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

[2021] AATA 3293

Predo and Secretary, Department of Social Services (Social services second review) [2021] AATA 3293 (14 September 2021)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL	)
)	No: 2020/4676
GENERAL DIVISION	)

Re: Jennifer Predo
Applicant

And: Secretary, Department of Social Services
Respondent

DIRECTION

TRIBUNAL:  Member D Mitchell

DATE OF CORRIGENDUM: 15 September 2021

PLACE:           Brisbane

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975 (Cth), to alter the text of the decision dated 14 September 2021, as follows:

1.The date “22 May 2019” as it reads on page 6 at paragraph 20 should read
“28 November 2019”. As such the first sentence of the text in paragraph 20, is amended to read “The Relevant Period in this matter commences on 29 August 2019, being the date, the Applicant lodged her claim for DSP, and ends 13 weeks later on 28 November 2019.”

....................[SGD].......................   Member D Mitchell

Division:GENERAL DIVISION

File Number:2020/4676            

Re:Jennifer Predo  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Member D Mitchell

Date:14 September 2021

Place:Brisbane

The decision under review is affirmed.

.....................................

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

14 September 2021

INTRODUCTION

1. On 29 August 2019, Ms Jennifer Predo (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form she lists a number of disabilities or medical conditions that significantly affect her ability to work.[2]

   [1]     Exhibit 1, T Documents, T33, pages 140-159, Claim for Disability Support Pension.

   [2]     Exhibit 1, T Documents, T23, pages 151 and 158, Claim for Disability Support Pension.

2. The Applicant’s claim was rejected on 20 December,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.

   [3]     Exhibit 1, T Documents, T44, pages 178-179, Centrelink Notice: Rejection of DSP Claim.

3. The Applicant sought review of that decision and on 29 April 2020 an Authorised Review Officer (ARO) affirmed the decision.[4]

   [4]     Exhibit 1, T Documents, T47, pages 183-189, Authorised Review Officer Decision and Notes.

4. The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[5] On 21 July 2020 the SSCSD affirmed the decision to refuse her claim for DSP.[6]

   [5]     Exhibit 1, T Documents, T48, pages 190-191, Request for Statement and Application for First Review.

   [6]     Exhibit 1, T Documents, T2, pages 4-16, Decision of the SSCSD.

5. Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 27 July 2020.[7]

   [7]     Exhibit 1, T Documents, T1, pages 1-3, Application for Review.

6. On 7 September 2021, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.

7. The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of her claim or within 13 weeks thereafter.

   THE LAW

8. The relevant law in assessing a person’s qualification for DSP is found in the
   Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant.

9. Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:

   1.does the Applicant have a physical, intellectual or psychiatric impairment;[8]

   2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[9] and

   3.does the Applicant have a continuing inability to work?[10]

   [8]     Section 94(1)(a) of the Act.

   [9]     Section 94(1)(b) of the Act.

   [10]    Section 94(1)(c) of the Act.

10. Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[11]

    [11]    Section 6(3) of the Determination.

11. Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[12] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.

    [12]    Sections 6(3) and (4) of the Determination.

12. 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:

    (a)whether there is corroborating evidence of the condition;

    (b)what treatment or rehabilitation has occurred in relation to the condition; and

    (c)whether treatment is continuing or planned in the next two years.[13]

    [13]    Section 6(5) of the Determination.

13. A condition is considered to be fully stabilised if:[14]

    (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.

    [14]    Section 6(6) of the Determination.

14. Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably 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.[15]

    [15]    Section 6(7) of the Determination.

15. 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.[16] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[17]

    [16]    Section 6(2) of the Determination.

    [17]    Section 8(1) of the Determination.

16. 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 requires that a person must:

    (a)if they do not have a severe impairment, have actively participated in a program of support (POS); and

    (b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; 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 POS within the next 2 years.

17. 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.[18]

    [18]    Section 94(3B) of the Act.

18. 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.[19]

    [19]    Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.

