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

Rogers and Secretary, Department of Social Services (Social services second review) [2020] AATA 4559 (12 November 2020)
Division:GENERAL DIVISION
File Number:2020/3727
Re:James Rogers
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:12 November 2020
Place:Brisbane

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

REASONS FOR DECISION
Member D Mitchell
12 November 2020
INTRODUCTION

On 15 March 2019, Mr James Rogers (the Applicant) lodged a claim for the disability support pension (DSP).[1] On the Applicant’s claim for DSP form he lists his disabilities or medical conditions that significantly affect his ability to work to include: “osteoarthritis and respiratory”[2] conditions.
[1] Exhibit 1, T Documents, T5, pages 63-64, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T5, pages 63-64, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 14 August 2019,[3] on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables. This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 16 March 2020.[4]
[3] Exhibit 1, T Documents, T13, pages 134-135, Centrelink Notice: Rejection of DSP claim.
[4] Exhibit 1, T Documents, T22, pages 160-164, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), who affirmed the decision of the ARO on

19 May 2020.[5]
[5] Exhibit 1, T Documents, T2, pages 3-13, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application received on 17 June 2020.[6]
[6] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 3 November 2020, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination). Following is a summary of the key requirements which relate to the Applicant.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[7]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[8] and
3.does the Applicant have a continuing inability to work?[9]
[7]     Section 94(1)(a) of the Act.
[8]     Section 94(1)(b) of the Act.
[9]     Section 94(1)(c) of the Act.
Under the Determination an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[10]
[10] Section 6(3) of the Determination.
Permanent takes on a specific meaning for the purposes of DSP. To be considered permanent for DSP a condition must: have been fully diagnosed by an appropriately qualified medical practitioner; have been fully treated; have been fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[11] As such, a condition could be considered permanent from the perspective of being life-long, but not meet the definition under the DSP requirements.
[11] Sections 6(3) and (4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or planned in the next two years.[12]
[12] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[13]
(a)     either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)       the person has not undertaken reasonable treatment for the condition and:
(i)    significant functional improvement to a level enabling the person to           undertake work in the next 2 years is not expected to result, even if the    person undertakes reasonable treatment; or
(ii)   there is a medical or other compelling reason for the person not to undertake         reasonable treatment.
[13]    Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can 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.[14]
[14] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[15] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[16]
[15] Section 6(2) of the Determination.
[16] Section 8(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[17]
[17] Section 94(3B) of the Act.
The Administration Act sets out that qualification for DSP, and therefore assessment of the relevant impairment ratings, is to be determined at the date of claim or where a person is not qualified on that date but become qualified within 13 weeks of lodging the claim, in which case the start date for DSP is the date the person becomes qualified.[18]
[18] Sections 41 and 42; clause 3 and clause 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for DSP and the 13 weeks which followed it. Further, medical and other evidence that is provided outside the Relevant Period may be considered, however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[19]
[19] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commences on 15 March 2019, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 14 June 2019. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments during the Relevant Period and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[20] The Respondent considers the Applicant’s impairments include osteoarthritis of the knees,[21] obstructive sleep apnoea,[22] chronic obstructive airways disease (COAD), interstitial lung disease, granuloma and pleural thickening (collectively Lung),[23] obesity, carpal tunnel syndrome, lower back pain, haemochromatosis gene (collectively Other)[24] conditions.
[20]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 28.
[21]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 31-34.
[22]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 35-37.
[23]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 9-10, paragraphs 38-44.
[24]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 45-48.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period did the Applicant’s impairments attract 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
IMPAIRMENT TABLES
The Impairment Tables set out in the Determination outline the requirements to assess a person’s functional impairment resulting from a condition which is considered to be permanent for the purposes of the Determination. The relevant descriptors for the Impairment Tables that have been raised as being applicable in this matter are set out below.
Table 1 of the Impairment Tables deals with functions requiring physical exertion and stamina and provides as follows:[25]
Table 1 - Functions requiring Physical Exertion and Stamina
[25] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.

Introduction to Table 1

·     Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.

·     The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·     Self-report of symptoms alone is insufficient.

·     There must be corroborating evidence of the person’s impairment.

·     Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

o    a report from the person’s treating doctor;

o    a report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);

o    a report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);

o    results of exercise, cardiac stress or treadmill testing.

Points

Descriptors

0
There is no functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and

(b)      has no difficulty completing physically active tasks around their home and community.

5
There is a mild functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:

(i)       walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or

(ii)       performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and

(b)      is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).

