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

Russell and Secretary, Department of Social Services (Social services second review) [2021] AATA 1921 (25 June 2021)
Division:GENERAL DIVISION
File Number:2020/4311
Re:Matthew Russell
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:25 June 2021
Place:Brisbane

The Administrative Appeals Tribunal sets aside the decision of the Social Services & Child Support Division of the Tribunal dated 19 May 2020 and substitutes a decision that the Applicant met the requirements of section 94(1) of the Social Security Act 1991 (Cth) and was qualified for Disability Support Pension at the date of his claim on 2 August 2019.
...............[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 – continuing inability to work – decision under review set aside and substituted
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
25 June 2021
INTRODUCTION

On 2 August 2019, Mr Matthew Russell (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: “Club foot, leg length discrepancy 5cm, scoliosis, back pain, hip pain and foot/ankle pain.”[2]
[1] Exhibit 1, T Documents, T17, pages 77-107, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T77, page 100, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 1 November 2019,[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T23, pages 125-126, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision and on 12 December 2019 an Authorised Review Officer (ARO) affirmed the decision. The ARO found that only the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised and could be assigned 5 points under Table 3 of the Impairment Tables.[4]
[4] Exhibit 1, T Documents, T26, pages131-137, 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). On 19 May 2020, the SSCSD affirmed the decision to refuse his claim for DSP.[5]
[5] Exhibit 1, T Documents, T2, pages 7-13, 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 dated 26 June 2020.[6] The Applicant was granted an extension of time to make his application for review until 10 July 2020, being the day, the application was received in the post by the Tribunal.
[6] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 3 March 2021, 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) Act1999 (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 2 August 2019, being the date, the Applicant lodged his claim for DSP, and ending 13 weeks later on 1 November 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 for the purpose of the claim for DSP in question consists of lower limb deficiencies[21] and a chronic pain condition.[22]
[20]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraph 37.
[21]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraphs 41-42.
[22]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 7-10, paragraphs 43-49.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and
2. if so, did the Applicant have a continuing inability to work?
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
At Hearing, the Applicant gave evidence under affirmation. The Tribunal considers that the Applicant was open with his answers to the questions he was asked and was forth coming in providing his evidence. The Tribunal accepts that the Applicant’s chronic pain and lower limb conditions limit his mobility and affects his ability to undertake daily activities.
Chronic pain condition
In a medical report dated 13 March 2015, Dr Jeff Ling, orthopaedic specialist - foot, ankle and trauma, noted the following:[23]
… Recently he started to develop lower back pain and this is almost certainly due to his leg length discrepancy of approximately 5 cm. ….
… I think the other significant problem is his lower back pain due to the leg length discrepancy. ….
[23] Exhibit 1, T Documents, T4, pages 54-55, Report of Dr Jeff Ling.
On 25 January 2019, Dr Tony Girgis, general practitioner referred the Applicant to Mr Rob Satchell, physiotherapist seeking review of the Applicant’s capacity for employment. Dr Girgis provided the following background:[24]
Thank you very much for seeing [the Applicant] age, 45yrs with chronic scoliosis and hip pains secondary to left leg length discrepancy, secondary to various procedures for left club foot since childhood.
….
[24] Exhibit 1, T Documents, T5, page 56, Referral from Dr Tony Girgis to Coast Allied Health Physiotherapy.
In a report dated 11 February 2019, Mr Satchell provided:[25]
[The Applicant’s] back and hip pain is largely biomechanical due to his leg length discrepancy and ankle joint limitations. This pain is aggravated by walking, squatting and standing. Following the assessment today he reported his back and hip pains had increased. He says that usually when he goes to work he pushes himself and can get the work done, but ends up paying for it by taking all weekend to recover. He tends to try and level his feet up with large innersoles at work, but tries to avoid shoe alterations due to fear of injuring himself – he loses awareness of his foot position with these on.
As for his capacity for employment, [the Applicant] can physically do the work at this point, but he suffers an increase in pain quite quickly.
[25] Exhibit 1, T Documents, T6, pages 57-58, Medical Report of Mr Rob Satchell.
Mr Satchell reported on 24 July 2019, that the Applicant’s condition had not improved having started exercises.[26]
[26] Exhibit 1, T Documents, T16, page 76, Medical Report of Mr Rob Satchell.
In a report dated 16 July 2019, Dr Arnold Suzuki, orthopaedic surgeon relevantly provided:[27]
Thank you for referring [the Applicant] to me for a second opinion. [The Applicant] is a pleasant 45-year-old male that has a history of severe left club foot that required triple arthrodesis at the age of 16. He has a left lower limb that is short by 5 cm and this has also resulted in lower back pain. He has been seen in the past by Dr Ling and also presented at the Prince of Wales Department meeting. The consensus at the time, as I am told by the patient, was not to intervene with a surgical lengthening. This occurred 4 years ago and he has not sought any further opinions since and is managing without a heel raise.
