Reinke and Secretary, Department of Social Services (Social services second review)
[2016] AATA 520
•22 July 2016
Reinke and Secretary, Department of Social Services (Social services second review) [2016] AATA 520 (22 July 2016)
| Division | GENERAL DIVISION |
| File Number | 2015/5000 |
| Re | Gary Reinke |
| APPLICANT | |
| And | Secretary, Department of Social Services |
| RESPONDENT |
DECISION
| Tribunal | Member D K Grigg |
| Date | 22 July 2016 |
| Place | Brisbane |
The decision under review is affirmed.
.........................[sgd]....................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – DSP – 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)
REASONS FOR DECISION
Member D K Grigg
22 July 2016
INTRODUCTION
In May 2007 Mr Reinke fell 7 meters from scaffolding while at work. Mr Reinke was a painter. As a result of the fall he fractured his right ankle. Since the accident Mr Reinke has had several surgeries on his right ankle, right shoulder and right knee. Mr Reinke says the medical conditions he suffers as a result of this accident affect his ability to function and work.
On 20 February 2015 Mr Reinke lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “7 Pins and plate in right foot, Knee reconstruction, Shoulder reconstruction, Lower back, Depression” (“Claimed Medical Conditions”).[1]
[1] Exhibit 1, T Documents, T22, pages 185-215, at 199, Mr Reinke’s Claim for DSP dated 16 February 2015.
To date Mr Reinke’s claim has been rejected. Mr Reinke seeks a further review by this Tribunal.
Claim History
As a result of a Job Capacity Assessment (“JCA”) Mr Reinke’s claim was rejected by a Centrelink officer on 31 March 2015.[2] The JCA concluded that Mr Reinke’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]
[2] Exhibit 1, T Documents, T35, page 311, Centrelink Decision dated 31 March 2015.
[3] Exhibit 1, T Documents, T24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
Mr Reinke then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Reinke’s impairments did not attract 20 points or more under the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T26, pages 236-239, Centrelink letter to Mr Reinke dated 6 May 2015.
On 22 June 2015 Mr Reinke lodged an application for review with the Social Services and Child Support Division (“SSCSD”). The SSCSD rejected Mr Reinke’s claim and affirmed the ARO’s decision in August 2015.[5]
[5] Exhibit 1, T Documents, T2, pages 79-86, SSCSD’s Decision and Reasons for Decision dated 21 August 2015.
Mr Reinke has sought a review of the SSCSD’s decision by this Tribunal.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Reinke must have a physical, intellectual or psychiatric impairment;
(b)Mr Reinke’s impairment must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[6]
(c)Mr Reinke must have a continuing inability to work.
[my emphasis]
[6] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Reinke meets the Section 94 Requirements is the date of the claim (in this instance as at 20 February 2015), unless Mr Reinke becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[7] Therefore, in order to qualify for DSP Mr Reinke must have met the Section 94 Requirements between 20 February 2015 and 22 May 2015 (“Qualification Period”).
[7] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Reinke’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments in the Qualification Period.[8]
DID MR REINKE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: section 94(1)(a)?
[8] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1,] and on
appeal, Secretary, Department of Employment and Workplace Relations v Harris[2007] FCAFC 130;
(2007) 97 ALD 534; Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[9]
[9] Determination, s 3.
Mr Reinke’s Medical Conditions
Mr Reinke says his Claimed Medical Conditions affect his functional ability to “lift, carry, walk” and his “mobility”.[10]
[10] Exhibit 1, T Documents, T22, at page 199, Mr Reinke’s Claim for DSP dated 16 February 2015.
Dr Widanagamage Epa, Mr Reinke’s general practitioner, described Mr Reinke’s medical conditions in his report supporting Mr Reinke’s claim as:[11]
(a)“Right ankle pain and restricted movements due to degeneration and previous trauma” which he noted significantly affects Mr Reinke’s “walking, climbing and carrying” ability. Dr Epa reports that, as a result, Mr Reinke experiences “right ankle pain, unsteady gait, unable to put much weight onto right foot”;
(b)“lumbar spinal radiculopathy” which he noted significantly affects Mr Reinke’s “bending, lifting, carrying” ability. Dr Epa reports that, as a result, Mr Reinke experiences “back pain, hip pain, difficulty in sleeping because of pain”.