10
There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20
There is a severe functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)       walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)      has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

Table 3 of the Impairment Tables deals with lower limb function and provides as follows:[26]
Table 3 – Lower Limb Function
[26] Impairment Table 3 – Lower Limb Function, Part 3 of the Determination.

Introduction to Table 3

·    Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.

·    The diagnosis of the condition must be made by an appropriately qualified medical practitioner.

·    Self-report of symptoms alone is insufficient.

·    There must be corroborating evidence of the person’s impairment.

·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

a report from the person’s treating doctor;

a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);

a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;

results of diagnostic tests (e.g. X-Rays or other imagery);

results of physical tests or assessments.

·   For the purposes of this Table lower limbs extend from the hips to the toes.

Points

Descriptors

0
There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5
There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

10
There is a moderate functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or

(b)      the person is unable to use stairs or steps without assistance; or

(c)      the person is unable to stand for more than 5 minutes; and

(2)      The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket.

(3)      This impairment rating level includes a person who can:

(a)      move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or

(b)      move around independently using walking aids (e.g. quad stick, crutches or walking frame).

Note:     The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.

20
There is a severe functional impact on activities using lower limbs.

(1)      The person:

(a)      is unable to do any of the following:

(i)       walk around a shopping centre or supermarket without assistance;

(ii)       walk from the carpark into a shopping centre or supermarket without assistance;

(iii)      stand up from a sitting position without assistance; and

(b)      requires assistance to use public transport.

(2)      This impairment rating level includes a person who requires assistance to:

(a)      move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or

(b)      move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.