[The Applicant] used to work as a roofer and labourer ….. He is unable to site (sic) for longer than 1 hr before his backpain causes him severe pain and he is unable to work more than a couple of hours before he needs to lie down. He has attempted alternative forms of work but he is unable to perform any meaningful and stable work due to his chronic pain and skeletal deficiencies. ….
[The Applicant] has pain that comes from his lumbar spine and can radiate down his lower limbs. He has scars around his left foot consistent with extensive surgery for fusion and talipes. He has a postural scoliosis to compensate for the leg length discrepancy. He has a 5 cm leg length discrepancy derived from below the knee and is from both the tibia and the foot. His left foot is smaller than the opposite side. The overall girth of the left lower limb smaller than the opposite side. He has full range of motion to the knee and hip.
I agree with Dr Ling and the consensus at Prince of Wales Hospital that no intervention should be performed……..
[The Applicant] is in a difficult situation and ultimately, I feel a lengthening procedure can address the leg length discrepancy but would not likely help with his back pain and left ankle/foot pain.
I feel serious consideration for [the Applicant] in regard to social support in terms of a disability pension should be entertained. I do not feel that he can return to his previous work in any capacity and he would need to retrain and reskill but even with that in mind he would still have the backpain and left foot/ankle pain that would not be fixed with surgery. This would likely cause a serious obstacle for him to find any form of stable work. [The Applicant] has the intention of working and tried different forms of “small jobs” but he is unable to work for longer than an hour. …..
[27] Exhibit 1, T Documents, T14, pages 73-74, Report of Dr Arnold Suzuki.
In a letter to Centrelink dated 3 September 2019, Dr Pauline Yuan, general practitioner provided:[28]
Thank you for your assistance with [the Applicant]. He has been a patient of mine for about 7 months. He has regularly attended appointments for review of his chronic pain which is primarily due to his leg length discrepancy. As a child he had left sided clubfoot and underwent multiple surgeries, including a triple arthrodesis, resulting in a leg length discrepancy of approximately 5 cm and subsequent scoliosis and osteoarthritis. Due to his biomechanics he has since suffered from pain not only in his ankle, but also affecting his back, hip and knee. He has trailed (sic) multiple interventions including heel raisers, physiotherapy and has had multiple orthopaedic consults.
After many investigations and consults, treatments have been exhausted short of surgery. Two independent orthopaedic surgeons have reviewed his case, and find that leg lengthening surgery is risky and may not improve his pain or quality of life. His condition is stabilised and though he remains independently mobile, he is constantly riddled with pain. This unfortunately limits his ability to work as he does not tolerate standing or sitting for periods of time. I believe that [the Applicant] is an eligible candidate for disability pension and am happy to be contacted should you need any further information.
[28] Exhibit 1, T Documents, T19, page 110, Letter from Dr Pauline Yuan.
The Applicant attended a face to face job capacity assessment (JCA) on 22 October 2019 with an Assessor whose professional qualification is listed as a registered occupational therapist[29]. Following that assessment, the Assessor called Dr Yuan seeking further information. The Assessor provided the following details on an Additional Medical Evidence for Disability Support Pension Record form:[30]
B. Information provided by the health professional
Diagnosis: Spinal disorder
Prognosis/nature of condition: FDTS
Symptoms/functional impacts: Pc to Dr Pauline Yuan 25.10.2019. Dr Yuan said [the Applicant] would be unable to sustain a sedentary or stationary position of more than 14 hours per week due to his severe back pain and inability to sit adopting reasonable/functional posture for more than 10 minutes at a time. Dr Yuan said that [the Applicant] finds it severely difficult to sit in reasonable comfort for any length of time and is observed to sit asymmetrically whenever she sees him.
Post/current/planned treatment: During a telephone call on 25.10.2019 Dr Yuan said [the Applicant] manages his pain probably as best he can most likely achieve. Dr Yuan did not believe he would gain much out of a pain management course and did not feel this would significantly improve his pain or function.
Other details: Dr Yuan said she did not believe [the Applicant] continued to use substances as a means of pain management.
[29] Exhibit 1, T Documents, T21, page 113, JCA Report.
[30] Exhibit 1, T Documents, T20, pages 111-112, Additional Medical Evidence for Disability Support Pension Record.
The Assessor produced a JCA report dated 29 October 2019 finding that the Applicant’s spinal condition, being chronic pain affecting the back, hip and knee was fully diagnosed, fully treated and fully stabilised and could be assigned 20 impairment points under Table 4 of the Impairment Tables. The Assessor also found that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised and could be assigned 5 impairment points under Table 3 of the Impairment Tables.[31]
[31] Exhibit 1, T Documents, T21, pages 113-121, JCA Report.
The Applicant attended a face to face Disability Medical Assessment with a government-contracted doctor on 31 October 2019.[32] The doctor agreed that the Applicant’s spinal condition was fully diagnosed and had become a chronic pain condition that requires pain specialist care. The doctor formed the opinion that the condition was not fully treated and fully stabilised as during the interview the Applicant confirmed that he was referred to a pain specialist by his general practitioner but refused to attend as he was asked about his current drug use on the questionnaire.[33] The doctor agreed that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised and could be assigned 5 impairment points under Table 3 of the Impairment Tables.[34]
[32]    Exhibit 1, T Documents, T22, pages 122-124, Disability Medical Assessment.
[33]    Exhibit 1, T Documents, T22, page 122, Disability Medical Assessment.
[34]    Exhibit 1, T Documents, T22, page 123, Disability Medical Assessment.