[11] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
Dr Epa also identified the following additional medical conditions suffered by Mr Reinke are well managed and cause minimal or limited impact on his ability to function:[12]
Hypertension, sleep apnoea, diverticulosis, obesity, depression, reflux – gastro-oesophageal
[12] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA was conducted face-to-face with Mr Reinke on 30 March 2015 by a Mental Health Nurse and Registered Occupational Therapist. The JCA assessors’ report states that Mr Reinke suffered from:[13]
·Lower limb deficiencies in relation to his right ankle (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Spinal disorder – lumbar spinal radiculopathy (which was found to be fully diagnosed but not fully treated and not fully stabilised);
·Hypertension (which was found to be fully diagnosed, fully treated and fully stabilised)
·Respiratory disorder – sleep apnoea (which was found to be fully diagnosed, fully treated and fully stabilised)
·Diverticular disease (which was found to be fully diagnosed, fully treated and fully stabilised)
·Morbid obesity (which was found to be fully diagnosed but not fully treated and not fully stabilised)
·Depression (verified by medical evidence)
·Gastroenterological condition – reflux gastro-esophageal (which was found to be fully diagnosed, fully treated and fully stabilised)
[13] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
The Secretary concedes that Mr Reinke satisfied section 94(1)(a) during the Qualification Period.[14]
[14] Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, at para 26.
I am satisfied on the medical evidence that that is correct.[15]
[15] Exhibit 1, the Section 37 Documents (T Documents) contain numerous medical reports, clinical notes, x-ray and
radiology reports concerning Mr Reinke’s conditions – see Exhibit 1, T Documents, T1, T4, T5, T8, T9, T10, T11,
T13, T14, T17, T18, T19, T21, T23, T25, T27, T28, T29, T31.
Conclusion on Impairments
In light of the above evidence I conclude that during the Qualification Period Mr Reinke suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:
·Lower limb impairment
·Lumber spine impairment
Whilst acknowledging that Mr Reinke suffers from hypertension, sleep apnoea, diverticular disease, morbid obesity and depression, there is no evidence to establish that those conditions affect his functional capacity or caused impairment during the Qualification Period. Dr Epa reports that these conditions cause minimal or limited impact on Mr Reinke’s ability to function.[16]
DO MR REINKE’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: Section 94(1)(b)?
[16] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[17] They are function based[18] and designed to assign ratings to determine the level of functional impact of impairment (Impairment Rating) and not to assess conditions.[19]
[17] Determination, ss 4(2) and 5(2)(a).
[18] Determination, s 5(2)(b) and (c).
[19] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[20]
(a)Mr Reinke’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[20] Determination, see s 6(3).
The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[21]
[21] De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA
368, at [12].
Mr Reinke’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[22]
(a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[22] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[23] the following is to be considered:[24]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[23] For the purposes of ss 6(4)(a) and (b) of the Determination.
[24] Determination, see s 6(5).
A condition is fully stabilised[25] if:[26]
(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;[27] or
(ii) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[25] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[26] Determination, see s 6(6).
[27] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it then has to be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an impairment rating using the Impairment Tables can be assigned.
However, before applying the Impairment Tables I must first consider Mr Reinke’s medical history, in relation to the condition causing the impairment.[28]
[28] Determination, see s 6(2).
I will now consider each of Mr Reinke’s impairments.
Lower Limb Impairment
Is Mr Reinke’s lower limb impairment permanent and likely to persist for at least 2 years?
Impairment Table 3, which is concerned with Lower Limb Function, provides that for the purposes of that Table lower limbs extend from the hips to toes.
Dr Epa reports that Mr Reinke’s lower limb impairment began in May 2007 due to the accident.[29] Dr Epa reports on 13 May 2015 the diagnosis, based on an x-ray of Mr Reinke’s right ankle, as “prominent osteoarthritis across subtalar and intratarsal joints, surgical fixation right ankle”.[30]
[29] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015;
Exhibit 1, T-Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May 2015.
[30] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015; X-Ray
report of Dr R Bilwani, dated 21 April 2015.
On 13 May 2015 Dr Epa reported that:[31]
(a)Mr Reinke was suffering from “right ankle pain, stiffness, reduced range of movement, unsteady gait”;
(b)In relation to the impact of this condition on Mr Reinke’s function that he has “limited mobility, unsteady gait, limited range of movement” in the “ankle, hip, knee”.
