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

Pocock and Secretary, Department of Social Services (Social services second review) [2019] AATA 81 (1 February 2019)

Division:GENERAL DIVISION
File Number: 2017/3780
Re:Gregory Pocock
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell

Date:1 February 2019
Place:Brisbane

The Tribunal affirms the decision under review.
..............[Sgd]................................
Member D Mitchell
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
1 February 2019
INTRODUCTION

On 5 September 2016, Mr Gregory Pocock (the Applicant) lodged a claim for the disability support pension (DSP).[1]
[1] Exhibit 1, T Documents, T16, pages 92-123, Mr Pocock’s Claim for DSP dated 5 September 2016 and T Documents, T24, page 153, Centrelink customer contact file notes.
The claim was rejected on 19 October 2016[2] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 28 November 2016.[3]
[2] Exhibit 1, T Documents, T19, pages 132-133, Letter to Mr Pocock from Centrelink dated 19 October 2016.
[3] Exhibit 1, T Documents, T21, pages 135-141, Letter to Mr Pocock from Centrelink dated 28 November 2016.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD) who affirmed the decision of the ARO on 1 June 2017.[4]
[4] Exhibit 1, T Documents,T3, pages 7-12, SSCSD’s Decision and Reasons dated 1 June 2017.
Following this the Applicant sought a second-tier review of his matter by the General Division of this Tribunal, by way of an application dated 23 June 2017.[5]
[5] Exhibit 1, T Documents, T 2, pages 3-6, Application for review to second-tier of Tribunal dated 23 June 2017.
On 16 January 2019, a hearing was held for this application. The Applicant was self-represented and gave evidence by affirmation at the hearing by telephone.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
BACKGROUND
On the Applicant’s claim for DSP form he lists the following disabilities, illnesses or injuries:[6]
·     Severe epilepsy
·     Previous stroke
·     Severe depression
·     Degenerative back pain
[6] Exhibit 1, T Documents, T16, page 92-123, Mr Pocock’s Claim for DSP dated 1 September 2016.
On 10 October 2016, the Applicant attended a face to face appointment with a Job Capacity Assessor (JCA) in Toowoomba. In a report dated 12 October 2016 the JCA made the following assessments:[7]
(a) The Applicant's epilepsy was not fully treated or fully stabilised.
(b) The Applicant's depression was not fully diagnosed, fully treated or fully stabilised.
(c) The Applicant's diabetes was not fully treated or fully stabilised.
(d) The Applicant's spinal canal stenosis was not fully treated or fully stabilised. The Applicant's obstructive sleep apnoea was not fully treated or fully stabilised.)
(e) The Applicant had a capacity to work 8-14 hours per week within 2 years with intervention.[8]
[7] Exhibit 1, T Documents T 18, pages 125-131, Job Capacity Assessment Report dated 12 October 2016.
[8] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 6.
A decision was made to reject the Applicant’s DSP application on 19 October 2016 on the basis that the Applicant did not have an impairment of 20 points or more under the Impairment Tables.[9]
[9] Exhibit 1, T Documents, T19, pages 132 to 133, Letter to Mr Pocock from Centrelink dated 19 October 2016.
The Applicant sought review of the decision and provided a medical certificate from Dr Thomas Toro in support of this application. Dr Toro provided:[10]
THIS IS TO CERTIFY THAT
Mr Gregory Pocock is a patient of mine at this practice. I am writing to verify that he most definitely has a severe disability resulting from a large ischaemic stroke suffered in November 2014. He has since developed a severe form of epilepsy as a result of this, that he sees various specialists in regards to. I have included the most recent letter from the Neurology Specialist, Dr Grant Kleinschmidt, who describes these events as ongoing and numerous, both diurnal and nocturnal. He is seen regularly in the Epilepsy Clinic at the Toowoomba Base Hospital. He is on a raft of medications, none of which have made much difference to these symptoms. They are so debilitating that he is now unable to live independently and has had to move into a supported accommodation unit. It is my medical opinion that the diagnosis of frontal epilepsy and previous stroke have been confirmed beyond any doubt, are being seen to regularly by the best specialists in the area, and yet the seizures persist almost every day. This is now a full 2y since the stroke. I think it is fair to assume that his condition has stabilised and meaningful improvement is highly unlikely. I think it is clear that they have a massive impact on his function. As I have already stated, he is unable to live independently and unable to drive. I note in your correspondence to Gregory that you have assessed him for spinal disorder, respiratory disorder and diabetes, but I can assure you these are not the pertinent issues. The major concern for Gregory is that he gets seizures almost every day and that this is not going away.
[10] Exhibit 1, T Documents, T20, page 134, Medical Certificate from Dr Thomas Toro dated 8 November 2016.
On 28 November 2016, an ARO affirmed the decision to refuse the Applicant’s DSP application having made the following key findings:[11]
·Your conditions of epilepsy, depression, spinal canal stenosis, diabetes and obstructive sleep apnoea are not accepted as being permanent as they have not been fully treated and stabilised.
· You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
[11] Exhibit 1, T Documents, T21, pages 135 to 141, Decision of ARO and notes dated 28 November 2016.
On 7 February 2017, the Applicant sought review of the ARO decision by the SSCSD and on 1 June 2017 the decision under review was affirmed by the SSCSD.[12]
[12] Exhibit 1, T Documents, T3, pages 7 to 12, SSCSD’s Decision and Reasons for decision dated 1 June 2017.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of disability support pension. In the present case, the predominate qualification questions before the Tribunal are:
1)Does the applicant have a physical, intellectual or psychiatric impairment;[13] and
2)Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[14]
3)Does the Applicant have a continuing inability to work?[15]
[13] Section 94(1)(a) of the Act.
[14] Section 94(1)(b) of the Act.
[15] Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination which is made pursuant to section 26 of the Act and came into force on 1 January 2012. Section 5(2) of the Determination set out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a) unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b) are function based rather than diagnosis based; and
(c) describe functional activities, abilities, symptoms and limitations; and
(d) are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Under the Determination the impairment of a person is limited to being assessed on the basis of what a person can, or could not do, not on the basis of what the person chooses to do or what others do for them.[16] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[17] Self-reported symptoms in relation to the persons condition can only be taken into account where there is corroborating evidence.[18]
