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

Saleeba and Secretary, Department of Social Services (Social services second review) [2020] AATA 4862 (3 December 2020)
Division:GENERAL DIVISION
File Number: 2019/7639
Re:Eileen Saleeba
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:3 December 2020
Place:Perth

The authorised review officer’s decision dated 6 August 2019, as affirmed by the AAT1 on 28 October 2019, is affirmed.
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Senior Member Dr M Evans-Bonner
CATCHWORDS
SOCIAL SECURITY – pensions, allowances and benefits – disability support pension – whether the Applicant met the eligibility requirements for disability support pension – qualification period – assigning impairment ratings – Impairment Table 4 – lower back and neck conditions – mental health conditions – numerous other medical conditions – Applicant found not to meet eligibility requirements – Reviewable Decision affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – ss 23(1), 26, 94(1), 94(1)(a), 94(1)(c), 94(2), 94(2)(aa), 94(3B), 94(5)
Social Security (Administration) Act 1999 (Cth) – s 179(2)(a), Sch 2 cl 4(1)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) – ss 3, 5(2), 5(2)(b), 5(2)(c), 6, 6(4), 6(5), 6(6), 10, 11, Table 1
CASES
Gallacher v Secretary, Department of Social Services (2015) 68 AAR 1
Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252
Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133

REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
3 December 2020
BACKGROUND

The Applicant is seeking review of a decision of the Social Services and Child Support Division (AAT1) in the General Division (AAT2) of the Administrative Appeals Tribunal (Tribunal).
She lodged a claim on 19 July 2018 for a disability support pension (DSP) dated

17 July 2018 (T79/275–312; T103/397). In her claim she listed her medical conditions as (T79/301):
Chronic arthritis
Anxiety
Depression
Nerve damage
Deaf in one ear
Many other conditions
In response to the question, “[d]o you believe that your life expectancy may be significantly reduced within the next few years because of your condition?”, the Applicant ticked the box marked “[y]es” and wrote (T79/301):
Chronic pain in joints
Anxiety for number of years. PTSD
On 11 December 2018 the Applicant attended a video conference job capacity assessment (JCA) with an assessor who was a registered psychologist. The assessor produced a JCA report with a submitted date of 3 January 2019 (T82/317).
In this report the assessor recommended a rating of 10 points for the Applicant’s spinal disorder under Table 4 – Spinal Function (T82/328) of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables). The assessor also found that the Applicant’s hypertension condition should be rated zero points under Table 1 - Functions Requiring Physical Exertion and Stamina of the Impairment Tables on the basis that there was “no functional impact on activities requiring physical exertion or stamina due to this condition” (T82/328).
The assessor considered other medical conditions from which the Applicant was suffering. These included trigeminal neuralgia, a left retinal detachment, post-traumatic stress disorder, arthritis, partial hearing loss, right wrist and hand pain, chronic sinusitis and

