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

Qiunton and Secretary, Department of Social Services (Social services second review) [2019] AATA 1725 (9 July 2019)
Division:GENERAL DIVISION
File Number(s): 2018/3602
Re:Robert Quinton
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member D R Davies
Date:9 July 2019
Place:Brisbane

The Tribunal affirms the Decision under review.
.................................[SGD]...................................
Senior Member D R Davies
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 (Active Participation for Disability Support Pension) Determination 2014 (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
Gallacher v Secretary, Department of Social Services[2015] FCA 1123
REASONS FOR DECISION
Senior Member D R Davies
9 July 2019
INTRODUCTION

The Applicant, Mr Robert Quinton (Mr Quinton) seeks a review of the decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal on 5 June 2018 (AAT1) that affirmed a decision to reject Mr Quinton’s claim for Disability Support Pension (DSP) lodged on 17 January 2017.
BACKGROUND
On 17 January 2017, Mr Quinton lodged a claim for DSP.[1]
[1] Exhibit 1, Tribunal Documents, T37 p 270.
On 27 March 2017, Mr Quinton attended a telephone assessment with a Job Capacity Assessor (JCA).[2] On review of the available medical evidence and its assessment, the JCA considered that the only conditions that could be considered fully diagnosed, fully treated and fully stabilised were Mr Quinton’s osteoarthritis in the right knee and his allergic conjunctivitis. The JCA considered that the right knee condition rated 5 points under Table 3 and the allergic conjunctivitis rated 5 points under Table 12.[3] The JCA considered that Mr Quinton had a capacity to work 15-22 hours per week within two years with intervention.[4]
[2] Exhibit 1, Tribunal Documents, T26 pp 189-198.
[3] Exhibit 1, Tribunal Documents, T26 pp 194-195.
[4] Exhibit 1, Tribunal Documents, T26 p 196.
On 20 June 2017, Mr Quinton’s claim for DSP was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.[5]
[5] Exhibit 1, Tribunal Documents, T28 p 200.
Mr Quinton sought review of that decision and on 23 January 2018 an Authorised Review Officer (ARO) affirmed the decision having agreed with the JCA’s findings.[6]
[6] Exhibit 1, Tribunal Documents, T31 p 204.
On 7 February 2018 Mr Quinton applied to AAT1 for review of the ARO’s decision.[7]
[7] Exhibit 1, Tribunal Documents, T33 p 217.
On 5 June 2018, AAT1 affirmed the decision under review[8] finding that Mr Quinton had an impairment rating of 5 points under the Impairment Tables for his allergic conjunctivitis and 5 points for his osteoarthritis of his right knee. It considered that his back pain was yet to be fully diagnosed, fully treated and fully stabilised at the date of the claim and as a consequence, no impairment rating could be considered for that condition. It also considered that the venous condition of his right leg was not fully treated and fully stabilised at the date of the claim and that no impairment points could be allocated to that condition. It found that Mr Quinton had a total impairment rating of 10 points and accordingly he did not qualify for DSP.
[8] Exhibit 1, Tribunal Documents, T2 p 3.
The evidence before the Tribunal is contained in the exhibits which were admitted by consent of the parties and which include Exhibit 1, the Tribunal Documents. Mr Quinton also appeared by telephone and gave evidence along with his submissions including his written submissions which are Exhibit 3. Mr Quinton impressed me as a truthful witness who was somewhat stoic about his various conditions.
Before I deal with the issues raised by this application. I will highlight the relevant legislative provisions.
THE LEGISLATIVE FRAMEWORK
The relevant legislation is contained in:
(a)The Social Security Act 1991 (Cth) (the Act);
(b)The Social Security (Administration) Act 1999 (Cth) (the Administration Act);
(c)The Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (the Determination); and
(d)The Social Security (Active Participation for Disability Support Pension) Determination 2014 (the POS Determination).