[16] Section 6(1) of the Determination.
[17] Section 6(2) of the Determination.
[18] Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than 2 years.[19]
[19] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[20]
(a) have been fully diagnosed by an appropriately qualified medical practitioner; and
(b) have been fully treated; and
(c) have been fully stabilised; and
(d) more likely than not, in light of available evidence, to persist for more than 2 years.
[20] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated it must be considered whether there is corroborating evidence of the condition; and what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next two years.[21]
[21] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[22]
(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
(ii)   there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[22] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliability be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[23]
[23] Section 6(7) of the Determination.
The Determination sets out that in selecting the applicable Impairment Table it is necessary to identify the loss of function; then refer to the Table related to the function affected; then identify the correct impairment rating.[24] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[25] Where multiple 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.[26]
[24] Section 10 of the Determination.
[25] Sections 10(3) and (4) of the Determination.
[26] Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[27]
[27] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which in summary requires that a person must:
(a) if they do not have a severe impairment, have actively participated in a program of support; and
(b) be unable to work for at least 15 hours per week independently of a program of support; and
(c) be unable to participate in a training activity during the next 2 years or 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.
A person’s impairment is considered to be 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.[28]
[28] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP and therefore assessment of the relevant impairment ratings is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[29]
[29] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Further medical and other evidence that are provided outside this Relevant Period may be relevant, however only insofar as they are referable to an Applicant’s condition during the Relevant Period.[30]
[30] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services[2015] FCA 1123, at [25]-[28].
Relevant Period
The Relevant Period in this matter commences on 5 September 2016 being the date the Applicant lodged his DSP application and ending 13 weeks later on 5 December 2016. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
Issues
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention and the Respondent considers the Applicant’s impairments include right sided front parietal stroke, epilepsy, depression, diabetes, spinal canal stenosis and obstructive sleep apnoea.[31]
[31] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 28.
The remaining issues for the Tribunal to consider is:
(a) Whether, within the relevant period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
(b) If so, did the Applicant have a continuing inability to work?
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
I will consider each of the Applicant’s impairments in turn.
Right sided front parietal stroke condition
The medical evidence before the Tribunal indicates that the Applicant suffered a stroke in 2014. The condition has been referred to as a cerebrovascular accident,[32] ischaemic stroke[33] or right sided frontoparietal stroke[34], herein referred to as “stroke condition”. The Applicant’s condition has been managed by Neurologist, Dr Grant Kleinschmidt since 12 August 2016 with the support of various general practitioners. In his report dated 12 August 2016 Dr Kleinschmidt provided:[35]
“Thanks for referring Gregory to the Epilepsy Clinic where he was seen today. He has a history of ischaemic stroke which was diagnosed in November 2014 but may have occurred somewhat prior to that on a background of diabetes and hypertension.”
[32] Exhibit 1, T Documents, T7 page 68, Report of Dr M J Kahelin dated 18 December 2014.
[33] Exhibit 1, T Documents, T12, page 84, Report of Dr Grant Kleinschmidt dated 12 August 2016.
[34] Exhibit 1, T Documents, T8, page 76, Report of Dr Tony Bragg dated 15 March 2016.
[35] Exhibit 1, T Documents, T12, page 84Report of Dr Grant Kleinschmidt dated 12 August 2016.
Dr Kleinschmidt in a report dated 26 April 2018 in response to a Legal Aid Queensland request for information provided:[36]
Stroke
This medical condition is stable. The patient suffered a stroke in 2014 which was diagnosed in November of that year but likely to have occurred approximately six weeks prior. The onset was associated with a fall. There remain minor defects with balance, short term memory and both verbal and written comprehension. He suffers from intermittent sensory changes of the left thigh. Memory issues have been confirmed on testing today with a deficit in short term memory which is inconsistent with the patient age. He also had an antalgic gait and difficulty with tandem walk. There was no evidence for sensory neglect. MRI brain scan shows a large volume of gliosis in the right parietal and temporal regions. This condition is stable and stationary with permanent deficits.
[36] Exhibit 7, Report of Dr Grant Kleinschmidt dated 26 April 2018.
In a follow up report dated 3 August 2018 Dr Kleinschmidt was asked to explain why he reached the conclusion that the Applicant’s stoke condition was “stable and stationary with permanent deficits” and whether it is likely or unlikely that reasonable treatments/deficits arising from the Applicant’s stoke would result in a significant improvement in his level of impairment within 2 years that would allow him to do 15 hours of work per week in any job on a sustainable basis. Dr Kleinschmidt provided:[37]
It is unlikely that reasonable treatments/interventions for the deficits would result in significant improvement in his level of impairment within two years that would allow him to work fifteen hours or more per week in any job on a sustainable basis. The stroke occurred in [2014] and any healing has been completed. Therefore, further intervention will not provide a meaningful outcome. Due to the stroke and the management of his epilepsy and other medical conditions, it is likely that he would be unable to sustain any employment indefinitely. I have reached this conclusion due to the time that past since the original stroke. Gains are made in the first weeks to months in terms of cognitive function. After two years, brain function will no longer improve and in fact studies show that brain function declines.
[37] Exhibit 4, Report of Dr Grant Kleinschmidt dated 3 August 2018.

