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

Rusiecki and Secretary, Department of Social Services (Social services second review) [2019] AATA 5544 (23 December 2019)
Division:GENERAL DIVISION
File Number(s): 2019/1094
Re:Marzena Rusiecki
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member I Fletcher
Date:23 December 2019
Place:Perth

The Reviewable Decision of the 5 February 2019 is affirmed.
............................[sgd]............................................
Member I Fletcher
CATCHWORDS
SOCIAL SECURITY – Eligibility for Disability Support Pension – impairment rating – effective date of cancellation – decision is affirmed
LEGISLATION
Social Security Act 1991 (Cth) – s 23(1), s 26, s 94(1), s 94(2)
Social Security (Administration) Act 1999 (Cth)
– s 26, s 27, s 27(3), s 63(2), s 80(1),
s 118(3)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
– s 3, s 5(2), 6, s 6(1), s 6(2), s 6(3), s 6(4),
s 6(5), s 6(6), s 6(7), s 8, s 10(1), s 11, s 11(1)(c)

CASES
Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938
Freeman v Secretary, Department of Social Security (1988) 19 FCR 342
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Guides to Social Policy Law: Social Security Guide
, Version 1.258, released

11 November 2019
REASONS FOR DECISION
Member I Fletcher
23 December 2019
BACKGROUND

This review concerns whether Ms Marzena Rusiecki (the Applicant) continues to meet the qualification requirements for disability support pension (DSP).
On 12 February 2003 the Applicant was granted a DSP.
On 26 June 2017 Centrelink commenced a review of the Applicant’s entitlement to a DSP. She was referred for a job capacity assessment (JCA), where her capacity to work was assessed on 22 March 2018.
On 17 September 2018, a Centrelink officer at the Department of Human Services (the Department) decided that the Applicant was no longer qualified for a DSP as she no longer met the required medical eligibility criteria (T22, p 171). The medical condition(s) must be fully diagnosed, treated and stabilised, and have an impairment rating of

20 points or more in accordance with the tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination) to qualify for a DSP.
The Applicant requested a review of the decision by the Department. On

16 October 2018, an Authorised Review Officer (ARO) affirmed the decision by the Department to cancel the Applicant’s DSP.
On 18 October 2018, the Applicant applied to the Administrative Appeals Tribunal (Social Services and Child Support Division) (the AAT1) for a review of the ARO decision to cancel her DSP.
On 22 January 2019, the AAT1 conducted the hearing for the application by the Applicant to review the ARO decision to cancel her DSP.
After the hearing, the Applicant provided the AAT1 with additional medical evidence, including reports of x-rays of the spine, dated 3 December 2018, and an ultrasound guided injection of the right elbow, dated 10 December 2018 (T2, p 4), which resulted in the AAT1 adjourning to consider this further evidence.
On 5 February 2019, the AAT1 reconvened and affirmed the decision of the ARO to cancel the Applicant’s DSP.
On 27 February 2019, the Applicant lodged an application with the General Division of the Administrative Appeals Tribunal (the Tribunal), for a second review of the AAT1 decision (T1, p 1).
On 13 November 2019, the Tribunal conducted a hearing to review the decision made by the AAT1. The Applicant attended in person and was not represented. Ms Sarah Dinkha from Centrelink Legal Services Branch attended in person and represented the Respondent.
MATERIALS BEFORE THE TRIBUNAL
At the hearing, the Tribunal accepted the following documents into evidence;
(a)a Statement by Ginette Black, dated 17 April 2019 (Exhibit A1);
(b)
a copy of Ms Rusiecki’s pharmacy records, received by the Tribunal on

