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

[2017] AATA 1744

Reeve and Secretary, Department of Social Services (Social services second review) [2017] AATA 1744 (17 October 2017)

Division:GENERAL DIVISION

File Number:           2016/4979

Re:Paul Reeve

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:17 October 2017

Place:Brisbane

The decision under review is affirmed.

.........................[SGD].................................

Senior Member T. Tavoularis

SOCIAL SECURITY – DISABILITY SUPPORT PENSION – whether Applicant had conditions that were fully diagnosed, treated and stabilised (“FDTS”) during relevant period –– hypertension FDTS but does not have functional impact – reasonable treatments for spinal condition had not been exhausted – spinal (neck) condition considered not fully treated and stabilised – other conditions not FDTS - Applicant did not have any impairment points – decision under review is affirmed.

Legislation
Social Security Act 1991 (Cth), ss 26, 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, Schedule 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130

Secondary Materials
The Guide to Social Security Law

REASONS FOR DECISION

Senior Member T. Tavoularis

17 October 2017

INTRODUCTION

1. On 7 September 2015, Mr Paul James Reeve (“the Applicant”) lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as “Spinal injury – neck; limb injury – right elbow; chest injury – muscular (heart).”[1]

   [1] Exhibit 9, “T-documents”, T16, p 53.

2. The decision under review is a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (“AAT1”) on 31 August 2016, which affirmed the Department’s decision to reject the Applicant’s claim for DSP.

3. The issue before the Tribunal is whether the Applicant qualified for DSP at the date of his claim, 7 September 2015, or within 13 weeks thereafter, that being up until
   7 December 2015. 

   HISTORY OF THE MATTER

4. On 7 September 2015, the Applicant lodged a claim for DSP with Centrelink in writing,[2] including a pro-forma medical certificate by his local medical officer Dr Daniel Joubert dated 27 July 2015. In that Certificate Dr Joubert listed the Applicant’s conditions as: ‘Chronic neck pain.’[3]

   [2] I note that the claim was signed and dated 7 August 2015 (see T16, p 68) but it was not received by Centrelink until 7 September 2015.

   [3] See Exhibit 9, T15, p 40.

5. To support his claim for DSP the Applicant also provided the following within the relevant period: a referral letter by Dr Joubert dated 19 August 2015, a letter from Darling Downs Hospital and Health Services (“DDHHS”) dated 31 August 2015, a letter from Michael Conroy (Physiotherapist with DDHHS) dated 14 October 2015, a letter from Dr Joubert to Centrelink dated 28 October 2015, another pro-forma Medical Certificate by Dr Joubert dated 9 November 2015, and a letter from Jason Byrnes (APA Musculoskeletal Physiotherapist with DDHHS) dated 2 December 2015.   

6. On 3 December 2015, the Applicant attended a face-to-face assessment with a Job Capacity Assessor (“JCA”) in Toowoomba and supplied a further list of medical issues. The JCA explored each of his asserted conditions and subsequently produced a report dated 15 December 2015.[4] The JCA assessed the Applicant’s conditions as follows:

   [4] Exhibit 9, T27, pp 88 - 96.

   a.    Neck Disorder - was considered permanent and fully diagnosed, but not fully treated and stabilised. Therefore no impairment points could be assigned.

   b.    Arthritis – Other (arthritis of lower back, both shoulders and both elbows) – the conditions were based on the Applicant’s self-reporting only and were not supported by current medical evidence. Therefore it was not considered fully diagnosed, treated and stabilised and no impairment points could be allocated.

   c.    Musculo-skeletal disorder (congenital jaw condition) – was verified by medical evidence but not fully diagnosed, treated or stabilised. Therefore no impairment points could be assigned.

   d.    Hearing Loss – Partial – this condition was based on self-reporting only and was not supported by audiology tests so could not be considered fully diagnosed, treated and stabilised. Therefore no impairment points could be assigned.

   e.    Low Vision – Both eyes - this condition was based on self-reporting only and was not supported by optometric tests so could not be considered fully diagnosed, treated and stabilised. Therefore no impairment points could be assigned.