In the same report Dr Kleinschmidt provided responses in relation to questions regarding the Applicant’s functional impairment as a result of the stroke condition during the Relevant Period. Dr Kleinschmidt’s responses were consistent with the Applicant having a moderate functional impairment in line with the requirements set out in Table 7 of the Impairment Tables.[38]
[38] Ibid.
At the hearing the Applicant gave evidence that during the Relevant Period:
·     He had trouble finding things, he might have been looking at the thing however it did not register
·     He got angry more often
·     He would see Melissa Buenen, who is the Village Manager in the Retirement Village where he lives, on a daily basis as he was getting forgetful
·     His sister would come around every few days when she could
·     He could wash and feed himself
·     He could plan a trip to the shops but needed a list to help him remember what he wanted to buy
·     He was still looking after himself
·     He could make some decisions, but would seek help from Melissa or his sister if he needed to
·     He did not interact with others as well as he previously did
·     The difficulties discussed above all caused more difficulty after the Relevant Period as he experienced more frequent fits.
The Respondent concedes that the Applicant’s stroke condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and contended that the impairment should be assigned 10 points under Table 7 of the Impairment Tables.[39]
[39] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 32.
Table 7 considers Brain Function. A moderate functional impact requires the following descriptor to be met:[40]
[40] Table 7 of the Impairment Tables, Part 3 of the Determination.

10

There is a moderate functional impact resulting from a neurological or cognitive condition.

(1)        The person needs occasional (less than once a day) assistance with day to day activities and has moderate difficulties in at least one of the following:

(a)        memory;

Example 1: The person often forgets to complete regular tasks of minor consequence such as putting the bin out on rubbish night.