right-sided maxillary polyps, pelvic floor pain and urinary tract infection. However, the assessor believed that these conditions were not fully diagnosed, treated and stabilised and therefore could not be afforded an impairment rating (T82/319-325).
Further, in relation to the Applicant’s work capacity, the assessor evaluated the Applicant as having a baseline work capacity of 8 to 14 hours per week of light less skilled work and a capacity for work within two years with intervention of 15 to 22 hours per week of light less skilled work (T82/330).
However, on 3 January 2019, the Applicant’s claim for a DSP was rejected by Centrelink (T83/334–335) (Original Decision). The basis for the rejection was that the Applicant was not eligible for a DSP because she did not have an impairment rating of at least 20 points under the Impairment Tables.
The Applicant asked Centrelink to review the Original Decision. However, on 6 August 2019, an Authorised Review Officer (ARO) of Centrelink wrote to the Applicant to advise her that the ARO had found the Original Decision to be correct, and therefore her review was unsuccessful (T95/357-364) (ARO Decision).
On 30 August 2018 the Applicant lodged an application seeking review of the ARO Decision in the AAT1 (T2/4). The Applicant was also unsuccessful at the AAT1, with the AAT1 affirming the ARO Decision on 28 October 2019 (T2/3-10).
The AAT1 decision of 28 October 2019, which affirmed the ARO Decision of 6 August 2019, is the Reviewable Decision that is currently before the AAT2 (s 179(2)(a) of the Social Security (Administration) Act 1999 (Cth)).
ISSUE
The overall issue for determination by this Tribunal is whether, during the Qualification Period, the Applicant met the qualification criteria for a DSP in s 94(1) of the Social Security Act 1991 (Cth) (the Act), including:
(a)whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments;
(b)if so, whether the impairment(s) were fully diagnosed, treated and stabilised and attracted a rating of 20 points or more under the relevant table of the Impairment Tables; and
(c)whether the Applicant had “a continuing inability to work”.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 16 September 2020, 25 September 2020, and 23 October 2020. The parties appeared by telephone.
The Applicant was self-represented. Mr Burgess of Sparke Helmore Lawyers appeared for the Respondent. Oral submissions were made by both parties. The Applicant also gave oral evidence to the Tribunal. The Tribunal also heard evidence from one of the general practitioners who treated the Applicant, Dr Gupta.
The following documentary material was admitted into evidence at the hearing:
(a)Medical certificate dated 24 June 2020 (Exhibit A1);
(b)Bundle of medical documents submitted by the Applicant (Exhibit A2) including:
(i)Medical Certificates dated 17 June 2020 and 15 May 2020;
(ii)X-ray Cervical and Thoracic Spine Report dated 1 May 2020;
(iii)GP Management Plans dated 17 June 2020;
(iv)GP Referral Form for patients with a chronic medical condition and complex care needs dated 17 June 2020;
(v)Medical report from SKG Radiology dated 12 June 2020;
(c)COVID-19 test dated 8 May 2020 (Exhibit A3);
(d)Letter from an orthopaedic surgeon dated 7 February 2020, referral letter to general practitioner undated, and letter from financial counsellor dated 29 January 2020 (Exhibit A4);
(e)T-documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) numbered T1 to T103, comprising 410 pages (Exhibit R1); and
(f)Secretary’s Statement of Issues, Facts and Contentions and list of authorities received 13 March 2020 (Exhibit R2).
After the hearing, on 12 November 2020, the Applicant sent a radiologist’s report dated

8 October 2020 to the Tribunal, which detailed the findings of a CT brain scan.
LEGISLATION
Qualification for DSP
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; …
Impairment Tables
Section 23(1) of the Act defines “Impairment Tables” to mean “the tables determined by an instrument under subsection 26(1)”.
Section 26 of the Act states:
26Impairment 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.
The Minister has determined tables as contemplated by s 26 of the Act. These tables are contained in the Impairment Tables.
“Impairment” is defined in s 3 of the Impairment Tables as “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.”
Section 6 of the Impairment Tables 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.
(Notes omitted.)
Section 5(2) of the Impairment Tables 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.
For a condition to be “permanent”, it must satisfy the following conditions outlined in s 6(4) of the Impairment Tables, 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.
(Notes omitted.)
Sections 6(5) and 6(6) of the Impairment Tables outline the conditions that must be satisfied for a condition to be fully diagnosed, treated and stabilised:
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.
Section 10 of the Impairment Tables outlines how to identify the applicable Impairment Table to apply when assessing impairments. It provides:
Selection steps
(1)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.
(2)The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3)Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4)When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5)Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
To determine the appropriate functional impact to be assigned to the Applicant’s medical conditions during the Qualification Period, the Tribunal must undertake a “function based” (s 5(2)(b) of the Impairment Tables) analysis of the evidence before it. This includes having regard to evidence of the Applicant’s “functional activities, abilities, symptoms and limitations” (s 5(2)(c) of the Impairment Tables) based on the medical evidence before the Tribunal.
Section 11 of the Impairment Tables 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 …
Continuing inability to work
One of the qualification criteria for a DSP in s 94(1)(c) of the Act is that a person must have a continuing inability to work. 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 94(3B) of the Act provides that “[a] person’s impairment is 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” (original emphasis).
Section 94(2)(aa) of the Act refers to an impairment that is “not a severe impairment”. Therefore, if a person has a severe impairment, they will not be required to actively participate in a program of support.
Program of Support
A “program of support” is defined in s 94(5) of the Act as:
program of support means a program that:
(a)is designed to assist persons to prepare for, find or maintain work; and
(b)either:
(i) is funded (wholly or partly) by the Commonwealth; or
(ii) is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
(Original emphasis.)
Qualification Period
Schedule 2, cl 4(1) of the Administration Act provides for a 13-week qualification period from the date of claim:
(1)If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
In summary, an applicant will have a period of 13 weeks from the date of lodgement of an application for a DSP to satisfy the requirements for eligibility. The Applicant lodged her claim for a DSP on 19 July 2018. Consequently, the relevant qualification period is