Section 94 of the Act prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are:
·That the person has a physical, intellectual or psychiatric impairment;
·That the person’s impairment is 20 points or more under the Impairment Tables; and
·That the person has a continuing inability to work.
The Administration Act makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim which in this case is 17 January 2017. There is, however, an exception where the person is not qualified on that date but “becomes qualified” within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[9]
[9] See ss41 and 42, Schedule 2, Part 2 of the Administration Act.
Therefore the relevant period for considering whether Mr Quinton qualified for DSP is between 17 January 2017 and 25 April 2017 (the Qualification Period).
Previous decisions of both the Tribunal and the Federal Court have emphasised that the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP and the 13 weeks which followed it. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only insofar as they are referrable to the person’s condition during the relevant period.[10]
[10] See Bobera and Secretary Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 [34]; Fanning and Secretary Department of Social Services [2014] AATA 447 [32]; and Gallacher and Secretary Department of Social Services [2015] FCA 1123 [25], [28].
The Impairment Tables are contained in the Determination, a legislative instrument made under the Act.[11]
[11] See s26(1) of the Act.
The Tables are function based, rather than diagnostic based, and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[12] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[13]
[12] See s5(2) of the Determination.
[13] See s6(1) of the Determination.
Under the rules for applying the Impairment Tables, an impairment rating can only be assigned 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 two years.[14]
[14] See s6(3) of the Determination.
In order for a condition to be considered “permanent” it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised, and more likely than not, in light of available evidence, to persist for more than two years.[15]
[15] See s6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following factors are to be considered:
·Whether there is corroborating evidence of the condition;
·What treatment or rehabilitation has occurred in relation to the condition; and
·Whether treatment is continuing or is planned in the next two years.[16]
[16] See s6(5) of the Determination.
A condition is “fully stabilised” if:
(a)Either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in a significant functional improvement to a level enabling the person to undertake work in the next two 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 two 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.[17]
[17] See s6(6) of the Determination.
“Reasonable treatment” is treatment that:
(a)Is available at a location reasonably accessible to the person;
(b)Is at a reasonable cost;
(c)Can reliably be expected to result in a substantial improvement in functional capacity;
(d)Is regularly undertaken or performed;
(e)Has a high success rate; and
(f)Carries a low risk to the person.[18]
[18] See s6(7) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Table. A rating cannot be assigned between two consecutive impairment ratings. If an impairment is considered as falling between two ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[19]
[19] See s11(1) of the Determination.
As regards to the requirement that the person have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied. In summary they are that the person must:
(a)Have actively participated in a program of support (if the person does not have a severe impairment within the meaning of s94(3B)); 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, or if the impairment does not prevent the person from undertaking a training activity, such activity is unlikely (because of the impairment) to enable him or her to do any work independently of a program of support within the next two years.
A person’s impairment is a “severe impairment” if their impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[20]
[20] See s94(3B) of the Act.
ISSUES FOR THE TRIBUNAL
A considerable amount of medical evidence has been provided and it is accepted by the Respondent that Mr Quinton suffers from a number of medical conditions and that he had impairments for the purposes of s94(1)(a) of the Act during the Qualification Period.[21]
[21] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, para 4.19.
However, the Respondent contends that Mr Quinton’s impairments do not attract a rating of 20 points or more under the Impairment Tables and that he does not satisfy s94(1)(b) of the Act and that some of the conditions are not fully treated.
The issues for me to consider are:
(a)Whether during the Qualification Period, Mr Quinton’s conditions were fully diagnosed, fully treated and fully stabilised;
(b)Whether during the Qualification Period, Mr Quinton’s impairments attracted a rating of 20 impairment points or more under the Impairment Tables; and
(c)If so, and unless one of Mr Quinton’s impairments was a severe impairment attracting a rating of 20 points or more under a single Impairment Table, whether Mr Quinton had a continuing inability to work within two years of the Qualification Period.