Example 2: The person often misplaces items.

Example 3: The person needs to use memory aids (such as shopping lists) to remember any more than 3 or 4 items.

(b)        attention and concentration;

Example 1: The person has difficulty concentrating on complex tasks for more than 30 minutes.

Example 2: The person has significant difficulty focusing on a task if there are other activities occurring nearby.

(c)        problem solving;

Example: The person has difficulty solving some day to day problems or problems not previously encountered and may need assistance or advice from time to time.

(d)        planning;

Example: The person has difficulty planning and organising new or special activities (such as planning and organising a large birthday party).

(e)        decision making;

Example: The person has some difficulty in prioritising and decision making and displays poor judgement at times, resulting in negative outcomes for self or others.

(f)         comprehension;

Example: The person has difficulty understanding complex instructions involving multiple steps and may need more prompts, written instructions or repeated demonstrations than peers to complete tasks.

(g)        visuo-spatial function;

Example: The person has some difficulty with visuo-spatial functions (such as difficulty reading maps, giving directions or judging distance or depth) but this does not result in major limitations in day to day activities.

(h)        behavioural regulation;

Example: The person occasionally (less than once a week) has difficulty controlling behaviour in routine situations (such as showing frustration or anger or losing temper for minor reasons but displays no physical aggression).

(j)         self awareness.

Example: The person lacks awareness of own limitations, resulting in mild difficulties in social interactions or problems arising in day to day activities.

A severe functional impact requires the following descriptor to be met:[41]
[41] Ibid.

20

There is a severe functional impact resulting from a neurological or cognitive condition.

(1)        The person needs frequent (at least once a day) assistance and supervision and has severe difficulties in at least one of the following:

(a)        memory;

Example 1: The person is unable to remember routines, regular tasks and instructions.

Example 2: The person has difficulty recalling events of the past few days.

Example 3: The person gets easily lost in unfamiliar places.

(b)        attention and concentration;

Example 1: The person is unable to concentrate on any task, even a task that interests the person, for more than 10 minutes.

Example 2: The person is easily distracted from any task.

(c)        problem solving;

Example: The person is unable to solve routine day to day problems (such as what to do if a household appliance breaks down) and needs regular assistance and advice.

(d)        planning;

Example: The person is unable to plan and organise routine daily activities (such as an outing to the movies or a supermarket shopping trip).

(e)        decision making;

Example: The person is unable to prioritise and make complex decisions and often displays poor judgement, resulting in negative outcomes for self or others.

(f)         comprehension;

Example: The person is unable to understand basic instructions and needs regular prompts to complete tasks.

(g)        visuo-spatial function;

Example: The person is unable to perform many visuo-spatial functions, such as reading maps, giving directions (including to the person’s house) or judging distance or depth (resulting in stumbling on steps or bumping into objects).

(h)        behavioural regulation;

Example: The person is often (more than once a week) unable to control behaviour even in routine, day to day situations and may be verbally abusive to others or threaten physical aggression.

(j)         self awareness.

Example: The person lacks awareness of own limitations, resulting in significant difficulties in social interactions or problems arising in day to day activities.