Right Ankle
[31] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
As at 13 May 2015, within the Qualification Period, Dr Epa reports that since 6 May 2015 Mr Reinke was being treated with physiotherapy, occupational therapy and opioid analgesics and future planned treatment included consulting with a new orthopaedic surgeon at Bundaberg Base Hospital.[32]
[32] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
Dr Epa reported that this condition was expected to persist for more than 24 months and that the effect of this condition on Mr Reinke’s ability to function within the 2 years was uncertain.[33]
[33] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
The JCA undertaken on 30 March 2015 also concluded that Mr Reinke’s lower limb impairment was permanent but was not fully treated and not fully stabilised.[34] The JCA noted that Dr Epa’s medical report indicates that the effect of this condition on Mr Reinke’s ability to function within the 2 years was uncertain and that Mr Reinke was yet to have up-to-date specialist consultation.[35]
[34] Exhibit 1, T Documents, T 24, pages 227-234, at 228, Job Capacity Assessment report dated 30 March 2015.
[35] Exhibit 1, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May 2015.
I note also that the JCA reported that Mr Reinke’s involvement with the recently commenced secondary therapies may result in functional improvement.
A physiotherapist reviewed Mr Reinke at the end of April 2015 and noted some improvements in his gait from one session of therapy. The physiotherapist reports he set goals and measures to use as motivation to work “towards the best possible improvements”.[36]
[36] Exhibit 1, T Documents, T27, Report of Neil Petersen, Physiotherapist, dated 6 May 2015.
Mr Reinke told the Tribunal that in 2009 his orthopaedic surgeon told him there was nothing else that could be done for his ankle impairment at that time and there was a probability that he would require further surgery.
The Respondent concedes that Mr Reinke’s lower limb impairment was fully diagnosed but contends that it was not fully treated and not fully stabilised in the Qualification Period.[37]
[37] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 35.
Based on the medical evidence available in the Qualification Period I find that Mr Reinke had been fully diagnosed with right ankle pain and restricted movements due to degeneration and previous trauma. However, I find that Mr Reinke’s lower limb condition has not been fully treated or fully stabilised as, during the Qualifying Period and from the evidence available, it is uncertain:
(a)whether Mr Reinke would likely benefit from further treatment and physical therapy and specialist consultation;
(b)whether any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Reinke to undertake work in the next 2 years; and, therefore
(c)whether Mr Reinke has undertaken reasonable treatment for the condition.
I find that during the Qualifying Period Mr Reinke’s lower limb impairment was not fully treated or fully stabilised during the Qualifying Period and therefore is not permanent and no Impairment Rating can be assigned.
Knee
Mr Reinke underwent an anterior cruciate ligament reconstruction on 13 March 2008. Dr Ganko, orthopaedic specialist, reported after the reconstruction in 2008, that:[38]
(a)The knee was “not causing any major problems”;
(b)Mr Reinke was undertaking rehabilitation which should continue.
[38] Exhibit 1, T Documents, T5, page 120, Medical Report of Dr Ganko dated 9 May 2008.
Mr Logan, a functional capacity assessor and physiotherapist, reported in 2009 that “this injury was indicated not to affect performance of work duties”.[39]
[39] Exhibit 1, T Documents, T1, page 47.
The Respondent submits that there is not enough medical evidence regarding Mr Reinke’s knee condition as at the Qualification Period to determine whether it is a permanent impairment. I agree.
Lumbar Spine Impairment
Is Mr Reinke’s lumbar spine impairment permanent and likely to persist for at least 2 years?
Dr Epa reports that Mr Reinke’s lower limb impairment began in May 2007 due to the accident.[40] Dr Epa reports on 13 May 2015 the diagnosis, based on a CT scan of Mr Reinke’s lumbar spine, as “lumbar spondylosis, diffuse hard disc herniation facetal arthropathy, spinal cord stenosis moderate”.[41]
[40] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015;
Exhibit 1, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May 2015.
[41] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015; CT Scan report of Dr R Bilwani, dated 10 February 2015.
On 20 February 2015 Dr Epa reported that:[42]
(a)Mr Reinke was suffering from “back pain, hip pain, difficulty in sleeping because of pain”;
(b)in relation to the impact of this condition on Mr Reinke’s function that “bending, lifting, carrying is affected”;
(c)since 2007 Mr Reinke had been treated with Panadol osteo and oxycodone and had had orthopaedic review in 2007; and
(d)future treatment is planned including trialling Pregabalin and a spinal surgeon review.