CONSIDERATION
Were Mr Quinton’s conditions fully diagnosed, fully treated and fully stabilised?
As previously mentioned, Mr Quinton’s medical conditions need to be assessed as at the time of the Qualification Period. Accordingly, considerable weight must be given to the medical and other evidence as at that time. Medical reports after that time are only relevant so far as they are referrable to Mr Quinton’s condition during the Qualification Period.
I will now consider Mr Quinton’s various medical conditions.
Osteoarthritis in the right knee
Mr Quinton has established osteoarthritis of the right knee which is well documented in a number of medical reports and medical certificates. The Respondent accepts that Mr Quinton’s right knee condition was fully diagnosed, fully treated and fully stabilised as at the Qualification Period and therefore can be rated under Table 3 of the Impairment Tables.[22]
[22] Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions 11 February 2019, para 4.23.
Dr McGrouther, Mr Quinton’s General Practitioner, in a report to Centrelink dated 9 October 2014[23] states that Mr Quinton has osteoarthritis of the knees with congenital high-riding patellae resulting in recurrent dislocation. There was surgery of the right knee involving wiring of the patellar ligament in 1998. He reports that Mr Quinton is unable to squat repetitively and cannot sit for long periods and may need a knee replacement in the future.
[23] Exhibit 1, Tribunal Documents, T4 pp 56-66.
A radiology report of Dr Eichler dated 7 October 2014[24] reports that there is a presumed previous avulsion of the patellar ligament. The superior wire has ruptured and there is mild elevation of the right patella. There is moderate to advanced degree of osteoarthritis in the medial compartment of the right knee along with the patellofemoral and lateral compartment. A further x-ray on 23 December 2015 by Dr Attarde[25] reports that there is significant osteoarthritis in the right knee joint especially in the patellofemoral compartment.
[24] Exhibit 1, Tribunal Documents, T6 p 87.
[25] Exhibit 1, Tribunal Documents, T23 p 163.
Mr Quinton reported to the JCA on 27 March 2017[26] that he was able to walk unaided primarily, however he occasionally uses a walking stick. He was independent with grocery shopping, using public transport and mowing. He can mow for up to 30 minutes at a time before resting.
[26] Exhibit 1, Tribunal Documents, T26 p 190.
Mr Quinton gave evidence to AAT1 in June 2018[27] that he can manage the bus to the supermarket and undertake his shopping and then he will catch a taxi home with the groceries. He undertakes his activities of daily living, household and yard chores independently and mobilises in the community. He can stand but if it is for too long he will stand with his right foot resting on his left foot. He is able to sit or walk for about 30 minutes.
[27] Exhibit 1, Tribunal Documents, T2 pp 3-12, paras 17 and 43.
Mr Quinton gave evidence to the Tribunal that he can’t run, bend or squat down and has to be careful when he walks. He tries to rest it as much as he can to put off having a knee replacement operation for as long as possible. He said that if his knee becomes unstable he uses a walking stick and a brace. He said that he can no longer mow the lawn but doesn’t need to now as he is now living in a housing commission unit. He said that he uses public transport and uses the rails at the door of the bus to help him get on and off. When he does the shopping, he uses the shopping trolley for support.
A report from Dr Gehr, Director of Orthopaedics at the Wide Bay Hospital and Health Service dated 24 February 2016[28] states that Mr Quinton has a full range of motion of the knees with some periods of instability. He says that in 1997 Mr Quinton had surgery to his right knee with a lateral capsular release and osteotomy of the tibial tubercle and medial transverse tibial tubercle and screw fixation. Subsequently, he avulsed the patella tendon from the tibia and it had to be reattached using two wires. X-rays showed advanced osteoarthritis of the knee. He thought that Mr Quinton was heading for a knee replacement and he would get Dr Salman to see Mr Quinton.
[28] Exhibit 1, Tribunal Documents, T8 p 98.