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

At Hearing, the Applicant gave evidence under affirmation and openly responded to questions from the Tribunal and cross-examination from the Respondent. I consider that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. I accept that the Applicant’s conditions limit his mobility and ability to undertake activities.
Osteoarthritis of the knees
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s osteoarthritis of both knees was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating under the Impairment Tables. This point is not in contention.[27]
[27] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 31-34.
The Respondent contends that the Applicant’s osteoarthritis of the knees condition can at most be assigned 10 points under Table 3 of the Impairment Tables. In support of this contention the Respondent relevantly relied upon the following:[28]
[28] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-8, paragraph 33.
a.On 11 May 2018 and 14 August 2018, Dr Adikarige completed medical certificates stating that the Applicant’s symptoms included difficulty walking (T27/220-221).
b.On 14 February 2019, Dr Kritzinger completed a medical certificate stating that the Applicant’s symptoms included chronic pain in both knees, aggravated by standing/walking (T27/222).
c.On 13 March 2019, the Applicant reported to an Employment Services Assessor (ESA) that he was using a walking stick to mobilise, that his mobility was very restricted, that he could only walk from the car park to the entrance of the Centrelink office, that he had severe difficulty climbing stairs, that he had difficulty walking up a slope, that he could drive ok, that sitting was okay but when he gets up his legs are very stiff, that he had morning joint stiffness and that he was ok with public transport (T8/107).
d.On 5 August 2019, the Applicant reported to the JCA that he had been using a walking stick for approximately 6 months and used a wheel walker for grocery shopping so he could sit as required (T12/129). He reported that knee pain and shortness of breath impacts his mobility. He reported a standing tolerance of five to ten minutes. He reported shortness of breath occurs after walking 50 metres. He reported that he does not have stairs at home and would prefer to use a ramp rather than navigate stairs/a gutter. He reported being unsteady on his feet. He reported difficulties standing at the sink to wash up due to knee pain and needing to sit and rest. He report he could do sweeping and mopping only a little bit at a time. The JCA recommended that the Applicant be assigned 5 points under Table 3, on the basis that he has some difficulty walking around a shopping mall or supermarket without a rest.
e.On 29 October 2019, Dr Kritzinger reported that the Applicant’s symptoms included chronic severe painful knees, aggravated by standing and walking (T17/148).
f.……..
g.The Applicant gave evidence to the AAT1 at [37] that his knees are painful and he is slow to mobilise. He can only walk about 50 metres before stopping. He uses a walking stick at home and a wheeled walker when out in the community. His knees are painful on weight bearing.
The Respondent further contended that there is insufficient evidence for the Tribunal to find that the Applicant attracted 20 point under Table 3 during the Relevant Period. In particular, the Respondent contended that the Applicant’s self-reporting to the Employment Services Assessor and Job Capacity Assessor indicates that during the Relevant Period he was able to:[29]
a.walk around a shopping centre or supermarket without assistance (from another person); and
b.walk from the carpark into a shopping centre or supermarket without         assistance (from another person); and
c.stand up from a sitting position without assistance (from another     person); and
d.use public transport.
[29]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 34.
At the Hearing the Applicant told the Tribunal that:
·he has been waiting for surgery to help with his knees, however, was told he had to wait until he turned 65 before he would be consider for surgery;
·the pain in his knees have gotten worse and will continue to do so until he gets his operations;
·he is flat out walking and can only walk using a walking stick or wheelie walker;
·he can walk from the car into the shopping centre and around the shopping centre however he had to use his wheelie walker and take regular breaks;
·he can get in and out of a chair however only if they have arm rests;
·he can use stairs however he had to be very careful, it is very slow and it causes him a lot of pain;
·he could use public transport however he lives out of town and the main transport available to him is to drive or taxi; and
·his wife now does most of the driving as he is unable to.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s osteoarthritis of the knees condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and that this conditions can be assigned 10 points under Table 3 of the Impairment Tables.
Obstructive sleep apnoea
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s obstructive sleep apnoea condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned an impairment rating under the Impairment Tables. This point is not in contention.[30]
[30] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 35-37.
The Respondent contended that the Applicant’s obstructive sleep apnoea condition does not attract an impairment rating above zero points under Table 1 of the Impairment Tables. In support of this contention the Respondent relevantly relied upon the following:[31]
a.On 5 August 2019, the Applicant reported to the JCA his fatigue with current use of CPAP was “good” and he was generally getting five hours sleep (T12/127). The JCA noted that the Applicant had had a good response to CPAP and recommended that he be assigned 0 points under Table 1.
b.The Applicant gave evidence to the AAT1 at [21] that use of the CPAP machine seven to eight hours per night had been beneficial, and he sleeps well and wakes refreshed. He no longer has daytime sleepiness.
[31] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraph 37.
At Hearing the Applicant told the Tribunal:
·that he uses the CPAP machine while sleeping;
·that as a result he gets a decent night sleep and wakes up refreshed;
·he no longer has daytime sleepiness; and
·the CPAP machine does not help with his shortness of breath through the day.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s obstructive sleep apnoea condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. I am satisfied that during the Relevant Period this condition caused no or minimal functional impact on the Applicant’s activities requiring physical exertion or stamina and as such can only be assigned 0 points under Table 1 of the Impairment Tables. It is the Applicant’s Lung condition that is impacting on his activities requiring physical exertion and stamina.
Lung conditions
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s chronic obstructive airways disease (COAD), interstitial lung disease, granuloma and pleural thickening (collectively Lung conditions) were fully diagnosed at the Relevant Period. This point is not in contention.[32]
[32] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 38.
The Respondent contended that the Applicant’s Lung conditions were not fully treated and fully stabilised during the Relevant Period. The Respondent submitted that there is no evidence that the Applicant had engaged in specialist review or pulmonary rehabilitation or that such treatment would not result in functional improvement to a level enabling the Applicant to undertake work within the next two years. The Respondent contended that this treatment would be reasonable treatment as defined under section 6(7) of the Determination.[33]
[33] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraph 39-44.
At the Hearing the Applicant told the Tribunal:
·that his lung conditions cause him to experience shortness of breath when he exerts himself;
·he can walk for about 50 metres and then needs to take a break;
·he believes that there is nothing that can be done for these conditions;
·he had not yet seen a specialist in relation to his lung conditions, his GP was holding back however, he had recently had new x-rays done and is seeing his GP on Monday to get a referral to see a specialist at the Rockhampton Base Hospital; and
·he had not done pulmonary rehabilitation as that might be part of the specialist review.
Based on the information before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that the Applicant’s Lung conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period. The Applicant had not yet been reviewed by a specialist and as such there is no evidence that reasonable treatment has been exhausted. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Other conditions
Based on the medical evidence before the Tribunal, there is no doubt that the Applicant’s obesity, carpal tunnel syndrome, lower back pain, haemochromatosis gene conditions (collectively referred to as the Other conditions) were fully diagnosed during the Relevant Period. This point is not in contention.[34]
[34] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 45-48.
At the Hearing the Applicant told the Tribunal:
·that he has lost 10kgs in the last few months which is hard when he cannot exercise;
·he is not concerned about his carpal tunnel as he has other conditions that are worse;
·his back is being managed with pain medication and is not too bad;
·he is a carrier of the haemochromatosis gene, so he still gets the symptoms of a build up of iron in his joints which affects his arthritis; and
·overall while these Other conditions affect him, he is not as worried about them as he is about his osteoarthritis of the knees and Lung conditions, so treatment of his Other conditions have not been a focus.
The Respondent contended that the Applicant’s Other conditions were not fully treated and fully stabilised during the Relevant Period as further treatment was being recommended or there was insufficient evidence before the Tribunal to allow it to reach a different view.[35]
[35] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 45-48.
Consequently, based on the limited information in relation to the Applicant’s Other conditions before the Tribunal, contentions made by the Respondent and evidence provided by the Applicant, I am satisfied that these conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period. Accordingly, these conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
Continuing Inability to Work
As I have found that the Applicant does not have a total of 20 impairment points either on one table or cumulative across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s osteoarthritis of the knees condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned 10 impairment points under Table 3 of the Impairment Tables.
I find that the Applicant’s obstructive sleep apnoea condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned 0 impairment points under Table 1 of the Impairment Tables.
I find that the Applicant’s Lung and Other conditions were fully diagnosed, however were not fully treated and fully stabilised during the Relevant Period and therefore could not be considered permanent for the purposes of applying the Impairment Tables. I am unable to assign impairment points for these conditions.
I find that the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