   f.   Hernia and Reproductive Problem – Other – were also self-reported and not verified by medical evidence. Therefore no impairment points could be assigned.

   g.    Circulatory System – Other (eg. Vasculitis)  - this condition was considered permanent and fully diagnosed but not fully treated and stabilised. Therefore no impairment points could be assigned.

   h.    Hypertension - this condition was verified by medical evidence, fully diagnosed, treated and stabilised but was assigned an impairment rating of nil points because it had no functional impact on activities requiring physical exertion or stamina.

   i.   Myopathy – Other - this condition was also based on self-reporting and was not considered fully diagnosed, treated or stabilised. Therefore no impairment points could be assigned.

   The total impairment rating recommended by the JCA for all reported conditions was nil points.

   Additionally, the Applicant’s Baseline Work Capacity was assessed by the JCA as 15-22 hours per week with a predicted capacity of 23-29 hours per week within 2 years with intervention.

7. On 16 December 2015, the Department wrote to the Applicant advising him that his application for DSP had been rejected on the basis he did not have a rating of 20 or more impairment points.[5]

   [5] See Exhibit 9, T29, p 98.

8. The Applicant requested that Centrelink internally review that decision.

9. On 11 April 2016 two new JCA assessors examined the file following receipt of further medical evidence from the Applicant. A second JCA report was produced on 13 April 2016. Their findings were consistent with the findings of the initial JCA report as summarised above but also included a shoulder and upper arm condition and migraine. Both conditions were verified by medical evidence but were not fully diagnosed, treated and stabilised because there had been no specialist assessments. Consequently no impairment rating could be assigned.[6] 

   [6] See Exhibit 9, T40, pp 110 – 122.

10. On 6 May 2016 an Authorized Review Officer (“ARO”) found Centrelink’s decision to refuse DSP was correct.[7] The ARO, upon review of the JCA reports and additional other relevant evidence provided to the Department, made the following findings of fact:

    [7] See Exhibit 9, T42, pp 124 – 131.

    “Findings of Fact

    After careful consideration of the evidence, I have made these key findings:

    ·     You lodged a new claim for Disability Support Pension on 7 September 2015.

    ·     Your claim was rejected on 16 October 2015 as you failed to reply to correspondence.

    ·     You lodged medical evidence in order to have your case reassessed and were referred for a Job Capacity assessment on 31 October 2015.

    ·     You attended a Job Capacity Assessment on 3 December 2015.

    ·     Your claim was rejected on 16 December 2015 as you were not assigned an impairment rating of 20 points or more.

    ·     You lodged additional medical evidence and requested an internal review of this decision on 18 January 2016.

    ·     A second Job Capacity Assessment was conducted as a file assessment on 13 April 2016 however there was no change to the outcome of your claim.

    ·     Your case was referred to the Authorised Review Officer (ARO) level on 14 April 2016.

    ·     You have the following permanent condition: hypertension.

    ·     Your conditions of chronic neck pain, back arthritis, right shoulder and elbow pain, congenital jaw condition, industrial deafness, visual impairment, hernia, testicular issues, heart muscle tear, hyperlipidaemia and migraine are not accepted as being permanent* for Disability Support Pension purposes as they have not been fully diagnosed, treated and stabilised.

    ·     Your total impairment rating is 0 points.

    ·     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.”[8]

    [8] Exhibit 9, T42, pp 125-126.

11. On 19 May 2016, the Applicant applied for review to the AAT1.

12. On 31 August 2016, at first review, the AAT1 affirmed the decision under review and essentially agreed with the ARO’s findings. The AAT1 also assessed the Applicant as having a total impairment rating of nil points.[9]

    [9] Exhibit 9, T2, pp 3-7.

13. On 20 September 2016, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (“this Tribunal”).[10]

    [10] See Exhibit 9, T1, pp 1-2.