Medical certificates from Dr Rehman, Mr Quinton’s General Practitioner dated 9 September 2016[29] and 2 December 2016[30] document osteoarthritis of the knee causing a permanent limp and an inability to walk and bend the knee.
[29] Exhibit 1, Tribunal Documents, T18 p 126.
[30] Exhibit 1, Tribunal Documents, T19 p 127.
A report from Dr Salman, orthopaedic surgeon dated 12 April 2016[31] states that there is moderate osteoarthritis involving the medial and lateral compartment of the right knee. He has significant patellofemoral crepitation due to his arthritis. He is able to flex his knee to 120 degrees. Dr Salman considered that ultimately Mr Quinton will require a total knee replacement but the longer the surgery can be delayed the better. He recommended Mr Quinton try some medication and exercise to lose weight.
[31] Exhibit 1, Tribunal Documents, T12 p 108.
A further report of Dr Salman dated 7 April 2017[32] noted that Mr Quinton has been doing his exercises and taking anti-inflammatory medication as required. Dr Salman reports that Mr Quinton indicated that the pain in his knee is minimal and that he is managing well with the symptoms. Dr Salman was happy to continue with non-operative measures.
[32] Exhibit 1, Tribunal Documents, T34 p 221.
The JCA’s assessments dated 25 August 2016[33] and 27 March 2017[34] considered the knee condition to be fully diagnosed, fully treated and fully stabilised and cause a mild impairment of lower limb function.
[33] Exhibit 1, Tribunal Documents, T16 pp 112-123.
[34] Exhibit 1, Tribunal Documents, T26 pp 189-198.
The Tribunal has considered Mr Quinton’s evidence and the medical evidence as to his condition as at the Qualification Period. I prefer the evidence of the orthopaedic specialists to that of the general practitioners. The medical evidence establishes that Mr Quinton had osteoarthritis of his right knee which was being managed non-operatively at that time, although he would require a knee replacement in the future. I consider that the osteoarthritis of the right knee was fully diagnosed, fully treated and fully stabilised as at the Qualification Period.
The Tribunal is required to assess the condition using Table 3 of the Impairment Tables for the assessment of lower limb function. I consider the evidence is that at the Qualification Period, Mr Quinton experienced some difficulty walking outside, however he was able to walk a short distance to the bus stop, use public transport, do his own shopping, household chores and mowing. He was able to walk for about 30 minutes and could stand for short periods.
In view of the evidence, I consider that Mr Quinton’s functional impairment on activities requiring the use of his lower limbs under Table 3 at the Qualification Period aligns most closely with the descriptors for mild functional impairment in the Impairment Tables in that he:
(a)Has some difficulty walking to local facilities;
(b)Has some difficulty walking around the shopping mall or supermarket without a rest;
(c)He is unable to stand for more than 10 minutes.
Accordingly, I assign 5 impairment points under this Table with respect to this condition.
Allergic conjunctivitis
Mr Quinton has an established condition with his eyes of difficulties with glare sensitivity which is described as allergic conjunctivitis or blepharitis. The Respondent accepts that this condition was fully diagnosed, fully treated and fully stabilised at the Qualification Period and can therefore be rated under Table 12 – Visual Function of the Impairment Tables.

Mr Quinton told the JCA on 27 March 2017[35] that he had ongoing difficulties with his vision and irritated eyes. He said that his vision is affected by painful and sensitive eyes, particularly to light. He said that he can read street signs and the numbers displayed on public transport. He said that he may struggle with reading a newspaper due to eye sensitivity.
[35] Exhibit 1, Tribunal Documents, T26 p 192.
Mr Quinton gave evidence to AAT1[36] that he has difficulties with glare sensitivity and his vision fluctuates on a daily basis. He can spend two hours maximum in the light and often needs to wear sunglasses. He will then come inside and lie in the dark to recover. His eyes get itchy and tear up. The sunlight is a problem when he mows the lawn. Mr Quentin says that he wears reading glasses and has problems looking at his PC which he runs through a 66 inch television to magnify the pages. He said he can’t look at a page for too long.