19 July 2018 to 18 October 2018 (Qualification Period).
The Tribunal can only consider evidence relevant to the Applicant’s medical condition during the Qualification Period. In Gallacher v Secretary, Department of Social Services (2015)

68 AAR 1 (Gallacher), 7 [26] and [28], Besanko J stated that he agreed with the following statement from the judgment of Gyles J in Harris v Secretary, Department of Employment and Workplace Relations (2007) 158 FCR 252, 253 [1]:
This case concerns the application of s 94 of the Social Security Act 1991 (Cth) which deals with the conditions for the grant of a disability support pension. There is little authority in the Court concerning the operation of these important provisions.

It is to be noted at the outset, by virtue of s 42 and Sch 2 to the Social Security Administration Act 1999 (Cth) the applicant’s entitlement to the pension must be considered as at the date of her claim namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent change in her health is irrelevant to the questions which arise in this proceeding except insofar as it may cast light on the position at the relevant time.

In Gallacher, Besanko J (at 7 [27] and [28]) also stated his agreement with the following passage from Deputy President Handley’s decision in Re Fanning and Secretary, Department of Social Services (2014) 144 ALD 133, 139:
In my view, in the case of DSP, it is implicit in cl 4 of Sch 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with [in] the period of 13 weeks following. Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.
The Applicant has submitted medical evidence to the Tribunal which falls outside of the Qualification Period, namely Exhibits A1 through to A4 and the radiologist’s report dated