The Applicant was referred to a pain specialist by Dr Robert Scanlan, general practitioner and attended an appointment with Dr Frank Thomas, specialist anaesthetist and pain medicine physician who provided a report dated 21 November 2019.[35] Dr Thomas provided:
[35] Exhibit 1, T Documents, T25, page 128-130, report of Dr Frank Thomas.
[The Applicant] describes constant pain affecting his left foot primarily around his medical malleolus and dorsally over the ankle joint. There are some areas of decreased sensation in his foot but no areas of allodynia or hyperalgesia.
He also describes low back pain predominantly in the middle but when pointing to discrete areas, this is to the left of midline.
[The Applicant] said he has found paracetamol and anti-inflammatory drugs ineffective. He does not want to try opioids but I have explained to him that we no longer prescribe them for chronic non-cancer pain anyway. He does not have neuropathic pain so anti-neuropathic medications would be inappropriate. He has attended physiotherapy and most recently had an assessment by Rob Satchell, physiotherapist, who identified that previous physiotherapy and exercises temporarily aggravated his pain. [The Applicant] has not tried a TENS machine. He has not seen a pain specialist before. He has not tried any intervention treatments nor seen a specialist pain psychologist.
……
On examination his left lower limb is shorter than his right lower limb. He has considerable muscle wasting affecting his left leg and to a lesser extent his left thigh. He has a thoracolumbar scoliosis convexed to the left. Spinal flexion is reasonable. Extension aggravates the pain and he is very tender over the lower lumbar facet joints and pointed to facet joints to the left of the midline as the primary source of his pain. He has very limited ankle movements and no subtalar joint movement. There are no areas of allodynia or hyperalgesia over his foot as mentioned above.
In terms of improving [the Applicant’s] pain, there are no curative procedures. I note that orthopaedic surgeon, Dr Arnold Suzuki, stated that a leg lengthening procedure was possible but this would have no impact on his foot pain and in all likelihood would not improve his back pain. I concur with this opinion.
In terms of pain management techniques, it would be worth undertaking diagnostic injections to rule in/out facet arthropathy as the cause of [the Applicant’s] back pain. If this proved to be the case he would be suitable for radiofrequency denervation treatment and that could potentially eliminate his back pain and not require the use of medication.
There are no similar procedures available for his foot pain. As [the Applicant] does not have private health insurance I recommend he be referred to one of the Queensland Health pain clinics for consideration of addressing his potential facetogenic pain. I would also recommend he be assessed by a pain psychologist during that visit which would have the potential of him proceeding to a series of sessions to develop CBT/ACT skills to help manage his pain.
I do not recommend the introduction of any new pharmacotherapy.
He would be highly advised to cease smoking as this is well known to contribute to back pain. [The Applicant] did not mention that the marijuana decreased his pain, it simply helps him sleep, and current evidence suggest that medical marijuana has no role in the management of chronic pain.
I recommend that [the Applicant] try a TENS machine with a view to obtaining his own machine if he finds it beneficial.
I am not aware of any other options that are available to potentially help [the Applicant] manage his pain.
At the Hearing the Applicant told the Tribunal that:
·He understands the DSP points system but every doctor says he should get the pension, but the computer says no.
·He has been dealing with his pain since he was a child, he cannot remember his first four operations.
·He knows how to manage his time so that he can still function the best way he can.
·The only way he gets relief from his back pain is to hang upside down and straighten his back out.
·He does not think a TENS machine will help the kind of pain he has.
·His chronic back pain started around 15 years ago.
·When he had the surgery at 16 they said that he would be lucky to be able to walk on his foot by the time he was 40. He has passed the age of 40 and considers he is doing well given the circumstances.
·He moved from the South Coast to near Agnes Waters in around September 2019 because he could no longer handle the cold weather.
·When asked why Dr Yuan had referred him to a pain management clinic when she expressed the view that it would be of little assistance, that Dr Yuan had given him the referral because of advice he had been given by Centrelink. Centrelink had said that was the hurdle he needed to overcome.
·That Dr Yuan had told him that a pain management clinic would be a waste of time.
·That Dr Yuan referred him to the Shell Harbour Pain Management Clinic who sent him forms to fill out. He said he called them to say he wanted to fill in the forms at the clinic when he arrived as he did not want to put all his personal details in the post. This was not standard practice and they would call him back, they did not call him back and he did not follow up as he does not think a pain management clinic would help him.