[36] Exhibit 1, Tribunal Documents, T2 pp 3-12, paras 33 and 34.
Mr Quinton in his evidence to the Tribunal confirmed what he had told the JCA and AAT1. He also said that he spends time on his PC playing games or looking at Facebook. TV and screen time is limited by his eye condition and difficulty concentrating.
In his statement to the Tribunal dated 28 February 2019[37] Mr Quinton says that “it is not what I can or cannot see, it is to do with light and glare”. The allergic conjunctivitis which he has is unpredictable and changes daily. He uses various types of eye drops to settle his eyes if they go dry or become itchy. He said that most times it happens when he spends too much time outside which is why he limits himself to two hours to do the things he needs to get done and then get home.
[37] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions 28 February 2019, p 2.
Dr Rehman, in the medical details of Mr Quinton’s DSP claim form dated 17 January 2017[38] states that Mr Quinton has blephero conjunctivitis in both eyes which is treated with oral anti-histamine and Opticrom and Hylo Forte eye drops.
[38] Exhibit 1, Tribunal Documents, T21 p 155.
In a medical certificate dated 2 December 2016[39] Dr Rehman reported that Mr Quinton’s symptoms were “painful, itchy, swollen eyes”.
[39] Exhibit 1, Tribunal Documents, T19 p 127.
Ms Raelene Christ, Optometrist, in a report dated 24 August 2016[40] stated that Mr Quinton has been a patient since September 2015 when he presented with glare sensitivity. His main issues were ongoing, intermittent blur associated with conjunctivitis which is of an allergic basis. He is managing with drops but does have flare ups, creating visual difficulties when this occurs. He is being seen on a four-monthly basis.
[40] Exhibit 1, Tribunal Documents, T15 p 111.
In her report of 6 December 2016[41] Ms Christ says that over the past couple of months, Mr Quinton has managed to reduce his reliance on some of the eye drops but since moving house, even though only a short distance away, he appears to have had a recurrence of the allergic symptoms and on that day presented with red, watery eyes, quite glare sensitive, with excessive blinking. Vision is excellent in each eye with normal pressures, early cataract which is not troubling him in any way and stable optic nerve coupling. He will continue with the eye drops and is to try oral anti-histamines to generally settle his allergic symptoms. Mr Christ’s report of 15 August 2017[42] states that when seen he was having trouble with a flare up of his problems. He was having difficulty obtaining Opticrom drops and was using other drops which did not seem to work quite as well for him. His vision was stable and his pressures were excellent. He wants to try a short course of Flarex to try to settle the current episode and to continue with the oral anti-histamine and other drops.
[41] Exhibit 1, Tribunal Documents, T23 p 178.
[42] Exhibit 1, Tribunal Documents, T34 p 223.
A report from Dr Blanc, Ophthalmologist dated 29 February 2016[43] states that Mr Quinton has heightened sensitivity around his eyes. He was difficult to examine. Dr Blanc said that it is a difficult thing to treat. It was almost impossible to get a good look at his optic nerves because of his photophobia but he got the impression that the neuro-retinal rims of the optic nerves look healthy. He prescribed further treatment with various eye drops.
[43] Exhibit 1, Tribunal Documents, T23 p 171.
Dr Blanc in his report dated 16 May 2018[44] says that he has never been able to work out why he has such severe symptoms but he is sure that they are significant and real for him. Dr Blanc says Mr Quinton told him that he “has good days and bad days, but generally he is unable to tolerate bright conditions for more than two hours (on a good day)”. Dr Blanc said that his eyes look healthy but he is very difficult to examine because of his glare sensitivity. He concluded by saying that he “cannot find any significant pathology but I am sure that his symptoms are real”.
[44] Exhibit 1, Tribunal Documents, T35 p 237.