Based on the reports of Dr Kleinschmidt discussed above I am satisfied that the Applicant’s stroke condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and as such the functional impairment of the condition can be assessed under Table 7 of the Impairment Tables.
The difference in the descriptors in Table 7 of the Impairment Tables in relation to a moderate and severe impairment relates to the frequency of assistance required with day to day activities and severity of the difficulty the person experiences in undertaking those outlined activities. The Tribunal is restricted to considering the functional impact that the Applicant’s stroke condition caused him during the Relevant Period.
Considering the reports provided by Dr Kleinschmidt and the evidence provided by the Applicant I am satisfied that the Applicant’s impairment should be assigned 10 points under Table 7. During the Relevant Period, I do not consider that the Applicant met the requirements to be assigned 20 points under Table 7 as there is no evidence that his stoke condition resulted in him needing frequent (at least once a day) assistance and supervision and that he had severe difficulties with the functions outlined in Table 7.
It should be mentioned at this point that Ms Melessa Buenen and Ms Gayle Pocock provided Statutory Declarations dated 26 June 2018[42] and 9 July 2018[43] respectively in relation to the Applicant’s functional impairments. The Respondent submitted that the Statutory Declarations should be attributed little weight on the basis that they were made some 18 months after the Relevant Period, and overall referred to the Applicant’s functional impairment at the time of the statement not during the Relevant Period and neither Ms Buenen or Ms Pocock are medical practitioners.
[42] Exhibit 5, Statutory Declaration of Melessa Buenen dated 26 June 2018.
[43] Exhibit 6, Statutory Declaration of Gayle Pocock dated 9 July 2018.
In my view the Statutory Declarations of Ms Buenen and Ms Pocock go to the Applicant’s functional impairment after his epilepsy onset[44] and relate to assistance provided mainly as a result of his epilepsy.[45] The Applicant’s epilepsy condition is discussed below. As such the contents of the Statutory Declarations are not of assistance in assigning an impairment rating for the stroke condition. This view is supported by the evidence given by the Applicant at the Hearing that his functional impairments in relation to brain function worsened after the onset of his epilepsy.
[44] Exhibit 5, Statutory Declaration of Melessa Buenen dated 26 June 2018, paragraph 29.
[45] Exhibit 6, Statutory Declaration of Gayle Pocock dated 9 July 2018, paragraph 7.
While both the stroke condition and epilepsy condition impact upon the Applicant’s brain function, the Tribunal is limited to assessing the functional impairment of conditions considered to be permanent (fully diagnosed, fully treated and fully stabilised during the Relevant Period).
Based on the evidence before the Tribunal I find that the Applicant’s stroke condition was fully diagnosed, fully treated and fully stabilised at the relevant period and can be assigned a functional impairment rating of 10 points under Table 7 of the Impairment Tables.
Epilepsy Condition
In a Medical Certificate provided to Centrelink dated 24 May 2016 Dr Saleh diagnosed the Applicant as having Frontal lobe epilepsy with an onset date of 23 February 2016. The prognosis provided by Dr Saleh was that the condition was likely to affect the Applicant’s capacity to work or study for 3-12 months with the past and current treatment being anti-epileptics and planned treatment being neurology reviews.[46]
[46] Exhibit 1, T Documents, T9, page 78, Medical Certificate from Dr Saleh dated 24 May 2016.
The report of Neurologist, Dr Kleinschmidt dated 12 August 2016 supports the timing of the diagnoses of Dr Saleh. Dr Kleinschmidt provided:[47]
Thanks for referring Gregory to the Epilepsy Clinic where he was seen today. He has a history of ischaemic stroke which was diagnosed in November 2014 but may have occurred somewhat prior to that on a background of diabetes and hypertension. He presented with a fall and was managed at Princess Alexandra Hospital. Seizure onset occurred in 2016. He was woken from sleep and thought it may have related to his recently started CPAP device. He has subsequently had ongoing numerous events, both diurnal and nocturnal but with a propensity for occurring at 4 or 5 o'clock in the morning after he has arisen. They consist of jaw jerking and then right facial contraction with visual disturbance to the right more so than left visual field. There has been no involvement of limbs to his knowledge and he is able to walk during an event. There are no episodes of lost time or discognition and he has been generally confused for more than 12 months which he attributes to atorvastatin and which precedes his overt seizures.