8 October 2020 filed with the Tribunal after the hearing on 12 November 2020. At the hearing it was explained to the Applicant that the Tribunal is required to assess the functional ability resulting from her impairments during the Qualification Period, and that if her conditions had worsened, or if conditions that had not been fully diagnosed, treated and stabilised during the Qualification Period but had subsequently become so, she would need to make a new claim for a DSP where the medical evidence subsequent to the Qualification Period could be considered.
QUALIFICATION CRITERIA FOR DSP
Did the Applicant suffer from impairments during the Qualification Period?
The Applicant had physical impairments during the Qualification Period (transcript/20-21; R2/[5.19], [5.22], [5.24]). The medical evidence before the Tribunal confirms that the Applicant suffered from chronic lower back and neck conditions, mental health conditions and other conditions (including hypertension, trigeminal neuralgia, a left retinal detachment and secondary glaucoma condition, arthritis in her thumb and hand, and bilateral sensorineural hearing loss), during the Qualification Period (see for example JCA report dated 3 January 2019 at T82/317-325). Accordingly, the Tribunal finds that the Applicant suffered from these impairments during the Qualification Period and therefore, s 94(1)(a) of the Act is satisfied.
Were the impairments permanent at the time of the Qualification Period?
Lower back and neck conditions
The Secretary accepts that the Applicant’s lower back and neck conditions were permanent because they were fully diagnosed, treated and stabilised at the time of the Qualification Period (R2/[5.19]).
This is confirmed by the medical evidence before the Tribunal showing that the Applicant’s neck and back pain was diagnosed before the qualification period. For example, a letter from a general practitioner dated 22 October 2015 confirmed that the Applicant suffered from back and neck pain (T45/200). Additionally, a medical report completed by the Applicant’s general practitioner on 30 April 2015 stated a diagnosis of chronic “lower back pain since 2007” and that the Applicant had been treated by numerous specialists with marginal results (T38/177). This medical report also indicated that the Applicant’s treatment was to stabilise and maintain her condition including ongoing pain treatment, epidural blocks and facet joint injections as needed (T38/176-177).
The medical report of 30 April 2015 also stated a diagnosis of “chronic severe neck pain” (T38/178) since 2009 and specified various treatment that the Applicant had undergone for this condition. Similarly to the Applicant’s lower back condition, the medical report also indicated that the Applicant’s treatment was to stabilise her condition including pain treatment and management and treatment by neuro specialists as needed (T38/178-179).
More recent medical evidence concerning the Applicant’s lower back and neck conditions was also reviewed in the JCA reports of 20 December 2017 and 3 January 2019, with both concluding that the conditions were fully diagnosed, treated and stabilised (T73/253-254; T82/318-319). The Tribunal agrees with the assessments of the medical evidence made in these JCA reports.
The Tribunal agrees, based on the medical evidence before it, that the Applicant’s lower back and neck conditions were permanent at the time of the Qualification Period. Therefore, the Tribunal will consider below the impairment rating to be assigned to these conditions.
Mental health conditions
The Secretary contends that the Applicant’s mental health conditions were not permanent at the time of the Qualification Period because they were diagnosed, but not fully treated and stabilised during the Qualification Period (R2/[5.22]). The Secretary referred to a psychological assessment report dated 13 March 2019 by a clinical and counselling psychologist (T88/340-346). The psychologist diagnosed the Applicant with “Major Depressive Disorder” with symptoms in the severe range. The psychologist also stated that the Applicant met the diagnostic criteria for “Generalised Anxiety Disorder within the severe range” which may be subsumed within a diagnosis of PTSD. The psychologist reported that the Applicant “reported many symptoms of PTSD” but that “a more in depth assessment would be required” to determine whether the Applicant met the diagnostic criteria for PTSD (T88/344-345).
The report also stated that the Applicant had not been prescribed medication for psychological symptoms but had taken anti-depressant medication for pain management. It further stated that the Applicant had not pursued psychological treatment for anxiety because she thought the “treatment has come too late” and that it would have “little benefit” (T88/345).
Dr Gupta, one of the general practitioners at the medical practice the Applicant attended stated in her evidence to the Tribunal that she could not find any record of the Applicant being treated for mental health conditions in 2018 (23/10/20 transcript/56).
Based on this evidence, the Tribunal finds that at the time of the Qualification Period, the Applicant’s mental health issues had not been fully diagnosed, treated and stabilised. This means that the Tribunal cannot determine an impairment rating for the Applicant’s mental health conditions because they were not permanent at the time of the Qualification Period.
Hypertension
A letter from the Applicant’s general practitioner dated 5 July 2017 states that the Applicant was diagnosed with hypertension on 31 May 2017 (T66/233). The JCA dated
3 January 2019 states that “[t]he customer reports that this has minimal functional impacts” (T82/323). There is minimal information before the Tribunal regarding the Applicant’s hypertension such that the Tribunal cannot conclude that it was fully diagnosed, treated and stabilised at the time of the Qualification Period. Even if it was, the available evidence suggests minimal functional impact which would not attract an impairment rating.
Eye condition
A letter from an ophthalmologist dated 26 November 2014 (T37/171) states the Applicant had a left retinal detachment that was surgically repaired. However, she developed a secondary glaucoma in her eye. The letter stated that “with her spectacle corrections vision in both eyes remains stable” and that her vision was “6/9 in the left eye whilst vision in the right eye is 6/6”. The letter further stated that the Applicant’s “intraocular pressures are well controlled” with the use of eye drops. The JCA dated 20 December 2017 (T73/255) stated that the Applicant “reported difficulties when looking downwards, and that she uses drops for her eyes to manage pressure”.
Again, there is minimal medical information regarding this condition, with the JCA dated