Visual function impairments are assessed under Table 12 of the Impairment Tables. That Table requires that diagnosis of the condition must be made by an appropriately qualified medical practitioner with supporting evidence from an ophthalmologist. I have considered the descriptors in Table 12 for the levels of visual functional impairment and I find that at the Qualification Period Mr Quinton’s visual functional impairment aligns most closely with the descriptors for mild functional impairment in that:
·He could perform most day to day activities involving vision and has mild difficulties seeing things at a distance or close up; and
·He had some difficulty seeing the fine print in newspapers;
·He had some difficulty seeing street signs or bus numbers but can still travel around the community and use public transport without assistance;
·He experienced some discomfort when performing day to day activities involving the eyes, with watering of the eyes and difficulty tolerating bright lights and sunlight.
I do not consider that the descriptors for moderate or severe visual functional impairment were met as at the Qualification Period because it is not his vision which is limited and he does not require vision aids or assistive devices other than spectacles and contact lenses for some tasks. He is also able to undertake tasks in the community and to use public transport when wearing sunglasses.
Accordingly, I assign 5 impairment points under this Table with respect to this condition.
Back pain condition
Mr Quinton gave evidence to the Tribunal that he has had pain in his shoulder blades and back for over 30 years. He said that he last saw a specialist for this is 1980 and has not had any physiotherapy for it since 1998. He said that when he first injured it he saw a chiropractor three times for treatment but it did not help and made it worse. He said that he can’t lift his arms up or over his head and can't bend, twist or turn. He said that he has lived with it for years and has adapted ways to work around it. He said no one has been able to explain the cause of the pain between his shoulder blades. He said that he takes Panadeine Forte when he needs to.
Dr McGrouther, in the Centrelink medical report dated 9 October 2014[45] said that the back pain started in 1988 when Mr Quinton was working in a factory making truck wheel rims. He gives the diagnosis of degenerative changes, spondylosis deformans of lumbar and thoracic spine with mild scoliosis.
[45] Exhibit 1, Tribunal Documents, T4 pp 56-66.
Dr Rehman has given a number of medical certificates dated respectively 4 March 2016, 1 April 2016, 2 June 2016 9 September 2016, 2 December 2016 and 3 March 2017[46] which document disc prolapse of the lumbar spine causing back pain, stiffness and loss of balance. In answers which he provided to Legal Aid questions on 20 April 2018[47] Dr Rehman stated that it is degenerative and muscular pain. He stated that Mr Quinton has been getting acupuncture and pain killers as needed to get relief. He said that there is always the possibility of improvement but he was not sure to what extent.
[46] Exhibit 1, Tribunal Documents, T9, T11, T13, T18, T19 and T25.
[47] Exhibit 1, Tribunal Documents, T35 p 229.
There are a number of radiological reports as to X-rays and MRIs of Mr Quinton’s spine. An X-ray of the thoracic and lumbar spine on 7 October 2014 by Dr Eichler[48] reported that there was moderately increased thoracic kyphosis due to mild wedging of the inferior thoracic vertebrae. There was no acute vertebral fracture and only mild spondylosis deformans from T5-T12 vertebrae.
[48] Exhibit 1, Tribunal Documents, T6 p 87.
An MRI report dated 2 November 2015[49] by Dr Maheshwari noted there was mild degeneration of the lumbar spine and no canal or foraminal stenosis.
[49] Exhibit 1, Tribunal Documents, T23 p 169.
Dr Taylor reported on a CT of the cervical and thoracic spine on 11 April 2018[50] that minimal degenerative change only was noted in the apophyseal joints and no cause otherwise for cervical and upper thoracic pain was evident.
[50] Exhibit 1, Tribunal Documents, T35 p 234.
There are no reports from specialists other than radiologists relating to this condition.