30 June 2019 (Exhibit A2);
(c)
a copy of Medical Certificates, dated 1 May 2019 and 3 May 2019

(Exhibit A3);
(d)a copy of a letter from Dr Sheena Kartha, Pinjarra Doctors, dated 22 May 2019 (Exhibit A4);
(e)a copy of Ms Rusiecki’s Centrelink Forms (Exhibit A5); and
(f)a copy of the Respondent’s Statement of Facts, Issues and Contentions (SFIC), dated 24 July 2019, including (Exhibit R1):
oAnnexure A – Report of Dr Sheena Kartha, dated 22 May 2019
oAnnexure B – Medical Certificate, dated 1 May 2019
oAnnexure C – Medical Certificate, dated 3 May 2019
oAnnexure D – Applicant’s Medicare Report
oAnnexure E – Applicant’s PBS Records
oAnnexure F – Applicant’s Pharmacy Records
oAnnexure G – Applicant’s Earnings Summary
DECISION UNDER REVIEW
The decision of the AAT1 made on 5 February 2019, affirming the decision of an ARO made on 16 October 2018 to cancel the Applicant’s claim for DSP on 17 September 2018 (the Reviewable Decision) (T2, p 3).
ISSUES
In determining whether the AAT1 decision is the correct and preferable decision, the Tribunal must apply the qualification criteria for DSP, found in s 94(1) of the Social Security Act 1991 (Cth) (the Act). In particular, it must consider the following

(Exhibit R1, p 1):
(a)whether, as at the date of cancellation, 17 September 2018, the Applicant had a physical, intellectual or psychiatric impairment for the purpose of s 94(1)(a) of the Act;
(b)
if so, whether the Applicant had an impairment rating of at least