·His failure to attend the pain management clinic had nothing to do with the questions about drug use but was about not wanting to provide so many personal details in the post. The clinic however wanted to make an assessment without having to see him.
·His new general practitioner Dr Robert Scanlan referred him to the pain management specialist at his request because of the Centrelink process. He did not give a view as to whether it would help.
·During the Relevant Period he could not sit for at least 10 minutes.
·He only goes out once a fortnight and spending time in the car is torture, he has to take regular breaks or if he pushes through, the pain is extremely bad.
In relation to questions asked by the Respondent on cross-examination, the Application said:
·He did not have the diagnostic injections suggested by Dr Thomas because they are spinal injections. Putting things into a spine that is already badly damaged is a risk he did not want to take.
·He disagreed with Dr Thomas’ view that the injections and follow up treatment may eliminate his back pain. It is impossible to relieve his back pain totally as his leg is 5cm shorter than the other and he has scoliosis as a result.
·He had not seen a pain psychologist as suggested by Dr Thomas because he does not think they could tell him anything different to help. He has techniques and it is all about focus.
·A TENS machine will not work on a damaged back and foot full of steel.
The Respondent contends that the Applicant had not undertaken reasonable treatment including consultation with a pain specialist or pain psychologist and appropriate trials of diagnostic injections such that his chronic pain condition could not be considered fully treated and fully stabilised during the Relevant Period.[36]
[36] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 44.
The Respondent further contended that in the absence of reasonable treatment, there is no evidence that undertaking such treatment would not result in significant functional improvement within the next two years, but in fact to the contrary the evidence from Dr Thomas was that diagnostic injections and subsequent radiofrequency denervation treatment could potentially eliminate the Applicant’s back pain. The Respondent also contended there is no evidence that there was a compelling reason for the Applicant not to undertake such treatment.[37]
[37] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 44.
The Respondent submitted that it appears that the Applicant chose not to engage with treatment from a pain specialist during the Relevant Period as he did not wish to complete a questionnaire which asked him about his drug use. The Respondent contended that there was no objective consideration of the cost, availability, success rates, risks and potential functional improvement associated with any proposed treatment as the Applicant did not get to the stage of the consultation where various treatments were recommended. Accordingly, the Respondent contended that the Applicant did not have a compelling reason to refuse such treatment.[38]
[38] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 9, paragraph 48.
At Hearing the Respondent submitted that the main issue for the Tribunal is whether the Applicant’s chronic pain condition was fully treated and fully stabilised during the Relevant Period. The Respondent further submitted that if the Tribunal was satisfied of that point, then the Respondent agreed that during the Relevant Period the Applicant satisfied the requirements to be assigned 20 impairment points under Table 4 of the Impairment Tables.
At the conclusion of the Hearing the Tribunal issued a direction providing the Applicant with the opportunity to provide a further report from Dr Yuan, his treating practitioner during the Relevant Period. The Respondent was provided with an opportunity to make submissions in reply to any further evidence provided by the Applicant. In compliance with the Direction the Applicant provided a letter from Dr Yuan dated 22 March 2021 and the Respondent filed an amended supplementary submission dated 18 May 2021.
In the letter dated 22 March 2021, Dr Yuan provided:
I am a general practitioner who cared for [the Applicant] in 2019. At the time he was regularly attending appointments for review of his chronic pain which is primarily due to his leg length discrepancy. As a child he had left sided clubfoot and underwent multiple surgeries, including a triple arthrodesis, resulting in a leg length discrepancy of approximately 5 cm and subsequent scoliosis and osteoarthritis. Pain effects his ankle, back, hip and knee.