[47] Exhibit 1, T Documents, T12, page 84, Report of Dr Kleinschmidt dated 12 August 2016.
Based on the reports from Dr Saleh and Dr Kleinschmidt I am satisfied that the Applicant’s epilepsy condition was fully diagnosed at the Relevant Period. The Respondent does not dispute this finding however contends that the condition was not fully treated or fully stabilised during the Relevant Period.[48]
[48] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 34.
The Respondent contends that the condition was not fully treated or fully stabilised during the Relevant Period as the Applicant’s pharmacological treatment was being titrated by Dr Kleinschmidt throughout the Relevant Period. The Applicant's anti-epileptic medication, Levetiracetam (brand name Keppra), was added to the Applicant's treatment by Dr Kleinschmidt on 12 August 2016, he was being regularly reviewed and his medications were being titrated to optimal dosages.[49] In his report of 12 August 2016 Dr Kleinschmidt advised that:[50]
In view of the apparent issues with atorvastatin in the current dose, I have reduced the dose to 40 mg daily which is quite adequate for stroke prevention. He should continue the current dose of valproate and his CPAP and I have added Keppra 250 mg twice daily. He will see you in two months' time and if he continues to have seizures, I recommend that Keppra be increased to 500 mg bd. In the long term, I will try to get him off Epilim as he has gained weight and has diabetes and obstructive sleep apnoea. He will need to be seizure-free and have a normal EEG before he will be able to drive.
[49] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraphs 34 and 35.
[50] Exhibit 1, T Documents, T12, page 84, Report of Dr Kleinschmidt dated 12 August 2016.
In the Centrelink Verification of Medical Condition(s) form dated 15 August 2016 Dr Saleh listed the Applicant’s Epilepsy as a permanent condition with treatment being Valproate both past and current and Keppra as planned. Dr Saleh provided that the recommended assistance that would could help the patient into work or stay in a job was “stabilise antiepileptic’s”.[51]
[51] Exhibit 1, T Documents, T13, page 87, Verification of medical condition(s) dated 15 August 2016.
In the Medical Certificate dated 25 August 2016 Dr Toro listed the Applicant’s primary condition as Frontal Lobe epilepsy with date of onset being 23/02/2016 and as permanent (likely to persist for 2 years or more). Planned treatment was listed as “continue neurology reviews, Titrate medications as clinically indicated”.[52]
[52] Exhibit 1, T Documents, T14, page 89, Medical Certificate of Dr Thomas Toro dated 25 August 2016.
In a report dated 21 January 2017 Dr Kleinschmidt provided:[53]
Gregory was reviewed today with regard to epilepsy, a consequent of stroke. He has multiple medical conditions as you are aware and is unlikely to secure any employment in the future and he certainly is not able to drive trucks or cars due to ongoing seizure activity, He reports ongoing nocturnal seizers, generally alerted to this by his dog. He has had up to five to six events per month until Keppra was increased in November 2016 with a reduction in events.
He is currently on Keppra 500 mg twice daily and there has been no seizure activity since 28 November 2016. This is encouraging but ultimately, I would prefer to cease his Epilim due to his obesity, sleep apnoea and diabetes.
Today, I have increased Keppra to 750 mg twice daily and I would like to see him in three months. Ultimately, he may require a higher dose still in order to remove the Epilin successfully. I have suggested that he see an advocate to assist him with his dealings with Centrelink who seem to be unaccepting of his medical conditions on the new guidelines.
[53] Exhibit 1, T Documents, T2, page 6, Report of Dr Kleinschmidt dated 21 January 2017.
In completing the Basic Rights Queensland Letter Dr Johansen on 1 February 2017 opined that all reasonable treatments had not been undertaken for the Applicant’s epilepsy condition as he was currently seeing Dr Kleinschmidt with titration of Keppra dose.[54]
