is entitled “Hearing and other Functions of the Ear”. The Secretary accepts that Mr Piper suffered from partial hearing loss at the date of cancellation. The Tribunal accepts that he suffered total hearing loss in his left ear at the date of cancellation.
Mr Piper claims that his ear condition satisfied the 10 points criteria in Table 11. Mr Piper relied on the evidence of Dr Chang, Dr Scoppa, Dr Bravo and Dr Ruthnam. He told the Tribunal during the hearing that he was paying very close attention and that is why he can communicate.
Mr Piper’s aunt provides the following useful information in her letter “To Whom it May Concern”, dated 29 September 2012. The problems Mr Piper has suffered with his left ear “have caused him to be more cautious than other young people in social settings, in a conscious effort to avoid situations that could potentially expose him to random violence that could possibly cause further damage to his ear”. Mr Piper “had been pain free and enjoying full health for the first time in many years after his surgery in 2006” until the assault in 2009 and “for the first time in many years he was able to fully participate and enjoy his favourite sports of cricket and surfing”.
In his report dated 10 March 2015, Dr Cooper wrote that Mr Piper has had chronic left ear deafness and otalgia.
On 19 January 2015, Dr Cooper responded to an inquiry from a Job Capacity Assessor. He indicated that he agreed to the following “Chronic left hear (sic) total hearing loss (he stated his right ear compensates) – this condition was fully treated and had minimal impact on his function”.
The January 2016 JCA reported that Mr Piper reported that his right ear “is very good and makes up for his left ear hearing loss” and “he reported no functional impact from this condition”. The Tribunal notes that in 2017, Dr Ruthnam referred Mr Piper to Dr Chang and reported that Mr Piper had had a discharge from his left ear at Christmas in 2016 and needed hospitalisation. The JCA assessor rated this condition as 0 points.
In his report sent to Centrelink dated 30 May 2016, Dr Ruthnam stated that he had known Mr Piper “for many years for his left ear pain, deafness and vertigo related problems”. The doctor did not specify any functional impact of those conditions.
Dr Ruthnam re-referred Mr Piper to Dr Chang in a letter dated 21 February 2017 in respect of discharge from his left ear. In his referral, Dr Ruthnam stated the following. Mr Piper has “been relatively symptom free last 8 yrs but about Xmas 2016 presented to ED with discharging left ear… He states he had niggling discomfort in the left ear for about 6 months prior to that presentation.” The Tribunal finds that evidence shows that Mr Piper had not been suffering pain in his left ear prior to that time.
In his report of 6 April 2017, Dr Chang stated the following. He has been Mr Piper’s ear surgeon since 2006 when Mr Piper was referred to him after being identified with “a cholesteatoma of the left ear that had an intimate relationship with the brain and active CSF leak”. Dr Chang carried out end-stage tympanomastoid surgery which eradicated the cholesteatoma and cured the CSF leak. Mr Piper was left with maximal conductive hearing loss of the left ear. Dr Chang reported that Mr Piper had failed to come to terms with the consequential hearing loss in his left ear and has significant anxiety related to “what was a life threatening ear condition”. In his October 2012 report, Dr Chang observed that Mr Piper had made a “good and uneventful recovery” from the 2006 surgery.
The Tribunal accepts that Mr Piper has maximal left ear hearing loss and has not come to terms with his hearing loss. However, Table 5 is concerned with loss of function.
Mr Piper claimed that he suffered severe ear and head pain and dizziness/vertigo, i.e. loss of balance. Dr Ruthnam’s February 2017 report does not support those claims. Dr Ruthnam said that Mr Piper had been “relatively symptom free last 8 yrs”. The Tribunal has taken into account the doctor’s 30 May 2016 report but it is in general terms and does not specify when Mr Piper suffered the symptoms mentioned.
Table 11 requires the following criteria to be satisfied for a rating of 5 points to be assigned:

5

There 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 evidence does not satisfy criterion (2) because the applicant has no medically diagnosed disorder of the inner ear. There is also no corroborative evidence of his claim to suffer dizziness. He does not satisfy criterion (1) because the evidence does not satisfy (1)(b) or (c). Accordingly, the criteria for 5 points impairment are not satisfied. Therefore a rating of 0 points is appropriate.
Other Tables Mr Piper claims to satisfy
Mr Piper claims that he has impairments that should be assessed under other Tables.
He claims that he has “Relating diagnosis” of shortness of breath, fatigue and chest pain which should be assigned an impairment rating of 10 to 20 points under Table 1, which is entitled “Functions requiring Physical Exertion and Stamina”. The Tribunal does not accept that those matters listed are “diagnoses”. They may be symptoms of a condition or conditions. However, the Tribunal does not accept that there is any medical evidence diagnosing a condition which includes those symptoms or that Mr Piper has reported those symptoms to medical practitioners. The evidence does not establish that Mr Piper “has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina” as required by the introduction to Table 1. In making that finding, the Tribunal has taken into account Mr Piper’s claims of breathing difficulties caused by the injury to his neck.
Mr Piper claims that his “neck strained, serious disable (permanent) and severe neck pain and discomfort on movement”, should be assessed under Table 4 which is entitled “Spinal Function”. He claims the appropriate rating is 5 points. The Tribunal finds that this is a repeat of the claim in relation to his neck pain which is more appropriately assessed under Table 10. The introduction to Table 4 says:
Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
The evidence does not support a finding that Mr Piper has a condition that is appropriately assessed under Table 4.
Mr Piper claims that he should be assessed under Table 6 which is entitled “Alcohol, Drug and Substance Abuse”. He listed as diagnoses: Regular drug and medication abuse, regular difficulties associated with family problems relating to use. He claimed an impairment of 10 points should be assigned.
The Tribunal finds that the evidence does not establish that Mr Piper “has a permanent condition resulting in functional impairment due to excessive use of alcohol, drugs or other harmful substances … or the misuse of prescription drugs” which should be assessed under Table 6. He denied using alcohol or drugs in recent years.
Mr Piper claims that a rating of 5 points should be assigned under Table 7, Brain Function. He listed the “relating diagnosis”:
·Neurological scarring
·Memory issues
·Alertness and concentration issues
·Trust in humanity issues
·PTSD
The introduction to Table 7 says that it is:
to be used where the person has a permanent condition resulting in functional impairment related to neurological or cognitive function.
The Tribunal does not accept that the medical evidence supports a diagnosis of a condition suffered by Mr Piper that is appropriately assessed under Table 7.
Mr Piper claims that a rating of 10 points should be assigned under Table 8, Communication Function. He lists “relating diagnosis”:
·Difficulty hearing
·Total left ear hearing loss
·Major larynx and throat damage
·Weak and husky voice problems
The list repeats conditions that the Tribunal finds have been appropriately assessed under Tables 10 and 11. Further, the medical evidence does not support Mr Piper’s claim to have “weak and husky voice problems” or that such a problem is a “permanent condition resulting in functional impairment affecting communication functions” as required by the introduction to Table 8.
Finally, Mr Piper claims that 5 points should be assessed under Table 12, Visual Function. He listed under the heading “Relating Diagnosis”:
·vision difficulty
·eye pain and discomfort
·right eye moved from axis due to assault
·peripheral vision issues
·major problems with bright lights and sunlight
The evidence does not establish that Mr Piper “has a permanent condition resulting in functional impairment when performing activities involving visual function” which would be appropriately assessed under Table 12.
The Tribunal does not accept Mr Piper’s claims in relation to assessment under those Tables.
General comments on evidence
In making the above findings, the Tribunal has taken into account all the evidence before it. The evidence from 2006 does not require detailed consideration beyond that set out above because it is historical. The Tribunal has to consider Mr Piper’s conditions on 25 January 2015. The report of Dr Ruthnam dated 28 March 2017 lists Mr Piper’s past history and current medications. The report does not identify the conditions from which he suffered at the date of cancellation, 25 January 2015, or address the criteria the Tribunal is required to address in order to determine whether Mr Piper qualifies for DSP. Dr Ruthnam does not identify the conditions for which the medications are prescribed. His report does not assist the Tribunal.
The decision of the ARO dated 8 April 2016 includes no evidence in addition to that otherwise before the Tribunal. The ARO tried unsuccessfully to telephone Mr Piper before making the decision. Mr Piper criticised that decision.
CONCLUSION
The Tribunal concludes that Mr Piper’s impairments did not attract an impairment rating of at least 20 points under the Impairment Tables at the date of cancellation. Therefore, he did not satisfy the criterion for DSP. The Tribunal affirms the decision under review.

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

.................................[sgd].......................................
Associate
Dated: 2 August 2017

Date(s) of hearing: 4 May 2017

Applicant: In person

Solicitors for the Respondent: Mr A Lones, Department of Human Services

[2017] AATA 1215

2 August 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Procedural Fairness

Judicial Review

Standing

Statutory Construction

Date(s) of hearing:	4 May 2017
Applicant:	In person
Solicitors for the Respondent:	Mr A Lones, Department of Human Services