20 points on the Impairment Tables contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Impairment Tables”) for the purpose of s 94(1)(b) of the Act; and
(c)if so, whether the Applicant had a continuing inability to work, as defined in s 94(2) of the Act, for the purpose of s 94(1)(c) of the Act.
LEGISLATION AND POLICY
Section 94(1) of the Act sets out the qualification criteria for a DSP. Section 94(1) states:
(1)A person is qualified for disability support pension if:
(a)the person has a physical, intellectual or psychiatric impairment; and
(b)the person’s impairment is of 20 points or more under the Impairment Tables; and
(c)one of the following applies:
(i) the person has a continuing inability to work; …
Section 23(1) of the Act states:
Impairment Tables means the tables determined by an instrument under subsection 26(1).
(Original Emphasis.)
The Minister has determined tables as contemplated by s 26 of the Act and states:
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.’
These tables are contained in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables Determination).
“Impairment” is defined in s 3 of the Impairment Tables Determination as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 5(2) of the Impairment Tables Determination states:
Purpose and general design principles
(2)The Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
Sections 6(1), (2) and (3) of the Impairment Tables Determination states:
Assessing functional capacity
(1)The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.
Applying the Tables
(2)The 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.
Impairment ratings
(3)An impairment rating can only be assigned to an impairment if:
(a)the person’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...
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables Determination which states:
(4)… a condition is permanent if:
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and
(b)the condition has been fully treated; and
…
(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.
Sections 6(5) and 6(6) of the Impairment Tables Determination outline requirements that must be satisfied for a condition to be fully diagnosed, treated and stabilised and states:
Fully diagnosed and fully treated
(5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:
(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.
Fully stabilised
(6)For the purposes of paragraph 6(4)(c) and subsection 11(4) 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 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.
Subsection 6(7) of the Impairment Tables Determination states that:
For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a)is available at a location reasonably accessible to the person; and
(b)is at a reasonable cost; and
(c)can reliably be expected to result in a substantial improvement in functional capacity; and
(d)is regularly undertaken or performed; and
(e)has a high success rate; and
(f)carries a low risk to the person.
Section 8 of the Impairment Tables Determination states:
Information that must not be taken into account in applying the Tables
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person's impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person's local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
(Original Emphasis.)
Subsection 10(1) of the Impairment Tables Determination states that:
Table selection is to be made by applying the following steps:
(a)identify the loss of function; then
(b)refer to the Table related to the function affected; then
(c)identify the correct impairment rating.
Paragraph 11(1)(c) of the Impairment Tables Determination states that:
if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied;…
Section 11 of the Impairment Tables Determination states:
(1)In assigning an impairment rating:
(a)an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b)a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c)if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d)a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2)In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied….
Section 94(2) of the Act defines what is meant by “a continuing inability to work” as follows:
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa)in a case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases – the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) in all cases – either:
(i) the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii) 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 program of support within the next 2 years.
(Original emphasis.)
Section 26 of the Social Security (Administration) Act 1999 (Cth) states:
Impairment Tables and rules for applying them
Impairment Tables
(1)The Minister may, by legislative instrument, determine tables relating to the assessment of work‑related impairment for disability support pension.
(2)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those tables as the Minister considers appropriate.
Rules for applying Impairment Tables
(3)The Minister may, in an instrument under subsection (1), determine rules that are to be complied with in applying the tables referred to in subsection (1) and the provisions referred to in subsection (2).
(4)An instrument under subsection (1) may contain such ancillary or incidental provisions relating to those rules as the Minister considers appropriate.
(Original emphasis.)
Section 27 of the Social Security (Administration) Act 1999 (Cth) states:
…
(3)         If:
(a)       a person is receiving disability support pension; and
(b)the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
the Secretary, in assessing the person’s qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
(4)         If:
(a)after assessing the person’s qualification for that pension, the Secretary makes a determination under section 80 of the Administration Act in relation to that pension; and
(b)the Secretary or the AAT is reviewing that determination or a later decision arising out of that determination;
the Secretary or the AAT, in making a decision on the review, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
(Notes Omitted.) (Original Empahsis.)
Section 63(2) of the Social Security (Administration) Act 1999 (Cth) states:
If the Secretary is of the opinion that a person to whom this subsection applies should:
(a)attend an office of the Department; or
(b)contact the Department; or
(c)attend a particular place for a particular purpose; or
(d)give information to the Secretary;
the Secretary may notify the person that he or she is required, within a specified time, to do that act or thing. However, the Secretary may not, under this subsection, notify a person that he or she is required to do an act or thing referred to in paragraph (4)(a) or (b).
Section 80(1) of the Social Security (Administration) Act 1999 (Cth) states:
80Cancellation or suspension determination
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
(a) who is not, or was not, qualified for the payment; or
(b) to whom the payment is not, or was not, payable (other than because of the operation of Division 3AA);
the Secretary is to determine that the payment is to be cancelled or suspended.
(Original Emphasis.)
Section 118(3) of the Social Security (Administration) Act 1999 (Cth) states:
In any other case, an adverse determination takes effect:
(a)on the day on which it is made; or
(b)if a later day is specified in the determination, on that day.
The relevant policy is contained in the Guides to Social Policy Law: Social Security Guide (the Guide). The Secretary contends that to ensure consistency in decision making, the relevant policy should be followed unless there are cogent reasons for departing from it (Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) (1979) 2 ALD 634).
QUALIFICATION FOR DSP
The qualification criteria for DSP are set out in s 94(1) of the Act, which relevantly states as follows:
Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person's impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work; ...
(Original Emphasis.)
Cancellation – relevant date
On 17 September 2018 (Cancellation Date), the Department made the decision to cancel the Applicant’s DSP on the basis that she lacked ongoing eligibility. The decision was made under s 80 of the Social Security (Administration) Act 1999 (Cth) (Administration Act) which provides that the Secretary must cancel or suspend a social security payment (including DSP) if the Secretary is satisfied that the payment is being paid to a person who is not or was not qualified for it (see above at [32]).