I note that in relation to a previous claim by Mr Quinton for DSP made in July 2015, the Social Services and Child Support Division of the AAT in a decision dated 14 March 2016[51] considered the low back condition to be fully diagnosed, fully treated and fully stabilised and warranted an assessment of moderate impairment with the rating of 10 points. However, that decision related to a previous claim and in any case that decision is not binding on this Tribunal.
[51] Exhibit 1, Tribunal Documents, T10 p 101.
The JCA report dated 25 August 2016[52] documented the spinal condition as fully diagnosed, fully treated and fully stabilised and as causing a moderate impairment of function.
[52] Exhibit 1, Tribunal Documents, T16 pp 112-123.
The JCA report dated 27 March 2017[53] considered that for the purposes of that assessment the condition can be considered permanent and fully diagnosed, but that in the absence of evidence demonstrating that all reasonable treatment has been undertaken to date, the condition is not considered fully treated and fully stabilised.
[53] Exhibit 1, Tribunal Documents, T26 pp 189-198.
Whilst this back pain condition seems to be long standing, the radiological evidence in relation to the cervical and thoracic spine is that there is only minimal degenerative change and there is otherwise no cause evident for cervical and upper thoracic spine pain. The radiological evidence does not support the diagnosis which Dr Rehman made of disc prolapse. Most recently, Dr Rehman thought that it was degenerative and muscular pain and there was always the possibility of improvement.
I note that in his evidence, Mr Quinton did not consider the condition to be of as much concern to him as his knee and eye conditions as a cause of his impairment. His submission to the Tribunal of 28 February 2019[54] makes no reference at all to this condition.
[54] Exhibit 3, Applicant’s Statement of Issues, Facts and Contentions 28 February 2019.
In the absence of any evidence of a medical specialist in relation to this condition and the absence of any assessment as at the Qualification Period as to whether there were any reasonable treatments available which might impact on Mr Quinton’s back pain condition, I am not satisfied that Mr Quinton’s back pain condition was fully diagnosed, fully treated and fully stabilised as at the Qualification Period. Accordingly, no impairment rating can be considered for this condition.
Right leg venous insufficiency
Dr McGrouther in the Centrelink medical report dated 18 August 2015[55] reported that venous insufficiency in the right leg was first diagnosed in 2013. He reported that Mr Quinton had never had treatment for it and may benefit from wearing a compression stocking or venous surgery.
[55] Exhibit 1, Tribunal Documents, T6 pp 75-88.
On 24 January 2013 Dr Coombe reported on an ultrasound of Mr Quinton’s right leg veins[56] that there were a number of veins which were incompetent.
[56] Exhibit 1, Tribunal Documents, T6 p 83.
On 23 December 2015, Dr Attarde[57] reported on another ultrasound of Mr Quinton’s right leg veins with the conclusion that there is incompetence in the superficial femoral vein, long saphenous vein, short saphenous vein and saphenopopliteal junction with associated varicosities.
[57] Exhibit 1, Tribunal Documents, T23 p 163.
The Employment Services Report dated 29 January 2018[58] notes that Mr Quinton said that he had trialled compression stockings as recommended by Dr McGrouther but they exacerbated his knee condition. He also said that he has had no symptoms in recent times and does not consider this condition to be a concern for him at the present time. He said as long as he is not on his feet for more than 30 minutes this does not cause him a problem.
[58] Exhibit 1, Tribunal Documents, T32 p 213.
Mr Quinton gave evidence to the Tribunal that he has got the swelling out of his leg through acupuncture treatment which seems to work. He said that the swelling has mostly gone down and as long as he looks after it, it is fine. He said that as long as he is not on his feet for more than 30 minutes, especially in hot weather, he is able to keep the swelling under control.
The JCA’s assessments dated 8 September 2015[59], 25 August 2016[60] and 27 March 2017[61] considered the venous condition as yet to be fully treated and fully stabilised.
[59] Exhibit 1, Tribunal Documents, T7 pp 89-97.
[60] Exhibit 1, Tribunal Documents, T16 pp 112-123.