19. 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 is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[20]

    [20]    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

20. The Relevant Period in this matter commences on 29 August 2019, being the date, the Applicant lodged her claim for DSP, and ends 13 weeks later on 22 May 2019. 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

21. 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.[21] The Respondent considers the Applicant’s impairments for the purpose of the claim for DSP in question consist of HLA associated peripheral spondyloarthropathy,[22] mental health,[23] hearing loss,[24] asthma,[25] hypertension, GORD, diverticulitis, psoriasis, diabetes and fatty liver[26] conditions.

    [21]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 6, paragraph 29.

    [22]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, pages 6-7, paragraphs 32-38.

    [23]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraphs 39-42.

    [24]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraphs 43-45.

    [25]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraphs 46-48.

    [26]    Exhibit 2, Secretary’s Statement of Facts, Issues & Contentions, page 8, paragraphs 49-50.

22. The remaining issues for the Tribunal to consider are:

    1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and

    2.       if so, did the Applicant have a continuing inability to work?

    CONSIDERATION

23. At Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was open with her answers to the questions she was asked and was forthcoming in providing her evidence.

24. The Applicant told the Tribunal that over the years she has moved a lot and has had a number of times where she has found herself homeless. Her living situation impacted upon her ability to maintain relationships with general practitioners and to some extent specialists, which she said makes it difficult to get the required reports to support her claim for DSP.

25. The Applicant provided written submissions on the morning of the Hearing which included a list of her current illnesses/health issues.[27] As part of that document the Applicant provided dates of onset, medication that she is currently taking together with that which she ceased, current tests/appointments and a description of how her conditions affect her. The Applicant said she considered every illness/health issue listed to have been fully diagnosed. She said she did not make any of it up, the document reflected what she had been told by the doctors. When asked whether she thinks all of the listed conditions were fully treated and stabilised she said it depends as each day is different, sometimes it is a good day and other days it is not. She said that the medication has stabilised everything.

    [27]    Exhibit 3, Applicant’s submissions with attachments received by the Tribunal on 7 September 2021.

26. The Tribunal accepts the Applicant’s assertion that the only reason she applied for the DSP was because she believed she was qualified and that she could not work. However, the qualification requirements for DSP are clear in relation to the requirement to satisfy the Respondent and now the Tribunal standing in the shoes thereof, that conditions are fully diagnosed, fully treated and fully stabilised within the Relevant Period. Where a person’s situation changes, or further medical evidence is able to be provided there is nothing that prevents them from making further claims for DSP to test their eligibility.

27. The difficulty in this matter is that the Tribunal and Respondent accepts that the Applicant has a number of long-term conditions which result in functional impacts, however the corroborating medical or independent evidence before the Tribunal as a whole is limited. The Applicant told the Tribunal that she could not afford to get specialist reports and did not understand what else she could do to show she meets the DSP eligibility requirements. She acknowledged that there were no reports from a clinical psychologist or psychiatrist, Ear Nose and Throat specialist (ENT) or audiologist.

28. While the Tribunal empathises with the Applicant, it is bound to apply the law that is in place to determine the Applicant’s eligibility for DSP.

    Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

    HLA associated peripheral spondyloarthropathy condition

29. Based on the medical evidence before the Tribunal there is no doubt that the Applicant’s HLA associated peripheral spondyloarthropathy condition was fully diagnosed at the Relevant Period. This point is not in contention.[28] In particular the Tribunal notes the diagnosis provided by Dr Paul Kubler, rheumatologist in a report dated 12 October 2015.[29] The issue arises as to whether the condition was fully treated and fully stabilised during the Relevant Period.

    [28]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 32.

    [29]    Exhibit 1, T Documents, T14, pages 91-92, Report of Dr Clare Owens and Dr Paul Kubler.

30. The Respondent contended that the Applicant’s HLA associated peripheral spondyloarthropathy condition was not fully treated and fully stabilised during the Relevant Period in circumstances where:[30]

    a.  the Applicant did not start engaging regularly with a rheumatologist until 31 May 2019;

    b.  trials of new medication (Leflunomide and Methotrexate) were occurring during the qualification period;

    c.  the Applicant told the ARO that she was soon to commence an online pain management program; and

    d.  there is no corroborating evidence before the Tribunal that, by the end of the qualification period, further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years.