[54] Exhibit 1, T Documents, T23, pages 143 to 150, Questionnaire completed for Basic Rights Queensland, by Dr Tamara Johansen dated 1 February 2017.
Based on the medical evidence before the Tribunal I find that the Applicant’s epilepsy condition was not fully treated and fully stabilised during the Relevant Period as he was undergoing regular reviews with his specialist and his medication was being adjusted to reduce the regularity of seizures.
It is noted that Dr Kleinschmidt in his report dated 26 April 2018 provided:[55]
Epilepsy
This medical condition is stable. The patient developed seizures in March or April of 2015 as a consequence of the damage caused by stroke. Epilepsy limits his employment opportunities for which he may have aptitude or training. He is currently seizure fee on Levetiracetam 1000mg twice daily and Valproate 500mg twice daily. The treatment has been associated with weight gain, sedation and cognitive slowing. The epilepsy contributes to issues with anger and anxiety. Anger and irritability are known side effects of Levetiracelam and this cause inter-personal conflict. Apart for the adverse effects of medication, this condition is stable and stationary.
[55] Exhibit 7, Report of Dr Kleinschmidt dated 26 April 2018.
At Hearing the Applicant reported that he had not had a seizure for 12 or 18 months and said it took approximately 12 months to get the medication right. As discussed above the Statutory Declarations of Ms Buenen and Ms Pocock address the Applicant’s functional impairment that result from his epilepsy condition and I accept the condition causes the Applicant functional impairment. The Tribunal is however limited to considering the functional impairment of conditions which are considered permanent during the Relevant Period. As I have found the condition was not fully treated and fully stabilised during the relevant period, it is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Spinal canal stenosis condition
In the evidence before the Tribunal the Applicant’s spinal canal stenosis is first mentioned in the Centrelink Medical Certificate completed by Dr Saleh on 24 May 2016. Dr Saleh did not provide a date of onset and provided that past and current treatment was ‘nil’ with planned treatment as ‘neurosurgical input’ and an ‘Uncertain’ prognosis.[56]
[56] Exhibit 1, T Documents, 9, page78, Medical Certificate of Dr Saleh dated 24 May 2016.
On 1 August 2016, the Applicant was reviewed by Orthopaedic and Spinal Surgeon Dr Leo Zeller who provided in his report of the same date:[57]
I have reviewed this gentleman today. The MRI scan of the spine shows degenerative disease in his cervical spine but no other significant problems. I would not suggest any surgery at this stage. He will come back and see you for pain management. I would also suggest that if he continues to struggle that a referral be undertaken to the orthopaedic physiotherapy screening clinic at the Toowoomba hospital.
[57] Exhibit 1, T Documents, T11, page 83, Report of Dr Leo Zeller dated 1 August 2016.
Based on the reports of Dr Saleh and Dr Zeller I find that the Applicant’s spinal canal stenosis condition was fully diagnosed at the relevant period. The Respondent does not dispute this finding however contends that the Applicant had not undertaken reasonable treatment for the spinal condition and as such it was not fully treated or fully stabilised during the Relevant Period.[58]
[58] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 37.
At the Hearing the Applicant gave evidence that the pain caused by this condition was terrible during the Relevant Period and still is and that this is something he has learnt to live with. When the pain is too much he sits down. The Applicant reported that he takes Panadol Osteo to ease the pain and has not had physiotherapy as he used the visits in his care plan for podiatrist visits instead. The Applicant advised that he does not think that physiotherapy would help.
Based on the evidence before the Tribunal I find that there is no evidence that the Applicant had engaged in all reasonable treatment for his spinal condition during the Relevant Period and therefore was not fully treated and fully stablished during the Relevant Period. Accordingly, the Applicant’s spinal condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Obstructive Sleep Apnoea condition