14. The Applicant has provided additional medical evidence for the purpose of this Tribunal’s review, including reports from: Dr David Walker (Briz Brain & Spine), Dr Sunethra Samarakoon (Metro North Hospital and Health Service) and Dr Joubert (his local medical officer).[11]

    [11] See Exhibits 3, 4, 5, and 6. 

    LEGISLATIVE FRAMEWORK

15. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.

16. The Social Security (Administration) Act 1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant impairment ratings are to be determined as at the date of claim (in this case, 7 September 2015). 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.[12]  Therefore, the relevant period for considering whether the Applicant qualified for DSP is between 7 September 2015 and 7 December 2015 (“the relevant period”).

    [12] See ss 41 and 42, and cl 3 and cl 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).

17. It is well established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition and thus assessment of attributable impairment points must be undertaken as at the relevant period.  This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]:

    “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 subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues).  This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal twelve or more months after the initial DSP application was refused.  In  many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors.  If a medical condition has progressed since the time of the original DSP application, then it is up to the Applicant to make a new DSP application.  It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”. 

    [my underlining]

18. The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“the Determination”), a legislative instrument made under the Act.[13] 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.[14]  The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[15]

    [13] See s 26(1) of the Act.

    [14] See s 5(2) of the Determination.

    [15] See s 6(1) of the Determination.

19. 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.[16] 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.[17]

    [16] See s 6(3) of the Determination.

    [17] See s 6(4) of the Determination.

20. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts 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.[18]

    [18] See s 6(5) of the Determination.

21. A condition is “fully stabilised” if:

    a)    either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next two years; 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.[19]

    [19] See s 6(6) of the Determination.

22. “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.[20]

    [20] See s 6(7) of the Determination.

23. 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.  A rating cannot be assigned in excess of the maximum rating specified in each Table.[21]

    [21] See s 11(1) of the Determination.

24. In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in s 94(2) of the Act need to be satisfied.

    ISSUES FOR THE TRIBUNAL

25. The issues for me to consider are:

    a)whether, during the relevant period, the Applicant had a physical, intellectual or psychiatric condition(s);

    b)whether those conditions were fully diagnosed, treated and stabilised, and if so whether those conditions warranted an impairment rating of 20 points or more under the Impairment Tables; and

    c)whether the Applicant had a continuing inability to work.

    CONSIDERATION

    Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?

26. The Respondent accepts that the Applicant suffered from a number of conditions during the relevant period. Therefore section 94(1)(a) of the Act is satisfied.[22] However, the Respondent contends that the Applicant’s only impairment that was fully diagnosed, treated and stabilised during the relevant period was hypertension and the appropriate rating for that condition under Table 1 is nil points. Further, the Respondent contends that because the Applicant’s conditions did not attract a rating of 20 points or more under the Impairment Tables, s 94(1)(b) of the Act is not satisfied.[23]

    [22] See Exhibit 7, Secretary’s Statement of Issues, Facts and Contentions (“SFIC”), at [32].

    [23] Ibid at [33].

27. I accept that the Applicant had an impairment(s) for the purpose of s 94(1)(a) of the Act. I propose to deal with the calculation of any impairment points by reference to the various medical conditions propounded by the Applicant at the hearing.

    Hypertension – Table 1 – Functions requiring Physical Exertion and Stamina

28. There is a concession from the Respondent that this condition was fully diagnosed, treated and stabilised during the qualification period.[24]

    [24] Ibid at [36].

29. The initial difficulty for the Applicant with regard to this impairment arises from the comments of his local medical officer (Dr Joubert) on 14 December 2015. Dr Joubert confirmed the diagnosis of hypertension, summarised the prescribed medication and otherwise noted that the Applicant’s blood pressure was “…now controlled within limits required.” The further view of Dr Joubert was that provided the Applicant adheres to his regime of prescribed medication “… he should not have any symptoms.”[25]

    [25] Exhibit 9, T26, p 87.