    [30]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 35.

31. The Respondent relied on the following summary of the available medical and other evidence in support:[31]

    [31]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraph 36.

    a.    On or about 12 October 2015, Dr Kubler commenced the Applicant on Sulfasalazine (initially at a dose of 500mg daily but weaning up over a period of 4 weeks to 1g BD) and Naproxen SR 750 mg nocte (T14/92). He requested medical imaging and pathology and stated that the Applicant would be reviewed in two months’ time. There is no evidence before the Tribunal of this review occurring.

    b.    On 21 November 2016, Ipswich Hospital wrote to the Applicant advising she had been placed on the waiting list for a Rheumatology Clinic appointment (T15/93). There is no evidence before the Tribunal of this appointment occurring.

    c.     On 6 March 2017, Dr Hossain, general practitioner, advised the Agency that the Applicant was in need of further specialist management (T20/103).

    d.    On 2 March 2017, the Applicant’s file was assessed for the purpose of a Job Capacity Assessment (JCA) report dated 7 March 2017. The assessor recommended the condition was not fully treated and fully stabilised as it was reasonable to expect that with further specialist management over the next two years, there may be functional gains (T21/105).

    e.    On 17 March 2019, Dr Khademi, general practitioner, stated that the Applicant’s past treatment was Sulfasalazine and physiotherapy (T26/123). She did not identify any current treatment. She stated that future treatment was physiotherapy and monitoring.

    f.   On 31 May 2019, Dr Han, registrar at the Caboolture Hospital Rheumatology Outpatient Clinic, saw the Applicant for an initial appointment and stated that the Applicant had been under the care of Dr Kubler in 2015 and lost to follow up since then (T28/126). Dr Han stated that, at that time, the Applicant had been trialled on the Sulfasalazine but was unable to tolerate it due to side effects. Dr Han recommended further investigations and commencement of Leflunomide 20mg with monitoring of response and review in four months’ time.

    g.    On 26 June 2019, the Applicant was prescribed Leflunomide 20mg (T31/137).

    h.    On 10 September 2019, the Applicant had an appointment booked at the Caboolture Hospital Rheumatology Clinic on 10 October 2019 (T35/161). The outcome of this appointment is unclear, but the Applicant was prescribed Methotrexate and folic acid on 10 October 2019 (T37/163). The Applicant has indicated she commenced Methotrexate on 10 October 2019 (T38/164).

    i.   On 29 April 2020, the Applicant told the ARO that she was soon to commence an online pain management program (T47/188).

    j.   The Applicant gave evidence to the AAT1 (T2/7 at [17]) that she sees the rheumatologist at Caboolture Hospital every six months, with the last review in March 2020. She was started on Targin in early 2020 but was unable to tolerate it. She takes Leflunomide. She does not take pain medication because of her non-alcoholic fatty liver

32. The Respondent contended that engagement with a rheumatologist, appropriate trials of medication (including Leflunomide and Methotrexate) and attendance at a pain management program are all reasonable treatment as defined in subsection 6(7) of the Impairment Tables.[32]

    [32]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 37.

33. At Hearing, the Applicant told the Tribunal that:

    ·She saw Dr Kubler in October 2015 and he ordered x-rays and bloods and prescribed her sulfasalazine.

    ·She did not see Dr Kubler after that as the sulfasalazine made her sick and she was homeless at the time. She stopped the medication and did not go back.

    ·Between October 2015 when she saw Dr Kubler she did not see a specialist for this condition again until May 2019.

    ·This was because at the time she was homeless and not in the Royal Brisbane Hospital catchment area. When she was living in the Ipswich catchment and had a referral to the rheumatology clinic, she was not offered an appointment.

    ·She moved back to the Caboolture catchment area, in 2017 as her stepfather was very ill and she needed to care for her mother. During the period up until 2018 when her mother passed away her focus was on caring for her mother not for herself.