3 January 2019 similarly noting the difficulties the Applicant had when looking downwards and the Applicant using drops to manage eye pressure. This JCA also notes that “there is no recent information in the last three years to indicate functional impacts” (T82/320). The Applicant’s “retinal detachment with 2nd glaucoma” was also noted in the medical report dated 30 April 2015 as a medical condition that was generally well-managed and that caused minimal or limited impact (T38/181).
The insufficient medical information means that the Tribunal cannot conclude that the condition was fully treated and stabilised by the Qualification Period. Even if the Applicant’s secondary glaucoma could be considered permanent, the information in the JCA reports and the medical report of 30 April 2015 suggests that any functional impact was minimal.
Arthritis in hand and thumb
The Applicant underwent an operation to the interphalangeal joint of her hand on
23 October 2017 (T69/242). The medical report dated 30 April 2015 also lists the Applicant’s “arthritis hands and severe arthritis R-thumb” as a medical condition that was generally well-managed and that caused minimal or limited impact (T38/181). A letter from a consultant hand surgeon at a Hand Surgery Outpatient Clinic dated 11 February 2019 records that the Applicant “still has some significant pain in the base of her thumb” and noted that there was “an area of altered sensation” in part of her thumb (T86/338). The letter stated that “[i]t is unclear but clinically I suspect that the first metacarpal to second metacarpal fusion has failed”. Surgery was recommended to “correct the thumb into better position”. The letter dated 20 May 2019 from the consultant hand surgeon at the Hand Surgery Outpatient Clinic (T92/351) stated that following a review of the Applicant:
She unfortunately still has significant pain and deformity from her right thumb. She has altered sensation down the radial border of her thumb.
Imaging shows that she has a delayed union of the attempted fusion. She is currently on the wait list for a revision and bone graft.
This medical evidence shows that after the Qualification Period, the Applicant was still undergoing treatment for the arthritis in her thumb and hand. The condition was therefore not fully treated and stabilised at that time and cannot be afforded an impairment rating.
Hearing loss
Similarly, there is minimal evidence before the Tribunal regarding the Applicant’s hearing loss. A report dated 9 November 2017 (T71/247) from an audiometrist to the Applicant’s general practitioner reported that the Applicant had “experienced gradual loss of hearing in her left ear over the last two years” and that the Applicant “reports feeling blocked in the left ear constantly, experiences occasional tinnitus to the left ear only and intermittently hearing a crackle sound from the left ear”. The report stated that the Applicant has “a mild sensorineural hearing loss in the low frequencies” in her right ear and “a mild sensorineural loss across all frequencies” in her left ear. The report continued to state that “[t]he poor speech discrimination and other symptoms in the left ear suggests that there is a possible retrocochlear pathology which will require an ENT specialist referral at your [the general practitioner’s] discretion”.
As at the date of the JCA on 3 January 2019 (T82/322), which was after the Qualification Period, there was no further medical information available regarding this condition. Thus, on the medical evidence before the Tribunal, it does not appear that this condition was fully treated and stabilised. Consequently, an impairment rating cannot be assigned for this condition.
Shoulder pain
In the medical report dated 30 April 2015, the Applicant’s general practitioner listed “left and right shoulder pain - chronic bursitis” as a medical condition that was generally well managed and that caused minimal or limited impact (T38/181). The Applicant underwent an X-ray and an ultrasound on 2 May 2017 after having “[p]ain in shoulder for 2-3 weeks” and “[d]ifficulty in overhead abduction”. The radiology report made the following comment (T58/220):
No rotator cuff tear identified. The infraspinatus is tendinopathic. Linear echogenicity in the proximal long head of biceps may be due to previous repair.
Hyperechoic thickening of the subacromial bursa with thickening on abduction. This could be due to post-surgical change or bursitis.
Widening of the acromioclavicular joint associated with marked focal tenderness. This may be due to previous surgery, but requires clinical correlation.
Based on this medical evidence, the Tribunal concludes that as at 2 May 2017, the Applicant was still undergoing treatment for her shoulder pain. Additionally, a medical certificate from the Applicant’s general practitioner dated 3 April 2018 stated a diagnosis of “left shoulder pain – SA bursitis” and notes that the condition was “temporary” (T75/268). Additionally, the JCA dated 3 January 2019 recorded that “[c]lient during assessment reported that her shoulders are now OK” (T82/323). This evidence suggests that this condition was not permanent and that it had resolved by the Qualification Period. Consequently, an impairment rating cannot be assigned. Even if the condition was permanent, the evidence suggests that it had minimal functional impact.
Left trigeminal neuralgia
The medical evidence before the Tribunal shows that the Applicant had a “persistent tick in the left eye and temporal muscles”, also described as a “hemifacial spasm” (T5/123; see also T6 to T15). The evidence shows that she underwent an operation for this condition in late 1995 (T10/132). A letter dated 14 June 1996 from the Applicant’s general practitioner to a neurologist stated that the Applicant (T16/138):
does not have facial spasms any more. She only complains about some uncomfortable feeling around the left occipital area where the operation was performed.
A letter dated 8 March 2000 from the Department of Neurosurgery (T18/140) stated in part that:
I note that she [the Applicant] has a history of hemifacial spasm of the left side of the face. She had a Jannetta procedure in 1995. Since this she had had a markedly reduced number of episodes.
A letter from a neurosurgeon dated 11 October 2000 (T20/143) stated that since earlier in that year the Applicant’s “left hemifacial spasm has not recurred”, however noted that the Applicant “complained bitterly of left suboccipital pain which could be due to great occipital nerve type pain”. A letter from the Perth Radiological Clinic dated 12 June 2008 indicates that the Applicant underwent an MRI of her maxillofacial region, skull base and brain, showing that the Applicant’s condition was still being investigated at that time (T21/144). A letter dated 9 June 2011 shows that the Applicant was undergoing pain management and that part of her management plan was a referral for further assessment so that nerve stimulator therapy to the greater occipital nerve could be considered (T26/153).
However, in a DSP medical report dated 30 April 2015, a general practitioner listed the Applicant’s “left trigeminal neuralgia since 1995” as one of the conditions that was generally well managed with minimal or limited impact (T38/181). Additionally, in the JCA dated