[42] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
As at 13 May 2015, within the Qualification Period, Dr Epa reports that:[43]
(a)Mr Reinke was suffering from “constant back pain, limited back movement”; and
(b)in relation to the impact of this condition on Mr Reinke’s function that he has “reduced ability to bend and move the back”.
(c)Mr Reinke was being treated with physiotherapy, TENS machine use and opioid analgesics; and
(d)future planned treatment included continuation of physiotherapy.[44]
[43] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
[44] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
Dr Epa reported that this condition was expected to persist for more than 24 months and that the effect of this condition on Mr Reinke’s ability to function within the 2 years was uncertain.[45]
[45] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
The JCA undertaken on 30 March 2015 also concluded that Mr Reinke’s lumbar spine impairment was fully diagnosed but was not fully treated and not fully stabilised.[46] The JCA noted that Dr Epa’s medical report indicates that the effect of this condition on Mr Reinke’s ability to function within the 2 years was uncertain and that Mr Reinke was yet to have up-to-date specialist consultation.[47]
[46] Exhibit 1, T Documents, T 24, pages 227-234, at 228, Job Capacity Assessment report dated 30 March 2015.
[47] Exhibit 1, T Documents, T Documents, T29, pages 249-259, Medical Report completed by Dr Epa dated 13 May
2015.
The JCA report notes that Mr Reinke’s involvement with the recently commenced secondary therapies may result in functional improvement.
The Respondent contends that Mr Reinke’s lumbar spine impairment was not fully diagnosed, not fully treated and not fully stabilised in the Qualification Period.[48]
[48] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 38.
Based on the medical evidence available in the Qualification Period I find that Mr Reinke had been fully diagnosed with lumbar spinal radiculopathy. However, I find that Mr Reinke’s condition has not been fully treated or fully stabilised as, during the Qualifying Period, from the evidence available because:
(a)he has not received specialist review since 2007;
(b)it is uncertain whether:
(i) Mr Reinke would likely benefit from further treatment and physical therapy and specialist consultation;
(ii) any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Reinke to undertake work in the next 2 years; and, therefore
(iii) Mr Reinke has undertaken reasonable treatment for the condition.
I therefore find that Mr Reinke’s lumbar spine impairment is not permanent and no Impairment Rating can be assigned.
Other Conditions
Hypertension
In February 2015 Dr Epa reported that Mr Reinke suffers from hypertension and that it was causing minimal or limited impact on his ability to function.[49] No mention is made of Mr Reinke suffering from hypertension in the May 2015 report of Dr Epa.
[49] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that it was chronic, well managed and caused no/minimal impact and concluded it fully diagnosed, fully treated and fully stabilised.[50]
[50] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
The Respondent contends there is insufficient evidence to determine whether Mr Reinke’s hypertension is fully diagnosed, fully treated and fully stabilised.[51]
[51] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 42.
There is no indication from Dr Epa of treatment being used for this condition or indeed any other information.
I find that there is insufficient evidence to determine whether Mr Reinke’s hypertension is fully diagnosed, fully treated and fully stabilised.
Sleep Apnoea
In February 2015 and May 2015 Dr Epa reported that Mr Reinke suffers from sleep apnoea and that it was well managed and was causing minimal or limited impact on his ability to function.[52]
[52] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that it was well managed and caused no/minimal impact and concluded it fully diagnosed, fully treated and fully stabilised.[53]
[53] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
Mr Reinke says he relies on a CPAP (continuous positive airway pressure therapy) machine to treat this condition.
The Respondent concedes that Mr Reinke’s sleep apnoea was fully diagnosed, fully treated and fully stabilised.[54]
[54] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 40.
I find that Mr Reinke’s sleep apnoea is fully diagnosed, fully treated and fully stabilised.
However, whilst acknowledging that Mr Reinke suffers from sleep apnoea there is no evidence to establish that those conditions affect his functional capacity or caused impairment during the Qualification Period. Dr Epa reports that these conditions cause minimal or limited impact on Mr Reinke’s ability to function.[55]
Diverticular Disease
[55] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
In February 2015 Dr Epa reported that Mr Reinke suffers from diverticulitis and that it was well managed and caused minimal or limited impact on his ability to function.[56] No mention is made of Mr Reinke suffering from diverticulitis in the May 2015 report of Dr Epa.