................[SGD]........................................................
Associate
Dated: 12 November 2020

Date of Hearing: 3 November 2020

Applicant: By telephone

Solicitors for the Respondent:
Ms Gillian Gehrke

Services Australia

[2020] AATA 4559

12 November 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Points	Descriptors
0	There is no functional impact on activities requiring physical exertion or stamina. (1) The person: (a) is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and (b) has no difficulty completing physically active tasks around their home and community.
5	There is a mild* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty: (i) walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or (ii) performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and (b) is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
10	There is a moderate* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person: (i) is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or (ii) has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and (b) is able to: (i) use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and (ii) perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
20	There is a severe* functional impact on activities requiring physical exertion or stamina*. (1) The person: (a) usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to: (i) walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or (ii) walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or (iii) use public transport without assistance; or (iv) perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and (b) has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

Introduction to Table 3
· Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet. · The diagnosis of the condition must be made by an appropriately qualified medical practitioner. · Self-report of symptoms alone is insufficient. · There must be corroborating evidence of the person’s impairment. · Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following: a report from the person’s treating doctor; a report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb); a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact; results of diagnostic tests (e.g. X-Rays or other imagery); results of physical tests or assessments. · For the purposes of this Table lower limbs extend from the hips to the toes.
Points	Descriptors
0	There is no functional impact on activities requiring use of the lower limbs. (1) The person can: (a) walk without difficulty on a variety of different terrains and at varying speeds; and (b) walk without difficulty around the home and community; and (c) kneel or squat and rise back to a standing position without difficulty; and (d) stand unaided for at least 10 minutes; and (e) use stairs without difficulty.
5	There is a mild* functional impact on activities using lower limbs*. (1) At least one of the following applies: (a) the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or (b) the person has some difficulty walking around a shopping mall or supermarket without a rest; or (c) the person has some difficulty climbing stairs; and (2) At least one of the following applies: (a) the person is unable to stand for more than 10 minutes; (b) the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
10	There is a moderate* functional impact on activities using lower* limbs. (1) At least one of the following applies: (a) the person is unable to walk far outside their home and needs to drive or get other transport to local shops or community facilities; or (b) the person is unable to use stairs or steps without assistance; or (c) the person is unable to stand for more than 5 minutes; and (2) The person is able to use public transport or a motor vehicle and walk around in a shopping centre or supermarket. (3) This impairment rating level includes a person who can: (a) move around independently using a wheelchair and can independently transfer to and from a wheelchair (e.g. can use a wheelchair accessible toilet independently); or (b) move around independently using walking aids (e.g. quad stick, crutches or walking frame). Note: The person may require additional time and effort to move around a workplace, may need to use disabled access entries, lifts and toilets, and may not be able to access some areas of a workplace or training facility.
20	There is a severe* functional impact on activities using lower limbs*. (1) The person: (a) is unable to do any of the following: (i) walk around a shopping centre or supermarket without assistance; (ii) walk from the carpark into a shopping centre or supermarket without assistance; (iii) stand up from a sitting position without assistance; and (b) requires assistance to use public transport. (2) This impairment rating level includes a person who requires assistance to: (a) move around in, or transfer to and from a wheelchair (e.g. the person needs personal care assistance to use a toilet); or (b) move around using walking aids (e.g. a quad stick, crutches or walking frame), that is, the person needs assistance from another person to walk on some surfaces and could not move independently around a workplace or training facility, even when using a walking aid.