12 June 2015, the assessor noted that the Applicant “reported botox needles and medications since [her operation in 1995] and advised that she no longer gets pain in her face” (T41/188). The JCA reports dated 20 December 2017 and 3 January 2019 both stated that the Applicant reported taking medication for this condition and that she “has occasional episodes” (T73/254; T82/319).
The reasons for the AAT1 decision record that the Applicant “said she previously had this condition, that it came and went a few times and she did not have it at the date of her claim”. The Tribunal also noted that at the time of its decision “[t]here was no current evidence with respect to treatment and functional impact of this condition” (T2/7).
Based on the limited evidence before the Tribunal, the Tribunal cannot conclude that the condition was fully treated and stabilised by the Qualification Period. Additionally, the evidence given by the Applicant to the AAT1 suggests that the condition may have resolved.
Other conditions
For completeness, the Tribunal notes that the Applicant may have suffered from other conditions including sinusitis and right-sided maxillary polyps, bilateral hip pain, pelvic floor pain and urinary tract infection. However, there is insufficient information about these conditions to assess whether they were fully treated and stabilised as at the Qualification Period, and as to their functional impact.
Impairment rating for the Applicant’s lower back and neck conditions
The Tribunal will now determine the functional impact of the Applicant’s lower back and neck conditions at the time of the Qualification Period to determine the appropriate impairment rating.
The DSP medical report dated 30 April 2015 completed by the Applicant’s general practitioner stated that the Applicant had “[c]hronic severe back pain. 24/7”. Under the section on the impact on the Applicant’s ability to function, the general practitioner wrote (T38/176-177):
- chronic severe lower back pain
- not able to work
- barely coping with daily activities at home
Similarly, with respect to the impact on the Applicant’s ability to function due to her neck pain, the general practitioner noted (T38/180):
Chronic neck pain
- unable to work
- barely coping with basic living activities
The JCA report dated 20 December 2017 stated that the Applicant “reported that she can hang out her laundry; is able to perform housework if she paces herself; can bend to her knees but moving her head can cause discomfort” (T73/253-254). Similarly, the JCA report dated 3 January 2019 stated that the (T82/319):
Assessor, Registered physiotherapist, observed good range of rotation to the right, but neck rotation to left = 1/2 range of movement. Neck extension = aggravated neck pain, neck flexion = good range, but rather not do that due to visual disturbance. She reported that she can hang out her laundry; is able to perform housework if she paces herself; can bend to her knees but moving her head can cause discomfort.
After noting these findings from the JCA report dated 3 January 2019, the AAT1 stated in the reasons for decision that at the hearing the Applicant “confirmed that she is able to undertake these activities however she needs to rest and tires easily after carrying out housework such as vacuuming, laundry and making the bed” (T2/5). The AAT1 also noted the Applicant’s evidence that “she is able to sit in a car for 30 minutes provided she has taken medication for her back pain and neck pain” (T2/5).
Table 4 – Spinal Function is the relevant table of the Impairment Tables. To be afforded a moderate rating of 10 points under Table 4, a person must be able to sit in or drive a car for at least 30 minutes, plus one of the other functional impacts on activities listed in that part of the table should apply. To be afforded a “severe” functional impact of 20 points under Table 4, the person must be unable to: perform any overhead activities; turn their head, or bend their neck, without moving their trunk; bend forward to pick up a light object from a desk or table; or remain seated for at least 10 minutes.
In the Applicant’s case, the evidence was that she was able to drive for 30 minutes, and she had difficulty sustaining overhead activities as well as difficulty moving her head to look in all directions. The Applicant does not fall within the “severe” range because her functional abilities do not meet the criteria in the “severe” range of the table. This is because, although the Applicant had difficulty performing or sustaining overhead activities and moving her neck, she was not unable to do so. Also, the evidence suggests that the Applicant could bend forward to pick up a light object and could remain seated for more than 10 minutes. To have a “severe” rating, the Applicant would need to be unable to perform those activities.
Therefore, the Tribunal finds that the functional impact of the Applicant’s back and neck condition under Table 4 was “moderate” and should be afforded 10 points under Table 4 of the Impairment Tables.
CONCLUSION