[61] Exhibit 1, Tribunal Documents, T26 pp 189-198.
I have considered Mr Quinton’s evidence and the available medical evidence. I am not satisfied that as at the Qualification Period, the venous condition of the right leg was fully treated and fully stabilised. Accordingly, no impairment points may be allocated to this condition under the Impairment Tables.
Depression
A medical details form apparently completed by Dr Rehman which is undated but scanned on 25 July 2016[62] lists as an illness “Major depression due to his health”. In the section of that form relating to treatment, there is the notation “counselling for Depression and TCA (Endep) SSRi been tried”. I assume that the reference to ‘TCA” is to tricyclic anti-depressant medication and “SSRi” is to selective serotonin reuptake inhibitors, another type of anti-depressant medication. A health summary dated 4 February 2017[63] lists Mr Quinton’s past medical history. It includes the note “2014 depression – reactive”. There is no reference to a depressive condition in any of the reports or medical certificates from Mr Quinton’s general practitioners who have been treating him for many years apart from the one reference in the medical details form of Dr Rehman to which I have referred.
[62] Exhibit 9, Medical Evidence form – GP Dr Rehman undated.
[63] Exhibit 1, Tribunal Documents, T23 p 180.
The Medical Action Plan of Back2Work of Ms Loughton, Psychologist, and Dr Slack-Smith, Clinical Psychologist dated 21 November 2018[64] refers to Mr Quinton having the diagnosis of a major depressive disorder made by Dr Rehman in 2015. Ms Loughton describes the condition as being of moderate severity. She says that Mr Quinton reports having struggled with depressive symptoms over the last 3-4 years and his symptoms have worsened following ongoing difficulties with an application to Centrelink for DSP. He reported symptoms including feelings of sadness, hopelessness and feeling worthless. He said he had diminished ability to concentrate, was indecisive, lethargic and had difficulty sleeping and a reduction in social functioning. He said that he had an inability to focus on complex tasks for more than 5-10 minutes. Ms Loughton states that he is not currently on any medication to improve mood. She says that it was agreed that Mr Quinton would make environmental changes within his life to improve mood rather than take prescribed medication.
[64] Exhibit 5, Back2Work Medical Action Plan 21 November 2018.
Ms Loughton concludes that Mr Quinton understands anti-depressant medication may assist with his current depressive symptoms. However he doesn’t like taking medication and following discussions with his treating healthcare providers he is being supported to try alternative means to manage his depressive illness rather than take prescribed medication.
This report of November 2018 is the only evidence relating to Mr Quinton having a depressive condition, apart from the medical details form to which I have referred, and there is no reference to it in any of the other medical reports in evidence. Accordingly, I am not satisfied that as at the Qualification Period Mr Quinton’s depressive condition was fully diagnosed, fully treated and fully stabilised. Accordingly, no impairment points may be allocated for this condition under the Impairment Tables.
OVERALL IMPAIRMENT RATING
In accordance with my findings, Mr Quinton has a total impairment rating of 10 points under the Impairment Tables and therefore does not satisfy s94(1)(b) of the Act.
CONTINUING INABILITY TO WORK
In view of the conclusion I have reached above, it is not necessary to consider whether Mr Quinton met the third requirement for DSP, namely that he had a continuing inability to work.
CONCLUSION
I find that Mr Quinton was not qualified for DSP in respect of his claim of 17 January 2017. The decision under review is affirmed.

I certify that the preceding 85 (eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D R Davies

............................[SGD].............................
Associate
Dated: 9 July 2019

Date of hearing: 12 June 2019

Applicant: By telephone

Advocate for the Respondent:
Ms Daphne Jones-Bolla

Solicitors for the Respondent: Sparke Helmore

[2019] AATA 1725

9 July 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	12 June 2019
Applicant:	By telephone
Advocate for the Respondent:	Ms Daphne Jones-Bolla
Solicitors for the Respondent:	Sparke Helmore