30. I therefore have difficulty in identifying any functional impact deriving from this condition relating as it does to activities requiring physical exertion or stamina. There seems little or no doubt that with reference to the relevant Impairment Table, being Table 1, the Applicant: (a) is able to undertake exercise appropriate to his age for at least 30 minutes at a time; and (b) has no difficulty completing physically active tasks around his home and community.

31. In both oral evidence that he gave at the hearing and in written evidence submitted prior to the hearing,[26] the Applicant spoke of persistent “nerve pain that goes up into my brain” with resulting headaches. He spoke of having “no quality of life”. Be that as it may, he did frankly tell the hearing that, for the moment, he does manage to live independently and can attend to most if not all of the daily requirements of life on his own. He spoke of being able to cook for himself, to shower himself, and use the toilet on his own, but that looking after himself on a daily basis in this way “is a battle”.

    [26] See Exhibit 2, Statement of the Applicant dated 27 July 2017.

32. Having regard to the totality of his evidence in relation to this hypertension condition, I was not able to glean anything by way of convincing evidence that he is unable to undertake age appropriate exercise for at least 30 minutes at a time. I base this finding on the abovementioned comments of Dr Joubert which clearly demonstrate that with the aid of a properly followed regime of medication, the symptoms of this condition should not be apparent.

33. Similarly, the Applicant’s frank and honest evidence about being able to independently support himself on a day-to-day basis cannot lead to a finding of him having any difficulty around completing active tasks around his home and within his community.

1. Accordingly, I consider this hypertension condition does not cause any functional impact on the Applicant’s functions requiring physical exertion or stamina and the impairment rating must therefore be nil.

   Spinal Condition (Neck pain and headaches) – Table 4 – Spinal Function or Table 1

2. The primary focus of contentions put on behalf of the Applicant – in terms of identification of an impairment for allocation of impairment points is concerned - seems to be his neck pain and headaches. He asserted they were permanent and the symptoms were fully diagnosed, treated and stabilised during the relevant period.

3. The further contention from the Applicant seems to be that the functional impact of these combined conditions “warrant an allocation of at least 20 points on impairment table 1.”[27]

   [27] See Exhibit 1, Applicant’s SFIC, at [17].

4. The Respondent’s contention is that the spinal condition causing the neck pain and the headaches was a condition that was fully diagnosed, but not fully treated and stabilised during the relevant period.

5. The Applicant has experienced a somewhat unfortunate and unlucky history in relation to this asserted condition. He sought and underwent surgery for an anterior cervical discectomy with a fusion at C4-C5 and C5-C6. This surgery was performed in December 2013 in Thailand. It seemed the surgery was successful because there was an immediate improvement in his symptoms.

6. The unlucky aspect for this Applicant is that he suffered a recurrence of his symptoms due to two motor vehicle incidents in which he was subsequently involved. First, in about December 2013 (shortly after the abovementioned surgery in Thailand), he suffered a whiplash injury as a result of a bus accident. Then at the end of 2014, he was involved in another motor vehicle accident and “… sustained whiplash injury that aggravated his symptoms even more.”[28]

   [28] See Exhibit 9, T21, p 76.

7. This aggravation of the symptoms caused Dr Joubert to refer the Applicant to a neurosurgeon, namely Dr David Walker, for his opinion and to assist with management of the Applicant’s chronic neck pain. In his referral, Dr Joubert told Dr Walker that the chronic neck pain was “caused by degenerative discs and osteophytes as seen on CT scan.”[29]

   [29] See Exhibit 9, T8, p 30.

8. Upon initial review of the Applicant, Dr Walker noted both the nature and history of the condition as well as the effect of the bus accident shortly after the surgery in Thailand. Dr Walker reviewed a CT scan and, inter alia, thought it showed “nothing untoward.” Dr Walker noted degenerative change in the imaging but was of the view that “… further investigation is needed.” He organised an MRI of the Applicant’s cervical spine and his brain. He also arranged for a CT-SPECT bone scan.[30]

   [30] See Exhibit 9, T9, p 31.