Such a decision is an adverse determination within the meaning of s 118(13) of the Administration Act, which provides that it ordinarily takes effect on the day on which it is made (see above at [33]).
As explained by Justice Davies in Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 at 346, the significance of cancellation (as against suspension) under s 80(1) is that:
A decision cancelling a pension or benefit brings to an end the entitlement to a pension or benefit. Entitlement to the pension or benefit only revives on the lodgement of a proper claim for the grant of the pension or benefit.
Review of a decision to cancel a social security payment requires consideration of whether the person is qualified at the date of cancellation, not at any other time. Due to the temporal element involved, it is irrelevant that a person may satisfy the qualification criteria on a subsequent day (see Shi v Migration Agents Registration Authority (2008) 235 CLR 286, per Hayne and Heydon JJ).
The Respondent contended in the SFIC (Exhibit R1, p3 para 4.8) that the relevant date for consideration of the Applicant’s qualification for DSP is limited to the date her DSP was cancelled, this being 17 September 2018.
Impairment Tables
The Applicant was granted DSP under the previous Impairment Tables. However, on

1 January 2012, the current Impairment Tables, as contained in the Impairment Tables Determination, came into force per the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment TablesDetermination).
The Impairment Tables Determination must be applied as they were effective from

1 January 2012.
Medical eligibility for DSP
On 26 June 2017, the Secretary issued the Applicant a notice pursuant to subsection 63(2) of the Administration Act, requiring the Applicant to provide medical evidence to the Department for the purposes of reviewing her ongoing DSP set out in subsection 27(3) of the Act. If a person in receipt of DSP is given a notice pursuant to subsection 63(2) of the Administration Act (see above at [31]), the Secretary (in assessing the person’s qualification for DSP) must apply the instrument in force under s 26 of the Act on the day the assessment notice was given, namely 26 June 2017.
The instrument in force under s 26 of the Act on 23 May 2017 was the Impairment Tables Determination. As such, the Respondent contended that, in assessing the Applicant’s qualification for DSP as at 17 September 2018, the Impairment Tables Determination must be applied (Exhibit R1, p 4 para 4.14).This was not disputed by the Applicant and the Tribunal decided that this contention was correct based on the fact that the legal instrument had been in place before May 2017.
The Impairment Tables Determination is made under s 26(1) of the Act. The Impairment Tables Determination commenced on 1 January 2012.
Subsection 6(3) of the Impairment Tables Determination states “[A]n impairment rating can only be assigned to an impairment if…the person’s condition causing that impairment is permanent” (in accordance with s 6(4) of the Impairment Tables Determination) and the impairment that results from that condition is, in light of the available evidence, more likely than not to persist for more than two years.
Therefore, if the Applicant’s condition causing impairment is not permanent, the impairment resulting from this condition cannot be assigned an impairment rating.