    ·She did not see a physiotherapist after Dr Han recommended she do so, as she could not afford it.

    ·After seeing Dr Han in May 2019 she started taking leflunomide 20mg and has been taking it ever since.

    ·She had follow-up x-rays ordered by Dr Han at the Morayfield Health Hub.

    ·She is not taking any other medication for this condition as only a rheumatologist can prescribe it and she has not seen him for over a year now.

    ·She did start to take methotrexate on 10 October 2019 as prescribed by the Rheumatology Clinic at the Caboolture Hospital however, it made her sick, so she stopped taking it after a week and stuck with the leflunomide.

    ·This condition is a chronic condition that will only get worse and she has been told she will need to go into a nursing home.

    ·She did not recall saying she was going to do an online pain management program, however she did do a pain management clinic at the Morayfield Health Hub in 2020. That clinic ran for 1 day a week over 5 weeks.

    ·When asked whether her pain in her knees, back, hands, arms, shoulders and hips all come from this condition, that is what the doctors said.

    ·Her tennis elbow in both arms and arthritis in the joints in her hands and wrists are getting worse. She struggles to put clothes on the line due to pain.

    ·Her spine does not have the movement it did in 2014.

    ·Most pain medication makes her sick.

1. The Tribunal notes that Dr Valarie Sharp, general practitioner reported on 3 March 2021 that further specialist review or changes to medication would not result in a significant improvement in the level of impairment that results from the Applicant’s HLA associated peripheral spondyloarthropathy condition within 2 years.[33] Dr Sharp also provided a view in relation to functional impacts on the Applicant’s lower and upper limbs, however noted that they were based on the Applicant’s self-reports.[34] The Tribunal notes that Dr Sharp does not refer to the Relevant Period and additionally, she was not the Applicant’s treating general practitioner during the Relevant Period and has relied upon the Applicant’s self reporting with no evident reference to contemporaneous medical records. As such the Tribunal finds that the repot of Dr Sharp has no relevance to the Applicant’s claim for DSP that is the subject of the present application.

   [33] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, Questionnaire completed by Dr Valarie Sharp.

   [34] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment A, Questionnaire completed by Dr Valarie Sharp.

2. Based on the information before it, contentions made by the Respondent and evidence provided by the Applicant, the Tribunal is satisfied that the Applicant’s HLA associated peripheral spondyloarthropathy condition was fully diagnosed, however was not fully treated and fully stabilised during the Relevant Period. The evidence before the Tribunal is that during the Relevant Period the Applicant had not yet engaged with a pain management program (her evidence was that she attended such a program in 2020), was undergoing trials of medication and had only shortly before reengaged with specialist rheumatologist reviews.

3. Consequently, the Applicant’s HLA associated peripheral spondyloarthropathy condition cannot be considered permanent for the purposes of applying the Impairment Tables. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

   Mental health condition

4. A GP Management plan was completed in relation to depression and anxiety on

   
   

   7 March 2017.[35] In a medical certificate dated 29 December 2018, Dr Zahra Khademi, general practitioner, diagnosed the Applicant’s conditions that impact on her capacity to work or study to be depression disorder and anxiety.[36] Dr Khademi reported that the conditions were permanent with an uncertain prognosis and that past treatment was medication and psychologist, current treatment was increasing the dosage of citalopram and planned treatment included medication and psychologist.[37] Dr Khademi confirmed her opinion in further forms and letters.[38]

   [35]    Exhibit 1, T Documents, T22, pages 114-116, GP Management Plan.

   [36]    Exhibit 1, T Documents, T24, page 119, Medical Certificate of Dr Zahra Khademi.

   [37]    Exhibit 1, T Documents, T24, page 119, Medical Certificate of Dr Zahra Khademi.

   [38]    Exhibit 1, T Documents, T26, page 123, Verification of medical conditions by Dr Zahra Khademi; T32, page 138-139, Claim for Disability Support Pension Medical Evidence Checklist by Dr Zahra Khademi; T41, 173-174, GP Management Plan and T42, 175, Medical Certificate of Dr Zahra Khademi.