The Patient Health Summary prepared by Dr Toro dated 2 September 2016 provides that the Applicant was diagnosed with Obstructive sleep apnoea in 1995.[59] The other evidence before the Tribunal does not deal with the Applicant’s obstructive sleep apnoea condition in any great detail.
[59] Exhibit 1, T Documents, T17, page 124, Patient Health Summary completed by Dt Thomas Toro dated 2 September 2016.
A Centrelink Essential Medical Equipment Payment – Medical confirmation form and associated Queensland Government Equipment Loan Agreement outline that the Applicant received a CPAP machine on 1 May 2015[60].
[60] Exhibit 1, T Documents, T10 pages 70 to 82, Essential Medical Equipment Payment dated 16 June 2015.
In the reported dated 26 April 2018 Dr Kleinschmidt stated:[61]
Obstructive sleep apnoea
This condition is stable and stationary on treatment. Mr Pocock commenced CPAP just prior to the development of seizures in 2015. From his perspective, the initial seizures were thought to be episodes of panic disorder. Whilst the CPAP treatment is tolerated and the patient is compliant, there is ongoing sedation and cognitive slowing. Sleep apnoea is very relevant to epilepsy management as it is a strong provoking factor for seizures. Conversely, epilepsy management is an issue with regards to sleep apnoea as sleep apnoea severity is proportional to weight. Valproate in particular causes weight gain.
[61] Exhibit 7, Report of Dr Kleinschmidt dated 26 April 2018.
At Hearing the Applicant reported that he uses his CPAP machine every night as otherwise his throat collapses. He gave evidence that his sleep apnoea was first noticed in 2014 when he was admitted in the PA Hospital in Brisbane and that since then he has not had any further doctor or specialist review. The Applicant reported that before he got the CPAP machine he was waking up over 30 times a night as his throat collapsed, he stopped breathing and his body then woke him up. During that time the Applicant said he was always tired.
The Applicant reported that he now uses the CPAP machine whenever he lies down, including when he watches television and that as a result he is less tired and has more energy. He advised he now sleeps better and that the CPAP machine is the best thing he has ever seen.
Based on the evidence before the Tribunal I am satisfied that the Applicant’s Obstructive sleep apnoea condition was fully diagnosed at the Relevant Period. The Respondent does not dispute this view however contends that there is no evidence that the condition was fully treated or fully stabilised during the relevant period. The Respondent contends that although the Applicant had been loaned a CPAP machine on 1 May 2015 there is no evidence whether the Applicant had any further reviews with a specialist or even his general practitioner to assess the Applicant’s symptoms.[62]
[62] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 39.
I agree with the Respondents contentions and based on the limited medical evidence before the Tribunal and the evidence provided by the Applicant at Hearing I am not satisfied that the Applicant’s sleep apnoea condition was fully treated and fully stabilised during the Relevant Period. Accordingly, the Applicant’s sleep apnoea condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Even if I had accepted that the Applicant’s sleep apnoea condition was fully treated and fully stabilised and therefore permanent for the purposes of the Determination there is no evidence before the Tribunal that indicates that the condition has caused the Applicant a functional impairment during the Relevant Period.
Diabetes condition
The Patient Health Summary prepared by Dr Toro dated 2 September 2016 provides that Diabetes Mellitus, Type 2 was diagnosed on 4 September 2015. [63] The other material before the Tribunal does not deal with the Applicant’s diabetes in any great detail.
[63] Exhibit 1, T Documents, T17, page 124, Patient Health Summary completed by Dr Thomas Toro on 2 September 2016.
At Hearing the Applicant gave evidence that his Diabetes has no effect on him, that the Doctor told him he has it and it is under control with medication. The Applicant reported that he had not seen a dietician or diabetes educator and that he has used his care plan sessions to see a podiatrist rather than a dietician.
The Respondent accepts the Applicant’s diabetes was fully diagnosed however contended that there was no evidence that the condition was fully treated or fully stabilised during the Relevant Period.[64]
[64] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 41.
Based on the limited evidence before the Tribunal I am satisfied that the Applicant’s diabetes condition was fully diagnosed but was not fully treated and stabilised during the Relevant Period. Accordingly, the Applicant’s diabetes condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Even if I had accepted that the Applicant’s diabetes condition was fully treated and fully stabilised and therefore permanent for the purposes of the Determination there is no evidence before the Tribunal that indicates that the condition has caused the Applicant a functional impairment during the Relevant Period.
Depression condition
To be considered fully diagnosed Table 5 of the Impairment Tables which relates to Mental Health requires that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a psychologist (if the diagnosis has not been made by a psychiatrist).[65]
[65] Table 5 of the Impairment Tables, Part 3 of the Determination.
In the Centrelink Medical Certificate dated 26 November 2014, Dr Kahelin, General Practitioner, diagnosed the Applicant as having major depression with a prognosis as ‘likely to persist’.[66] The other evidence before the Tribunal does not deal with the Applicant’s depression condition in any great detail.
[66] Exhibit 1, T Documents, T5, page 60, Medical Certificate of Dr Kanelin dated 26 November 2014.
At the Hearing the Applicant gave evidence that he has now seen a psychiatrist in late 2017 or early 2018 and that he has been treated for the condition with medication for some time. It was clear that the events that have led to the Applicant’s condition are very difficult for him to talk about and continue to have an effect on him daily.
The Respondent contends that as there is no evidence that the Applicant had been reviewed by a clinical psychologist or a psychiatrist during the relevant period the depression condition cannot be considered fully diagnosed.[67]
[67] Exhibit 2, Respondent’s Statement of Issues, Facts & Contentions dated 16 October 2018, paragraph 43.
Based on the evidence before the Tribunal I agree with the Respondents contentions and find that the Applicant’s depression condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period. Accordingly, the Applicant’s depression condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing inability to work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables there is no need to consider whether the applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s stroke condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and accordingly based on the evidence before the Tribunal caused the Applicant a moderate functional impairment and can be assigned 10 points under Table 7 of the Impairment Tables.
I find that the Applicant’s epilepsy, spinal canal stenosis, obstructive sleep apnoea, and diabetes conditions were fully diagnosed however were not fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s depression condition was not fully diagnosed, fully treated or fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..........................[Sgd]..............................................
Associate
Dated: 1 February 2019

Date of hearing: 16 January 2019

Applicant: By Phone

Advocate for the Respondent: Ms Jacky Vetter

Solicitors for the Respondent: Sparke Helmore Lawyers

[2019] AATA 81

1 February 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	16 January 2019
Applicant:	By Phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Sparke Helmore Lawyers