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

[2016] AATA 441

Sharman and Secretary, Department of Social Services (Social services second review) [2016] AATA 441 (29 June 2016)

Division	GENERAL DIVISION
File Number(s)	2015/1818
Re	Mr Jayson SHARMAN
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Mr C Ermert, Member
Date	29 June 2016
Place	Melbourne

The Tribunal affirms the reviewable decision.

.........................[sgd]..............................

Mr C Ermert, Member

SOCIAL SERVICES - Disability Support Pension - cancellation - assessment date –whether qualified - physical, intellectual or psychiatric impairments - whether impairments attract 20 points or more on Impairment Tables - reviewable decision affirmed

LEGISLATION

Social Security Act 1991 (Cth)

Social Security (Administration) Act 1999(Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Mr C Ermert, Member

INTRODUCTION

1. Mr Jayson Sharman, the Applicant, has been receiving a Disability Support Pension (DSP) since 15 November 2010.  On 12 August 2014 Centrelink issued a notice to Mr Sharman notifying him of a review of his details and eligibility to receive DSP.  Centrelink is the service provider for the Secretary, Department of Social Services, the Respondent.

2. On 17 December 2014, a Centrelink officer decided to cancel Mr Sharman’s DSP as his impairments did not attract a total of 20 points according to the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Impairment Tables).  On 14 January 2015, a Centrelink Authorised Review Officer (ARO) affirmed this decision.  Mr Sharman sought review of the ARO decision by the Social Security Appeals Tribunal (SSAT).  On 12 March 2015 the SSAT affirmed the ARO’s decision. 

3. This matter is a review of the SSAT decision.

   HEARING

4. Via telephone discussions conducted on 9 March 2016, Mrs Elizabeth Sharman, on behalf of her son, the Applicant, agreed to the Tribunal making its decision on the papers without a hearing.  Mr Joshua Lessing, of Sparke Helmore Lawyers, agreed on behalf of the Respondent.

5. On 26 April 2016, following the directions hearing, Mrs Sharman lodged for consideration an amended statement of facts and contentions.  Mr Lessing lodged the Secretary’s reply to the amended statement of facts and contentions. Mrs Sharman further responded with a reply to the Secretary’s reply.

6. On 30 May 2016, a telephone directions hearing was held to ensure that the Tribunal and the parties possessed all the relevant documents.

   LEGISLATION

7. The legislation relevant to this matter is contained in:

   ·Social Security Act 1991 (Cth) (the Act);

   ·Social Security (Administration) Act 1999 (Cth) (the Administration Act); and

   ·Social Security (Tables for the Assessment of Work-related Impairments for Disability Support Pension) Determination 2011 (Cth) (the Impairment Tables).

8. Section 94 of the Act relevantly prescribes qualification for DSP:

   (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.

   …

9. A person’s impairment is assessed by reference to the Impairment Tables.

   ASSESSMENT DATE

10. Section 27(3) of the Act provides that in circumstances where a person in receipt of DSP is given a notice for review of their eligibility for benefits, their qualification is to be assessed in accordance with the instruments in force on the date of the notice.

11. On 12 August 2014, an officer of Centrelink issued to Mr Sharman a notice of a medical review for his DSP.  The Respondent contends that section 27(3) of the Act requires that Mr Sharman’s qualification for DSP must be assessed in accordance with the Impairment Tables in force on 12 August 2014. 

12. I accept this contention and find that the assessment must be made in accordance with the Impairment Tables contained in the Impairment Tables Determination of 2011 identified above, which were in force on 12 August 2014.

    ISSUES

13. The issues are whether, on 12 August 2014, Mr Sharman:

    ·had any physical, intellectual or psychiatric impairments; and, if so,

    ·the impairments attracted a rating of 20 points or more under the Impairment Tables; and, if so

    ·he had a continuing inability to work.

    EVIDENCE

14. In making this decision, I have before me the documents provided by the Respondent in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the T-documents). 

15. For Mr Sharman I have taken in as evidence the following documents:

    ·Exhibit A1 – Letter from Mrs Sharman dated 15 June 2015 with the following attachments:

    oDocument 1 – Referral Letter Austin Health dated 15 May 2010;

    oDocument 2 – MRI report of Dr Tan dated 6 May 2010;

    oDocument 3 – Referral Letter Austin Health dated 10 May 2010;

    oDocument 4 – Progress Notes Austin Health dated 6 August 2010; and

    oDocument 5 – OP letter Austin Health dated 6 August 2010;

    ·Exhibit A2 – report of Dr Elsaafin dated 3 August 2015;

    ·Exhibit A3 – report of Dr Elsaafin dated 11 February 2016;

    ·Exhibit A4 – report of Dr Lazaridis dated 12 February 2016;

    ·Exhibit A5 – report of Mr Fogarty dated 13 January 2014;

    ·Exhibit A6 – report of Dr Wyatt dated 8 March 2016;

    ·Exhibit A7 – statement of Jayson Sharman dated 7 March 2016;

    ·Exhibit A8 – affidavit of Jim Santef dated 14 February 2012;

    ·Exhibit A9 – Neurosurgical Society of Australasia Lumbar Discectomy – A guide for patients;

    ·Exhibit A10 –  Neurosurgical Society of Australasia Lumbar Laminectomy – A guide for patients; and

    ·Exhibit A11 – Addendum to the Statement of Jayson Sharman.

16. For the Applicant I have taken in for consideration:

    ·The Applicant’s Statement of Facts, Issues and Contentions received 7 March 2016;

    ·The Applicant’s Amended Statement of Facts, Issues and Contentions dated 26 April 2016; and

    ·The Applicant’s Reply to the Secretary’s Reply to the Applicant’s Amended Statement of Issues, Facts and Contentions dated 19 May 2016.