5. In a letter dated 17 December 2019, the Morayfield Psychology Centre stated that the Applicant had been seen on 5 occasions by Dr Claudia Petherick between November 2017 and January 2018.[39]

   [39]    Exhibit 1, T Documents, T2, page 16, Letter from Morayfield Psychology Centre.

6. At Hearing, the Applicant told the Tribunal that:

   ·Her depression and anxiety was diagnosed in 2014.

   ·She has always taken her medication; it had been stable but earlier this year the dosage had to be doubled.

   ·She saw a psychologist at Morayfield Psychology for 5 appointments and their letter saying that should be enough.

   ·She cannot get proof as she did not get a report back then and at the time she was still grieving her mum.

   ·She has been seeing a counsellor since 2018.

   ·She is doing the best she can.

7. While the Applicant’s general practitioner provided the diagnosis of depression and anxiety and there is evidence that the Applicant did receive treatment from a psychologist, there is no evidence before the Tribunal that her diagnosis has been supported by a corresponding diagnosis of a clinical psychologist or psychiatrist. Further, there is no evidence before the Tribunal in relation to treatment, other than medication and 5 sessions of psychological intervention/treatment that the Applicant may have received in relation to the condition or on the functional impairment that may result due to it.

8. The introduction of Table 5 of the Impairment Tables requires that in order for a mental health condition to be considered fully diagnosed it must be diagnosed by a clinical psychologist or psychiatrist.

9. Consequently, based on the evidence before it, and in the absence of a diagnosis of the Applicant’s depression and anxiety by a psychiatrist or clinical psychologist (noting that the Applicant acknowledged that she does not have and as such has not submitted a report to that effect), the Tribunal cannot be satisfied that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

   Hearing loss condition

10. In a verification of medical conditions form dated 7 March 2019, Dr Khademi reported that the Applicant had a hearing and tinnitus condition noting a hearing test in January 2018.[40] Dr Khademi confirmed her opinion in further forms and letters.[41] The Tribunal notes that the evidence before it also contained the results of a hearing test dated 10 January 2017[42] and a copy of the Applicant’s hearing services card.[43] Otherwise the evidence before the Tribunal in relation to the Applicant’s hearing loss condition is scant.

    [40]    Exhibit 1, T Documents, T26, page 123, Verification of medical conditions by Dr Zahra Khademi.

    [41]    Exhibit 1, T Documents, T32, page 139, Claim for Disability Support Pension Medical Evidence Checklist by Dr Zahra Khademi and T41, 173-174, GP Management Plan.

    [42]    Exhibit 1, T Documents, T18, page 100, Hearing check results.

    [43]    Exhibit 1, T Documents, T19, page 101, Hearing services card.

11. At Hearing, the Applicant told the Tribunal that:

    ·Her hearing loss condition was diagnosed by a specialist in Ipswich in 2007.

    ·She has been seeing Hearing Australia since 2017.

    ·She had hearing aids, but they have been stolen. She was given a pair by Hearing Australia but she is going to return them as they do not work.

    ·With her hearing aids her hearing was not 100% however it was much better and she was more confident.

    ·Her hearing has been diagnosed by an audiologist.

12. While the Applicant’s general practitioner provided a diagnosis of a hearing loss condition, there is no corroborating evidence before the Tribunal that her diagnosis has been supported by a corresponding diagnosis of an audiologist or ENT specialist. Further there is no corroborating evidence before the Tribunal in relation to treatment that the Applicant may have received in relation to the condition or of the functional impairment that may result due to it.

13. The introduction of Table 11 of the Impairment Tables requires that in order for a condition relating to hearing and other functions of the ear to be considered fully diagnosed it must be diagnosed by an appropriately qualified medical practitioner with supporting evidence from an audiologist or ENT.