Subsection 6(1) of the Impairment Tables Determination (see above at [20]) also means that even if the Applicant’s condition causing the relevant impairment is permanent but the impairment resulting from that condition is not likely to last for more than two years, the impairment cannot receive a rating under the Impairment Tables Determination.
Section 8 of the Impairment Tables Determination sets out information that is not to be taken into account in applying the Impairment Tables (see above [24]). In particular, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence, and unless required under the Impairment Tables Determination, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
In Coates and Secretary, Department of Employment and Workplace Relations [2006] AATA 938, at [21]-[22], Deputy President Hack stated:
It is, I think, important to realize that "temporary" is used by Centrelink in this context in a special sense. It is a shorthand way of describing a condition which is not, at that time, capable of being regarded as being permanent. That judgment is to be made on the basis of the material capable of throwing light on the issue of whether the conditions were, at the relevant time, fully documented and diagnosed conditions which had been investigated, treated and stabilised.
It is not to the point that they may have answered that description at a later time. Nor is it to the point, for present purposes, that the point at which the conditions could have been investigated, treated and stabilised at an earlier time had Centrelink acted in a different manner. The Parliament has determined that disability support pensions are to be paid when certain qualifying criteria are satisfied. The evident legislative intent is that disability support pensions be paid only when the disabling condition has reached the stage where it can be regarded as being permanent and having a permanent impact upon normal function as it relates to work performance.
Impairments
The Respondent accepts that at the Cancellation Date, the Applicant had physical, impairments for the purpose of s 94(1)(a) of the Act. With respect to s 94(1)(b), the Applicant’s conditions and resulting impairments are considered below.
Spinal condition
In 2001-2002 the Applicant was diagnosed with degenerative arthritis and obtained treatment for the condition including prescription pain medication, massage and a paced exercise programme. At the time Professor Stephan Schug noted concern about ‘chronification’, but was hopeful the Applicant would return to a more active lifestyle and increase her overall fitness (T6 - T10).
A radiology report dated 17 December 2002 showed slight narrowing of the C3/4 foramina bilaterally, but no other abnormalities were noted in the cervical spine. Similarly, a shallow curvature was noted in the cervico-thoracic junction, but the thoracolumbar spine was otherwise normal (T11).
There is no medical evidence available from January 2003 until September 2013.
The clinical notes from the Applicant’s general practitioner (GP) Dr Sheena Kartha during the period 18 September 2013 to 6 September 2016 make no mention of a spinal condition, although in 2014 the Applicant’s cervical spine was examined in relation to her shoulder pain and associated radiculopathy (T12, pp 119 -122).
Doctor Kartha provided a report dated 11 September 2017 in relation to the Department’s review of her DSP eligibility. In Dr Kartha’s report she diagnosed the Applicant as suffering from a number of conditions, none of which related to her spine. However, she noted that the Applicant presented with bilateral leg pain and was awaiting a CT of the lumbar spine and was being treated with Pregablin. The patient health summary provided with the report does not note any spinal condition (T15, pp 131-134).
In a CT lumbosacral spine report dated 19 January 2018, the Applicant was noted to have (T17, p 144):
Broad-based posterior disc herniations at L3/4, L4/5 and L5/S1 levels with subarticular recess effacement at L3/4 and L4/5 and left sided L4/5 and L5/S1 neural foraminal narrowing which would support a clinical impression of bilateral L4 and L5 radiculopathy.
On 2 February 2018, Dr Kartha referred the Applicant for neurosurgical review due to “Lower back pain since many years, worsening pain…”. Dr Kartha noted that, pursuant to the CT report, the Applicant was suffering from L4/5 radiculopathy with disc bulges

(T17, pp 141-143).
On 22 August 2018, an officer from the Department contacted Dr Kartha by telephone in order to “clarify FDTS and functional impacts.” The officer noted that the prognosis of the spinal condition was “If neurosurgeon [sic] recommends surgery, functional capacity will depend on the outcome.” With respect to planned treatment, it was noted that “Referred to Neurosurgeon [sic] in February 2018 (public system) but have not had a response yet; would need physiotherapy after surgery; and ‘might take time to come back to near normal activities’”. Dr Kartha confirmed that the Applicant was working 20 hours per week and managing symptoms with pain medication (T19, pp 153 -154).
In the Job Capacity Assessment (JCA) report dated 31 August 2018, the assessors, being a physiotherapist with contribution from an accredited exercise physiologist, considered the condition to be fully diagnosed, treated and stabilised because “although customer has been referred to neurosurgeon, this is in the public system and may take some time if treatment is recommended.” The assessors considered that any improvements in functional capacity would not be resolved within two years and that because the condition was longstanding, it was stabilised. The assessor went on to assign an impairment rating of 5 points under Table 4 – Spinal Function, and 0 points under Table 3 – Lower Limb Function of the Impairment Tables (T21, pp 164, 166).
On 2 October 2018, Dr Kartha provided a report in which she diagnosed “lumbar disc herniations with radiculopathy” (T23, p 174). Dr Kartha stated that the diagnosis was confirmed through a CT scan on 19 January 2018, but that it had been an ongoing issue for a long time which had been aggravated through the Applicant’s work as a cleaner (T23, p 174).
Dr Kartha noted that previous treatment involved analgesia and pain specialist reviews and that future treatment involved a referral to a neurosurgeon, but that the Applicant was awaiting an appointment at the Fiona Stanley Hospital. Dr Kartha stated that the condition was deteriorating and would worsen progressively (T23, p 175).
Dr Kartha provided a further report dated 22 May 2019 in which she stated that the Applicant had undergone a CT scan for LS spine and x-rays for the neck and upper back. Dr Kartha stated that the Applicant was treated with analgesics and pain medication including Pregablin, Meloxicam and Panadeine Forte (Exhibit R1, Annexure A – report of Dr Kartha, dated 22 May 2019).
Dr Kartha also provided further medical certificates dated 1 May 2019 in which the Applicant was diagnosed with back pain – lumbosacral join arthritis and disc herniations. Dr Kartha noted that past, current and future treatment involved analgesia and that current treatment also involved physiotherapy (Exhibit R1, Annexure B – medical certificate dated