On 13/02/2019, our first appointment, I referred [the Applicant] to a pain specialist as well as a physiotherapist in attempts to help support his pain management. At that time, managing his chronic pain from complex history (as above), I sought specialist advice for input. That was well prior to discussion in October 2019 with Centrelink. In my opinion, attending a pain management clinic or pain management specialist may benefit the patient, but not significantly to improve his ability to work. After reading the report from Dr Thomas, from 21/11/2019, I agree there are no curative procedures and possible interventions may help his symptoms, but I cannot comment as to how much function or capacity he may regain, as I am not a practitioner of those specific interventions.
I want to note that [the Applicant] has trialled multiple interventions in the past and after many investigations and consults, treatments have been exhausted short of surgery. Two independent orthopaedic surgeons have reviewed his case, and find that leg lengthening surgery is risky and may not improve his pain or quality of life. When I last saw [the Applicant], 2 years ago, his condition was stable and though he remained independently mobile, he is constantly riddled with pain. This unfortunately limits his ability to work as he does not tolerate many of the required physical abilities/functions needed across a range of occupations.
By way of supplementary submissions dated 18 May 2021, the Respondent continued to rely on the Statement of Facts & Contentions filed on 10 December 2020[39] and in response to the report of Dr Yuan provided:
Dr Yuan’s report dated 22 March 2021 notes she referred the Applicant to a pain specialist after her first appointment with the Applicant on 13 February 2019 which was well prior to her discussion with Centrelink in October 2019. Dr Yuan opines that whilst attending a pain management clinic or pain management specialist may benefit the Applicant it would not do so to a level that enables him to work.
This evidence is at odds with Dr Frank Thomas’ evidence. The Secretary submits that Dr Thomas is clearly of the view that further treatments remain available to the Applicant which, if undertaken, may result in significant functional improvement (for more detail see (c) hereof).
The Secretary submits that Dr Thomas’ evidence should be given greater weight in circumstances where he is an anaesthetist and a pain medicine physician and Dr Yuan is a general practitioner. As a pain specialist Dr Thomas is best placed to comment on how much functional capacity may be regained by the treatments recommended by him, and not Dr Yuan. This is made clear by Dr Yuan’s concession that she is not a practitioner who specialises in the specific interventions recommended by Dr Thomas and hence her decision not to comment on how much functional capacity may be gained by treatments recommended by Dr Thomas.
In that regard, the Secretary maintains that given the extensive recommendations made by Dr Thomas as to further treatments available to the Applicant, and his opinion that if undertaken those treatments would result in significant functional improvement, the Applicant’s chronic pain condition was not fully diagnosed, treated and stabilised during the qualification period.
….
That being said, the Secretary submits that Dr Thomas is of the view that there are other – non-surgical – forms of treatment available to the Applicant that may result in significant functional improvement. These include diagnostic injections and referral to a pain clinic as well as a pain psychologist.
Dr Thomas makes clear that undertaking diagnostic injections would rule in or out the cause of the Applicant’s back pain which may lead to further treatment that “could potentially eliminate his back pain”. Dr Thomas also recommends the cessation of smoking as it is known to contribute to back pain.
The Secretary contends that when reading Dr Thomas’ report in its entirety it is clear that he is of the view that there remains some forms of conservative treatment available to the Applicant which could result in significant functional improvement.
[39] Exhibit 2, Secretary’s Statement of Facts & Contentions.
Based on medical evidence before the Tribunal there is no doubt that the Applicant’s chronic pain condition resulting from his leg length discrepancy and subsequent scoliosis which affects his back, hips and knees was fully diagnosed at the Relevant Period. Whether this condition was fully treated and fully stabilised during the Relevant Period is where the main divergence in views between the parties lie.
In considering the evidence before the Tribunal it was clear that at the time of the JCA Report of 29 October 2019, Dr Yuan’s evidence was in fact as recorded by the Assessor, that the Applicant’s pain condition was fully treated and fully stabilised and that while she had referred him to a pain clinic she did not consider that it would significantly improve his ability to work. Dr Yuan noted that the Applicant had trialled multiple interventions and that treatments had been exhausted.
The Applicant’s evidence at Hearing was that he had not refused to attend a pain management clinic rather he had concerns in relation to the provision of personal information through the post and wanted to have a consultation regarding the program. The Tribunal accepts the evidence of the Applicant, as at all stages throughout the evidence before the Tribunal the Applicant has been open about his use of marijuana to assist with his pain and sleep. Further the Tribunal considers that the Applicant’s evidence that his reasons for not following up with the pain management clinic being because he did not believe it would be of assistance was consistent with the opinion held by Dr Yuan.