During the Qualification Period, the Applicant did not met the eligibility requirements in
s 94(1) of the Act and was therefore not qualified to receive a DSP.
This was because, although the Applicant suffered from impairments, with the exception of her back and neck condition, her impairments were not permanent and therefore could not be assigned an impairment rating under the Impairment Tables.
Further, as her back and neck condition could only be assigned a moderate rating of 10 points, she did not satisfy the requirement in s 94(1)(b) of the Act of having 20 points or more under the Impairment Tables.
It is therefore unnecessary to consider whether the Applicant has a continuing inability to work under s 94(1)(c) of the Act.
The Applicant has suffered numerous health conditions over the years. The number and the combination of these conditions adds further complexity to the Applicant’s situation. It appears likely to the Tribunal that some of the Applicant’s conditions, including her Mental Health conditions, may have developed or worsened since the Qualification Period. The Tribunal requests that Centrelink work with the Applicant and her general practitioner and other medical specialists to assist in the preparation of a new claim for a DSP, including providing them with copies of the Impairment Tables to ensure Centrelink has the relevant information to be able to determine the new DSP claim. This will enable any developments in the Applicant’s health conditions and medical evidence subsequent to the Qualification Period to be considered.
DECISION
The ARO Decision dated 6 August 2019, as affirmed by the AAT1 on 28 October 2019, is affirmed.

I certify that the preceding 78 (seventy-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner

.... [Sgd]................................................................
Associate
Dated: 3 December 2020

Date of hearing: 16 September 2020, 25 September 2020, and 23 October 2020

Applicant: Self-represented

Representative for the Respondent: Mr A Burgess, Sparke Helmore Lawyers

[2020] AATA 4862

3 December 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Statutory Construction

Procedural Fairness

Date of hearing:	16 September 2020, 25 September 2020, and 23 October 2020
Applicant:	Self-represented
Representative for the Respondent:	Mr A Burgess, Sparke Helmore Lawyers