9. There followed some non-surgical review and treatment of the Applicant. This involved referral to an Orthopaedic Physiotherapy Screening Clinic. The purpose of this referral was to ascertain whether, in the view of a Senior Musculoskeletal Physiotherapist, a course of non-surgical management under the care of a multi-disciplinary team would be appropriate for the Applicant’s condition. If the Applicant failed to respond to such multi-disciplinary and non-surgical management, then he would have been referred to an orthopaedic specialist for further assessment and likely placement on an orthopaedic waiting list.[31]

   [31] See Exhibit 9, T19, p 74.

10. The Musculoskeletal Physiotherapist, Mr Jason Byrnes, was of the view that the Applicant was not following a regular analgesic regime and that he had declined treatment at a persistent pain clinic due to the cost of such treatment. Be that as it may, Mr Byrnes told Dr Joubert that “I have strongly recommended that [the Applicant] discuss with you referral to a persistent pain clinic. He should also be referred to a neurologist for assessment of his atypical headache presentation and memory impairment.”[32] 

    [32] Exhibit 9, T23, p 79.

11. This theme of intended future treatment and management was reported by Dr Joubert to the first JCA assessor in December 2015. Dr Joubert advised that he had referred the Applicant to see an Orthopaedic specialist, namely Dr Lou Velour, in January 2016. The JCA noted: “Future Treatment: Dr Joubert further advised during phone discussion on 15.12.15, Dr Velour to have a case discussion with Dr Zeller (Orthopaedic specialist) to determine whether there is further orthopaedic management needed (e.g. nerve ablation to assist with pain symptoms).”[33]

    [33] See Exhibit 9, T26, p 87 and T27, p 89.

12. Following discussions between Mr Byrnes and Dr Zeller, Mr Byrnes wrote to Dr Joubert on 15 December 2015 and, in a concise recommendation for future management and treatment of this condition, made the following recommendations (with the support of Dr Zeller):

    a.    Neurology referral recommended for assessment of [the Applicant’s] headache symptoms and reported memory impairment;

    b.    Persistent pain clinic referral recommended for opinion on managing [the Applicant’s] persistent neck pain;

    c.    At this stage, there is no indication for surgical management of [the Applicant’s] presenting condition but  repeat assessment in the OPSC is recommended in three months to ensure there is no involving neurological signs;

    …

    d.     Physiotherapy and psychological appointments for assistance with pain management have been offered, but at this stage [the Applicant] has declined to take me up on this … [34]

    [34] See Exhibit 9, T28, p 97.

13. Dr Walker joined the chorus of recommending ongoing non-surgical therapeutic treatment, for the management and control of this condition. In his report of 18 January 2016 Dr Walker tells Dr Joubert: “There is nothing that surgery can offer here…. I cannot help this man, unfortunately. His prognosis seems guarded from a chronic pain point of view. Obviously, he needs to be seen at a pain clinic.”[35]

    [35] See Exhibit 9, T34, p 104.

14. Dr Sunethra Samarakoon is the Senior Registrar in Pain Medicine at the Royal Brisbane and Women’s Hospital Multidisciplinary Pain Centre. In her medical report of 16 November 2016 Dr Samarakoon noted the Applicant’s neurosurgical treatment history by Doctors Walker and Zeller. The recommendations made after a consultation with the Applicant, Dr Clubb and Dr Samarakoon were as follows:

    i.“We would recommend to continue his current medication regime as it is helping in the control of his pain.

    ii.Unfortunately his chronic pain status is quite complicated with disability perception during the discussion he had with Dr Clubb and myself it was revealed that Mr Reeve’s main concern during the attendance to our clinic today was to access and increase the government support and he was reluctant to undergo any further investigations or MRI (due to  of claustrophobia).

    iii.Unfortunately there would be very minimal support that can be offered in this clinic.”[36]

    [36] See Annexure to Exhibit 7, letter from Dr Samarakoon to Dr Joubert dated 16 November 2016.