The Applicant told the Tribunal that although he had understood from Dr Yuan that attendance at a pain clinic would be unlikely to improve his functional capacity, he asked his new general practitioner (upon moving states) to refer him to a pain specialist in an attempt to try and meet the eligibility requirements for DSP.
Dr Thomas provided in his report of 21 November 2019 that he agreed that the Applicant was not a candidate for leg lengthening surgery. Dr Thomas recommended further treatment that could be tried to assist the Applicant manage his pain. Such treatment included diagnostic injections, which may result in radiofrequency denervation treatment of which could potentially eliminate his back pain, attendance at a pain clinic and the use of a TENS machine.
Having reviewed Dr Thomas’ report, Dr Yuan maintained her view that a pain management clinic would not improve the Applicant’s function to a point that would significantly improve his ability to work and did not comment on what functional improvement may be derived should the other treatments recommended by Dr Thomas be undertaken by the Applicant and prove to offer some pain relief.
Dr Thomas put forward the treatment options as options that may help the Applicant manage his pain, however the Tribunal notes that he did not provide any opinion in relation to whether such treatments if effective would result in a significant functional improvement to a level that would enable him to undertake work in the following two years. Dr Thomas indicated that the diagnostic back injections may lead to treatment that may eliminate the Applicant’s back pain, however he did not comment on what that would mean for the overall functionality improvement for the Applicant. Nor did Dr Thomas provide any view in relation to the likelihood of such injections leading to the diagnosis of face arthropathy.
The Tribunal notes that the discrepancy in the views being put forward are that, Dr Yuan’s view is that the Applicant had engaged in a number of different treatments and that further treatment is unlikely to result in a significant functional improvement for the Applicant, yet Dr Thomas made recommendation for further treatment that could be undertaken by the Applicant. The Respondent formed the view and contended that such treatment could result in significant functional improvement, however there is no supporting medical evidence in that regard. The Tribunal notes that surgical intervention is not recommended for the Applicant and as such regardless of any further treatment for his pain, the source of that pain being his leg length discrepancy and resulting scoliosis cannot be cured nor can his biomechanical issues be rectified by conservative techniques.
As such, the Tribunal accepts that there may be further conservative techniques that could be undertaken by the Applicant that may assist him to manage his pain. However, the Tribunal finds that in the absence of any medical evidence to the contrary, that the further treatment recommended by Dr Thomas cannot reliably be expected to result in a significant functional improvement to a level enabling the Applicant to undertake work in the following two years.
Therefore, based on the evidence before it, the Tribunal finds that the Applicant’s chronic pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned an impairment rating under Table 4 of the Impairment Tables.
Noting Dr Yuan’s evidence that the Applicant could not sit for more than 10 minutes during the Relevant Period, the Tribunal finds that the Applicant’s chronic pain condition can be assigned 20 impairment points under Table 4 of the Impairment Tables. This finding is consistent with the Respondent’s submission at Hearing.
Lower limb condition
The Respondent accepts that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 5 impairment points under Table 3 of the Impairment Tables. The Respondent relied on the following:[40]
(a) On 16 July 2019, orthopaedic surgeon Dr Suzuki reported the Applicant’s leg length discrepancy of 5cm did not warrant further surgery (T14, 73-74). Dr Suzuki stated “[The Applicant] states that wearing a 5cm heel rise is dangerous being a labourer and I agree with this as would be a liability to his employer especially if he needs to be on rooftops”.
(b) On 3 September 2019, general practitioner Dr Yuan reported the Applicant had undergone multiple surgeries as well as trialled multiple interventions such as heel raises, physiotherapy and various orthopaedic consults (T19, 110). Dr Yuan reported that “his condition is stabilised and though he remains independently mobile, he is constantly riddled with pain. This unfortunately limits his ability to work as he does not tolerate standing or sitting for periods of time”.
[40] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 41.