1 May 2019).
Dr Soma Kain a GP, provided a medical certificate dated 3 May 2019 in which it was noted that the Applicant suffered chronic pain in the neck and lower back, which radiated to the hips. Dr Kain noted degenerative back disease as well as bilateral L4/5 radiculopathy and she noted that the Applicant was on “pain killers” and needed to be seen by a specialist, but could not afford to pay the fees (Exhibit R1, Annexure C – medical certificate dated 3 May 2019).
Other conditions
The clinical notes from 2013/14 disclose that the Applicant presented with pain in her shoulders and arms (T15, pp 131 - 138).
Dr Kartha diagnosed left subacromial bursitis and tennis elbows in her report dated

11 September 2017. However, Dr Kartha stated that they were treated in January 2017 with good effect (Exhibit R1, p 11).
There is no further evidence about the diagnosis, treatment or functional impact of the shoulder conditions. The Respondent contended that they cannot be assigned an impairment rating. The Tribunal agrees as there is insufficient evidence.
The Applicant has been diagnosed with asthma and fibroadenoma, however, there is no further information in relation to these conditions or the functional impact. The Applicant also advised the JCA that these conditions have minimal impact on her day to day functioning (T21, p 169).
Therefore, the Respondent contended that there is insufficient medical evidence and an impairment rating cannot be assigned. Considering all the evidence, on balance the Tribunal agrees with this assessment.
On that basis, the Applicant did not meet the qualification criteria under s 94(1)(b) of the Act at the date of cancellation.
A copy of the Applicant’s Medicare Patient History report provides details of the doctors the Applicant consulted during the period 2 July 2014 to 2 July 2019. The report shows that the Applicant had not consulted a specialist or undergone any diagnostic testing (imaging) during that time period. The Applicant does not appear to have consulted her GP specifically in relation to her spinal condition (as there are specific item codes available for that type of consultation). It is possible that the Applicant consulted her GP in relation to her spine, although there is no objective evidence to support that finding (Exhibit R1, Annexure D – Applicant’s Medicare report).
The Applicant’s PBS records provide details of prescriptions she had filled during the period 2 July 2014 to 2 July 2019. The Applicant was prescribed Pregabalin in 2014, 2015, 2017 and 2018. In January 2018 the Applicant commenced taking paracetamol and codeine, and in November 2018 commenced Meloxicam. The PBS records are consistent with the pharmacy records provided by the Applicant (Exhibit R1, Annexure E – PBS records; Annexure F – Applicant’s pharmacy records).
APPLICANT’S EVIDENCE
The Applicant at the hearing expressed to the Tribunal her concern at the fact that she was originally examined by a government medical officer when she was first granted the DSP in 2003 and that it was not fair that this was not the case when she was reviewed for her eligibility for the DSP in 2018.
The Applicant when asked at the hearing about a referral to a neurosurgeon she said that she was still waiting for an appointment as she was a public patient but she only considered the referral to obtain a second opinion.
The Applicant said at the tribunal hearing that one of the reasons for her only having prescribed medication on an intermittent basis was that she did not want to poison herself with excessive medication.
The Applicant expressed to the Tribunal considerable frustration at the fact that she had always “done the right thing” whereas there are many others who are cheating the system. The Tribunal acknowledged her comment but it was made clear that this would have no bearing on the decision to be made.
The Applicant did not dispute the Respondent’s case and she did not require a rest break from sitting during the hearing which lasted an hour. The Tribunal noted that she exhibited no apparent physical discomfort during that period.
CONSIDERATION
The Respondent accepted that the Applicant’s spinal condition was fully diagnosed as per the CT lumbosacral spine report dated 19 January 2018 and Dr Kartha’s referral letter dated 2 February 2018 (T17). The Tribunal accepts this as the medical evidence confirms the condition.
While the Applicant was diagnosed with “degenerative arthritis” and received some treatment in 2001 and 2002 there is no evidence regarding this condition or its treatment during the period 2003 to 2017. Furthermore, in September 2017, Dr Kartha provided a report in which she diagnosed a number of conditions none of which related to the Applicant’s spine.
In fact, it was only in early 2018 that the Applicant’s spine was investigated and referred to a neurosurgeon for opinion and management. On 2 October 2018, Dr Kartha stated that the Applicant’s spinal condition was only confirmed on 19 January 2018, but that it had been an ongoing issue for a long time.
While the Applicant has been prescribed pain medication relatively consistently since 2014, it is not clear whether this was prescribed in relation to the Applicant’s spinal condition given the available clinical notes, or that it was prescribed predominately in relation to her shoulder condition since 2013. However, the Respondent noted that in more recent medical reports (provided after the date of cancellation), Dr Kartha and