15. As is self-evident, the respective reports and findings of Dr Walker, from 18 January 2016, and Dr Samarakoon from 16 November 2016, both are outside the relevant period. Although these reports cannot, prima facie, be taken into account for present purposes, they nevertheless evince a position that further treatment options were still being contemplated at the time of the claim and during the relevant period.

16. The primary contention made on behalf of the Applicant with specific reference to whether this condition is fully treated and stabilised derives from the Full Federal Court authority of Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130. The hearing was referred to the following passage from the judgement of the learned appeal court judges:

    “An applicant for benefit should present with a properly prepared application supported by a treating doctor. His honour observed that it did not follow that an applicant must foresee potential difficulties and obtain specialist advice and treatment before making a claim. The decision maker was entitled to make its own investigation of the claim and to form a view adverse to the claimant based on that investigation. But that was a very different thing from the decision maker rejecting a claim because of speculation that a hypothetical third party might come to an adverse opinion.”[37]

    [37] Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 at [30] per French, Tamberlin and Rares JJ.

17. I respectfully agree with the learned Appeal Court Judges. The difficulty for the Applicant, however, is that there is no medical evidence before me to assist with my investigation of the claim so that I can form a view as to whether or not the treatment and stabilisation process for this condition has been taken as far as it can go.

18. The contention put on behalf of the Applicant is correct: an analysis of

    “fully diagnosed, treated and stabilised does not require that an individual exhaust all possible treatment options, before submitting a claim or that upon having submitted a claim, that they thereafter cease all enquiries which may lead to an improvement in their condition.”[38]

    However, the critical point here is not that the Applicant has exhausted all reasonable treatment options. Rather and to the contrary, treatment options – primarily in the form of pain management and non-surgical therapies – have been strongly recommended to him and he has not submitted to them. In other words, those treatment options remain live and, in circumstances where they have not been administered, one cannot form a view as to the finality or otherwise that the condition is fully treated and stabilised.

    [38] See Exhibit 1, Applicant’s SFIC, at [29].

19. Put another way, there is no medical evidence adduced by this Applicant to indicate or confirm that: (1) remaining non-surgical therapies have been taken as far as they can go, and/or (2) he will not get any better even if those non-surgical therapies were administered.

20. The state of the medical evidence is such that I cannot conclusively find that this claimed condition is fully treated and stabilised. He has not undertaken the reasonable treatment for this impairment or shown that any further treatment is unlikely to result in significant functional improvement to a level enabling him to undertake work in the next two years. In the alternative, in circumstances where he has declined treatment, there is no compelling evidence to suggest that the recommended treatment was not reasonable or would not result in a significant functional improvement that would enable him to return to work in the next two years. For the sake of completeness, I note that there is no medical or other compelling evidence supporting a finding that – aside from further surgical intervention - the Applicant should not undertake such reasonable treatments as prescribed.

21. My finding in relation to this spinal condition is that it was fully diagnosed, but not fully treated and stabilised during the relevant period because other reasonable treatment avenues were still live and available to the Applicant. Accordingly, no impairment rating can be assigned to it.

    Other Conditions

22. As mentioned earlier, the Applicant cited a range of additional ailments during the face-to-face interview with the JCA on 3 December 2015. Those additional ailments comprise: arthritis of the lower back, shoulders and elbows; a musculoskeletal disorder in relation to his jaw; partial hearing loss; low vision in both eyes; a hernia; a  reproductive problem; a circulatory issue in the form of vasculitis; and myopathy. Two additional conditions were included in the second JCA report after additional medical evidence was adduced, namely a shoulder and upper arm condition and migraine.

23. As best as I could understand the Applicant’s contentions, only the conditions relative to his “neck pain and headaches” were propounded.[39] Further, impairment points were exclusively sought by the Applicant pursuant to Table 1 and no other table.[40]

    [39] See Exhibit 1, at [16].

    [40] Ibid at [17].

24. For the sake of completeness, I note my agreement with the findings of the two JCA reports in relation to these other asserted conditions. That is, none of them can be  considered fully diagnosed, treated and stabilised during the relevant period and therefore no impairment points can be assigned.