14. Consequently, based on the evidence before it, and in the absence of a diagnosis of the Applicant’s hearing loss condition by an audiologist or ENT, the Tribunal cannot be satisfied that the Applicant’s hearing loss condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Asthma condition

15. In a verification of medical conditions form dated 7 March 2019, Dr Khademi reported that the Applicant had asthma that was being managed with Ventolin presently and that future treatment included Ventolin and monitoring.[44] Dr Khademi confirmed her opinion in further forms and letters.[45]

    [44]    Exhibit 1, T Documents, T26, page 123, Verification of medical conditions by Dr Zahra Khademi.

    [45]    Exhibit 1, T Documents, T32, page 139, Claim for Disability Support Pension Medical Evidence Checklist by Dr Zahra Khademi; T41, 173-174, GP Management Plan and T42, 175, Medical Certificate of Dr Zahra Khademi.

16. At Hearing, the Applicant told the Tribunal that:

    ·She uses an asthma spray only when she has to, which may be 5 or 6 days a week.

    ·Her asthma flares up with all different kinds of things.

    ·Not being able to breath is one of the scariest things ever.

17. The Tribunal accepts that the Applicant’s asthma condition was fully diagnosed during the Relevant Period based on the reports of Dr Khademi, however the medical evidence before it in regard to treatment, prognosis and any resulting functional impact is limited. As such the Tribunal cannot be satisfied that the Applicant’s hearing loss condition was fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.

    Other conditions

18. The Tribunal notes that there are references to the Applicant’s bilateral Achilles tendonitis (which appears to also include the Applicant’s complaint about spurs causing pain to her Achilles tendon), hypertension, GORD, diverticulitis, psoriasis, diabetes and fatty liver (collectively referred to as Other conditions) across a number of different medical forms and letters before it.[46] The information in relation to these Other conditions found in those medical forms and letters however is not detailed and does not provide adequate evidence in relation to prognosis, treatment or any resulting functional impairments.

    [46]    Exhibit 1, T Documents, T12, page 89, Medical Certificate of Dr Paul Bartels; T14, page 91, Report of Dr Clare Owens and Dr Paul Kubler; T22, page 114, GP Management Plan; T24, page 119, Medical Certificate of Dr Zahra Khademi; T26, page 123, Verification of medical conditions by Dr Zahra Khademi; T32, pages 138-139, Claim for Disability Support Pension Medical Evidence Checklist by Dr Zahra Khademi; T41, 173-174, GP Management Plan and T42, 175, Medical Certificate of Dr Zahra Khademi.

19. At Hearing, the Applicant told the Tribunal that:

    ·The spurs on both of her feet are piercing her Achilles tendon and cause her constant pain. This is the worst pain as she feels it with every step she takes. She experiences a stabbing pain with each step.

    ·She was told by the rheumatologist that removing spurs can sometimes be 100% worse than leaving them there.

    ·She has not sought or been offered review by an orthoperiodic surgeon in this regard.

    ·She has trouble walking around a shopping centre because of the spurs.

    ·She felt these conditions which are listed in her submissions are all fully diagnosed as she has listed them based on what the doctors have told her.

20. The Tribunal accepts that the Applicant’s Other conditions were fully diagnosed during the Relevant Period based on the forms and letters within the evidence before it and that these conditions have differing levels impact upon the Applicant’s ability to function, in particular her bilateral spurs and Achilles tendon condition. However, the Tribunal considers the medical evidence before it in regard to treatment, prognosis and any resulting functional impact is oppressively limited. As such the Tribunal cannot be satisfied that the Applicant’s Other conditions were fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for these conditions.

    Continuing Inability to Work

21. As the Tribunal has 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

22. The Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.

23. Based on the evidence before it, the Tribunal finds that while some of the Applicant’s conditions were long-standing conditions, none of her conditions could be considered permanent during the Relevant Period for the purpose of applying the Impairment Tables. The Tribunal is therefore unable to assign impairment points to the Applicant’s conditions.

24. The Tribunal finds that for the purposes of section 94(1)(b) the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.

25. Accordingly, the decision under review is affirmed.

I certify that the preceding      58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................................

Associate

Dated: 14 September 2021

Date of Hearing:	7 September 2021
Applicant:	By phone
Solicitors for the Respondent:	Ms Maleah Underhill Services Australia