The Respondent submitted that the Applicant’s lower limb condition did not attract an impairment rating greater than 5 impairment points under Table 3 of the Impairment Tables as Dr Yuan reported that the Applicant was independently mobile.[41]
[41] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 7, paragraph 42.
At Hearing the Applicant told the Tribunal that he can do his own shopping and mobilise himself and although he would be able to seek help for these things he does not want to be a bigger burden than he has to be. The Applicant told the Tribunal that his lower limb condition is not going to get better and any further surgery would lead to fusing of his foot and would not be scheduled for at least 10 years.
Based on the medical evidence before it, the contentions of the Respondent and evidence provided by the Applicant, the Tribunal finds that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised at the Relevant Period and can be assigned 5 impairment points under Table 3 of the Impairment Tables.
Continuing Inability to Work
As the Tribunal has found that the Applicant has a total of 25 impairment points it must now consider whether the Applicant had a continuing inability to work pursuant to section 94(1)(c) of the Act.
Section 94(2) of the Act sets out the requirements that must be met for a person to have a continuing inability to work for the purposes of section 94(1)(c) of the Act. It requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support; and
(b)be unable to work for at least 15 hours per week independently of a program of support within the next two years; and
(c)be unable to participate in a training activity during the next two 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 program of support within the next two years.
As the Applicant has been assigned 20 points under Table 4 of the Impairment Tables, he has a severe impairment[42] and is not required to have participated in a program of support.
[42] Section 94(3B) of the Act.
In the JCA Report dated 29 October 2019 the Assessor formed the view that the Applicant’s capacity for work within 2 years with intervention was 8-14 hours per week. The rationale provided by the Assessor was:[43]
[The Applicant] has a permanent condition which can have an impact on his pain levels, physical tolerances, endurance and functional ability. A baseline work capacity of 8-14 hours per week has been recommended due to the implications on obtaining and sustaining employment.
Given the impacts of [the Applicant’s] condition, it is anticipated that with disability specific intervention (DES-DMS), including specialised job search, employment support and vocational assessment/counselling his work capacity will remain stable at 8-14 hours per week.
[43] Exhibit 1, T Documents, T21, pages 119-120, Job Capacity Assessment Report.
The view formed by the Assessor was consistent with that provided by both the Applicant’s general practitioner and treating specialists.
During opening submissions at Hearing, the Respondent submitted that should the Tribunal be satisfied that the Applicant’s chronic pain condition was fully diagnosed, fully treated and fully stabilised then it accepts the opinion of the JCA in relation to the Applicant’s work capacity.
Based on the evidence before the Tribunal and the concession made by the Respondent at Hearing, the Tribunal finds that the Applicant met the requirements of section 94(1)(c) of the Act at the Relevant Period.
CONCLUSION
Based on the medical evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act which included chronic pain and lower limb conditions.
Based on the evidence before it, the Tribunal finds that the Applicant’s:
·chronic pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 20 points under Table 4 of the Impairment Tables; and
·lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned 5 points under Table 3 of the Impairment Tables.
The Tribunal finds that at the Relevant Period the Applicant’s impairments attracted 25 points under the Impairment Tables and that the requirements of section 94(1)(b) of the Act were met.
Based on the evidence before it, the Tribunal finds that the Applicant had a continuing inability to work at the date of his claim for DSP and therefore met the requirements of section 94(1)(c) of the Act.
DECISION
The Tribunal sets aside the decision of the SSCSD dated 19 May 2020, and substitutes a decision that the Applicant met the eligibility requirements of section 94(1) of the Act and was qualified for DSP at the date of his claim on 2 August 2019.

I certify that the preceding 69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

....................[SGD]......................................
Associate
Dated: 25 June 2021

Date of Hearing:
Final Submissions:

3 March 2021

27 May 2021

Applicant: By telephone

Solicitors for the Respondent:
Mr Christopher Murphy

Services Australia

[2021] AATA 1921

25 June 2021

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