[56] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that it was well managed and caused no/minimal impact and concluded it was fully diagnosed, fully treated and fully stabilised.[57]
[57] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
The Respondent contends there is insufficient evidence to determine whether Mr Reinke’s diverticulitis is fully diagnosed, fully treated and fully stabilised.[58]
[58] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 42.
There is no indication from Dr Epa of treatment being used for this condition or indeed any other information.
I find that there is insufficient evidence to determine whether Mr Reinke’s diverticulitis is fully diagnosed, fully treated and fully stabilised. Therefore, no impairment rating can be assigned.
Obesity
In February 2015 Dr Epa reported that Mr Reinke suffers from obesity and that it was well managed and caused minimal or limited impact on his ability to function.[59]
[59] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that his obesity was not well managed and concluded it was fully diagnosed but not fully treated and not fully stabilised.[60]
[60] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
The Respondent contends there is insufficient evidence to determine whether Mr Reinke’s obesity is fully diagnosed, fully treated and fully stabilised.[61]
[61] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 42.
There is no indication from Dr Epa of treatment being used for this condition or indeed any other information.
I find that there is insufficient evidence to determine whether Mr Reinke’s obesity is fully diagnosed, fully treated and fully stabilised. Therefore, no impairment rating can be assigned.
Reflux – Gastro-Oesophageal
In February 2015 Dr Epa reported that Mr Reinke suffers from reflux and that it was well managed and caused minimal or limited impact on his ability to function.[62]
[62] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that it was well managed and caused no/minimal impact and concluded it fully diagnosed but not fully treated and not fully stabilised.[63]
[63] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
The Respondent contends there is insufficient evidence to determine whether Mr Reinke’s reflux is fully diagnosed, fully treated and fully stabilised.[64]
[64] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 7 January 2016, para 42.
There is no indication from Dr Epa of treatment being used for this condition or indeed any other information.
I find that there is insufficient evidence to determine whether Mr Reinke’s reflux is fully diagnosed, fully treated and fully stabilised. Therefore, no impairment rating can be assigned.
Depression
In February 2015 Dr Epa reported that Mr Reinke suffers from depression and that it was well managed and caused minimal or limited impact on his ability to function.[65] No mention is made of Mr Reinke suffering from depression in the May 2015 report of Dr Epa.
[65] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA reported that Mr Reinke confirmed that it was chronic, well managed and caused no/minimal impact provided he takes his medications. However, the JCA noted that there is no sufficient corroborating evidence and the condition has not been diagnosed by a psychiatrist or clinical psychologist and therefore is not fully diagnosed and not fully treated and not fully stabilised.[66]
[66] Exhibit 1, T Documents, T 24, pages 227-234, Job Capacity Assessment report dated 30 March 2015.
Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned.
As a result I find that Mr Reinke’s mental health condition was not fully diagnosed, treated or fully stabilised. Therefore, no impairment rating can be assigned.
Planter Fasciitis
In May 2015 Dr Epa reported that Mr Reinke suffers from planter fasciitis and that it was well managed and caused minimal or limited impact on his ability to function.[67]
[67] Exhibit 1, T Documents, T23, pages 216-226, Medical Report completed by Dr Epa dated 20 February 2015.
The JCA did not report on this condition.
There is no indication from Dr Epa of treatment being used for this condition or indeed any other information.
I find that there is insufficient evidence to determine whether Mr Reinke’s planter fasciitis is fully diagnosed, fully treated and fully stabilised. Therefore, no impairment rating can be assigned.
CONCLUSION
As I have concluded that Mr Reinke’s impairments are not permanent and therefore do not attract an Impairment Rating during the Qualification Period it is unnecessary for me to consider whether Mr Reinke had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) during the Qualification Period.
Mr Reinke’s claim fails because he did not qualify for DSP during the Qualification Period.
The decision under review is affirmed.
| I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg |
...............[sgd].........................................
Associate
Dated 22 July 2016
| Date of hearing | 24 June 2016 |
| Applicant | Self-represented |
| Advocate for the Respondent | Maleah Underhill |
| Solicitors for the Respondent | Department of Human Services – FOI and Litigation Team |
1
1
0