25. While not directly referrable to any of the claimed conditions, I note the ongoing theme of recommendation for further treatment also arose in relation to one other potential condition. Mr Byrnes (the musculoskeletal physiotherapist) made reference to the Applicant’s reported psychological symptoms saying: “[the Applicant] also identified severe levels of psychological distress during the course of my assessment. I’ve organised an urgent psychology review and provided him with contact details for the 24-hour crisis management services.”[41]

    [41] Exhibit 9, T23, p 79.

    Self-reporting of conditions

26. I note that a number of the other conditions asserted by the Applicant arise on the basis of self-reporting only. Those self-reported conditions are the arthritis, partial hearing loss, low vision in both eyes, hernia, reproductive problem, and myopathy.

27. According to the Determination, before a condition can be considered permanent and assigned an impairment rating, it must have been diagnosed by an appropriately qualified medical practitioner, fully treated, fully stabilised and more likely than not to persist for more than two years.[42]

    [42] See s 6(4) of the Determination.

28. The Applicant has not produced any new medical evidence in relation to these conditions. In the absence of adequate medical evidence that is contemporaneous with the relevant period, the anecdotal evidence of the Applicant is insufficient to displace the findings of both JCA reports that these conditions were not fully diagnosed, treated and stabilised.

29. In the present case, the only propounded condition that can be considered fully diagnosed, treated and stabilised during the relevant period and thus capable of an impairment rating is the hypertension condition. The other asserted conditions do not even reach the stage of being capable of qualifying for any impairment rating.

    Summary of Impairment Points

Condition	Table	Points Assigned
Hypertension	Table 1 – Functions requiring physical exertion and stamina	0 points
Spinal Condition (Neck pain and headaches)	Table 4 – Spinal Function	Not fully treated and stabilised.
Other conditions	Various	Not verified by medical evidence and/or not fully diagnosed, treated and stabilised.
Total Points =		0

1. As the Applicant does not have a total of 20 or more impairment points under the Tables, he does not satisfy the requirement under section 94(1)(b) of the Act (the second of the requirements for DSP). He therefore does not qualify for DSP via this application.

   Continuing Inability to Work?

2. Given that this Applicant does not reach 20 points or more during the relevant period, it is not necessary for me to consider whether he satisfies the remaining criteria for DSP.

   An additional observation

3. This Applicant seems a genuine man in apparently straightened circumstances. He participated in the hearing by telephone and gave oral evidence via that medium. His evidence seemed sincere and not predominantly self-serving.  He gave evidence of a previously prosperous career in the oil and gas industry but that circumstances beyond his control forced him away from that career. He gave sincere evidence of the daily challenges presented by his asserted conditions, focusing on his neck and spinal condition which caused him chronic pain.

4. He seems to have made an attempt to get on with his life, having met and married a Thai lady. That relationship has yielded a three year old child. She has a 12 year old child from a previous relationship. His wife resides in Thailand and his intention is to have her move to Australia to reside with him. He honestly and frankly told the hearing that his quality of life would improve were she to live here with him. In particular, he indicated that he currently lives independently and does activities on his own, even though they may cause him pain, but that if his wife were to locate to Australia, she could assist him with some of the domestic burden. 

5. The Applicant has failed to reach 20 points or more via this application. I note his conditions may have worsened or become fully diagnosed, treated and stabilised since the relevant period for this DSP claim. The Applicant may benefit from lodging a fresh application for DSP with additional and more recent medical evidence. This is ultimately a matter for him.

   CONCLUSION

6. The Applicant does not qualify for DSP via this claim because his conditions cannot be assigned any impairment points during the relevant period.

   DECISION

7. Accordingly, the decision under review is affirmed.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

........................[sgd]..........................

Associate

Dated: 17 October 2017

Date of hearing:	21 September 2017
Counsel for the Applicant:	M. Taylor
Solicitors for the Applicant:	Disability Law Queensland
Solicitors for the Respondent:	C. Bishop, Mills Oakley