Dr Kain indicate that the Applicant’s spinal condition has been treated with pain medication.
The only treatment that the Applicant appears to have undertaken in relation her spinal condition since 2002 is to take prescribed pain medication (on an intermittent basis). It was only in January 2018 that the Applicant’s general practitioner considered further treatment options including neurosurgical review. Whether this was due to the Applicant not raising her spinal condition as an issue, or because the Applicant’s GP was satisfied that it should be treated with a rolling prescription of pain medication is unclear.
Nevertheless, it is clear from the above evidence that there has been very limited treatment of the Applicant’s spinal condition since 2002. A referral for review by a neurosurgeon was made in January 2018 for the first time, but as noted by Dr Kartha the Applicant was still awaiting an appointment at the date of cancellation (see report of

Dr Kartha dated 2 October 2018 – T23, p 174). Dr Kartha noted that the neurosurgeon may recommend surgery, which would then require rehabilitation in the form of physiotherapy.
Accordingly, the Tribunal notes and accepts that as at the date of cancellation, future treatment was planned and the Applicant had not undertaken all reasonable treatment. It follows that her spinal condition was not fully treated or fully stabilised at the date of cancellation. The resulting impairment therefore cannot be rated under the Impairment Tables Determination.
Taking all the evidence into account, the Tribunal has decided that the spinal condition is not fully diagnosed, treated and stabilised as there is still future treatment pending.
Continuing inability to work
As the Applicant is not considered to satisfy s 94(1)(b), it is not necessary for the Tribunal to consider whether she has a continuing inability to work under s 94(1)(c).
CONCLUSION
Having considered the Respondent’s case and the Applicant’s response, the Tribunal determines that the Applicant did not satisfy s 94(1)(b) of the Act at the time of the cancellation of her DSP on 17 September 2018.
DECISION
For the reasons outlined above the Reviewable Decision of the 5 February 2019 is affirmed.

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

.............................[sgd]...........................................
Associate
Dated: 23 December 2019

Date(s) of hearing: 13 November 2019

Applicant: In person

Counsel for the Respondent: Ms Sarah Dinkha

Solicitors for the Respondent: Centrelink Legal Services Branch

[2019] AATA 5544

23 December 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Standing

Date(s) of hearing:	13 November 2019
Applicant:	In person
Counsel for the Respondent:	Ms Sarah Dinkha
Solicitors for the Respondent:	Centrelink Legal Services Branch