17. For the Respondent I have taken in as evidence the following documents:

    ·Exhibit R1 – Employment Support Services Referrals for Mr Sharman;

    ·Exhibit R2 – report of Mr Kenneth Myers dated 28 February 2011;

    ·Exhibit R3 – report of Mr David de la Harpe dated 24 May 2011;

    ·Exhibit R4 – report of Mr Michael Fogarty dated 15 December 2011;

    ·Exhibit R5 – report of Mr David de la Harpe dated 2 February 2012;

    ·Exhibit R6 – report of Mr Michael Fogarty dated 8 February 2012;

    ·Exhibit R7 – report of Dr David Elder dated 6 December 2010; and

    ·Exhibit R7 – MRI report by Dr Tan dated 6 May 2010.

18. For the Respondent I have taken in for consideration:

    ·The Secretary’s Statement of Facts, Issues and Contentions dated 16 September 2015;

    ·The Secretary’s Amended Statement of Facts, Issues and Contentions dated 24 March 2016; and

    ·The Secretary’s Reply to the Applicant’s Amended Statement of Issues, Facts and Contentions dated 6 May 2016.

    TRIBUNAL CONSIDERATIONS

    Does Mr Sharman have an Impairment? (section 94(1)(a))

19. The Respondent concedes, correctly in my opinion, that on the assessment date Mr Sharman had impairments from the following conditions, which satisfied the requirements of section 94(1)(a) of the Act:

    ·Back condition, and

    ·Depression.

20. The concession is supported by the evidence, and I find accordingly.

    Do the Impairments attract an Impairment Rating of 20 points or more?
    (section 94(1)(b))

21. I must now determine whether Mr Sharman’s impairments attract a rating of 20 points or more under the Impairment Tables according to section 94(1)(b) of the Act.

22. Section 6(3) of the Impairment Tables provides that a rating can only be assigned to an impairment if the person’s condition is permanent and if the impairment is more likely than not to persist for more than two years.  Section 6(4) provides that a condition is permanent if the condition has been fully diagnosed by an appropriately qualified medical practitioner, and has been fully treated and fully stabilised.

23. I will consider each of the conditions in turn.

    Back Condition

24. In considering whether the condition is fully diagnosed, fully treated and fully stabilised I note the following reports:

    ·Dr Tan dated 6 May 2010 which records his findings from an MRI scan:

    The pertinent abnormality is that of spinal epidural lipomatosis, most prominent commencing from the L5/S1 junction extending down into the sacral central canal causing marked narrowing of the sacral portion of the thecal sac and probable mass effect on the sacral nerve roots.  This seems to correspond well with the bladder/bowel symptoms described.

    L5/S1 degenerative disc disease with right paracentral disc protrusion impinging the traversing right S1 nerve root in the lateral recess …

    A neurosurgical opinion is recommended;

    ·Dr Elder dated 6 December 2010 which records:

    In summary, I believe that the worker does have good clinical signs of an S1 radiculopathy.  He also has symptomatology suggestive of bowel involvement; consistent with the radiological findings on the MRI scan …

    In my view, I would be referring him for a surgical opinion;

    ·Mr Kenneth Myers dated 28 February 2011 which records:

    I doubt that laminectomy would be required for incontinence of bowel function.  I think that he should be seen by a gastroenterologist to determine whether there is a primary cause for bowel disorder.  I doubt that it is due to spinal cord compression.  I think that serious thought should be given to treatment of the condition by laminectomy and nerve root decompression to attempt to improve the pain in the leg.  He may well become a candidate for spinal fusion but not for a good while … The lack of support from his insurance company means that he is unable to afford any treatment for a serious condition in the back;

    ·Mr David de la Harpe dated 24 May 2011 which records:

    He was not doing any physiotherapy as he said he couldn’t afford the $200.00 a week to pay for the physio … I was sure Jayson had a component of degenerative back pain from the degenerative discs as well as some persisting S1 compression and sciatica … he needed to continue with some form of Pilates to strengthen his back.  He may well need a right sided L5-S1 microdiscectomy if his sciatic pain proved to be a major disability for him …

    I think his condition has essentially stabilised and further treatment would revolve around conservative management except in the situation of increasing sciatica due to the L5-S1 disc prolapse which would then be amenable to surgical decompression;

    ·Mr Michael Fogarty dated 15 December 2011 which records:

    I am not convinced with the first conclusion (This seems to correspond well with the bladder/bowel symptoms described) especially as your client does not have bladder symptoms … My diagnosis is lumbo-sacral disc protrusion postero-laterally to the right causing an effect on the first sacral nerve root on the right side with pain in the distribution of the sciatic nerve (sciatica).  There is in addition  radiographic evidence of degenerative disc disease of the lower most three discs in the lumbar spine … He will require further conservative treatment and there remains the possibility of his requiring operative treatment in the form of microdiscectomy at the lumbo-sacral level;

    ·Mr Michael Fogarty dated 13 January 2014 which records:

    My diagnosis of the injuries sustained by your client remains that he has persistent symptoms and signs of significant lumbo-sacral disc protrusion posterolaterally to the right causing an effect on the first sacral nerve root on the right side with possible effect also on the fifth lumbar nerve root.  He has clear evidence of persistent sciatica into his right leg and evidence of radiculopathy.  As previously mentioned there is additional radiographic evidence of degenerative disc disease of the lower most here discs in his lumbar spine …

    I believe that your client should have a further review by a spinal surgeon for which he need (sic) referral by his general practitioner.  It would be reasonable for him to be re-examined by at least one of the spinal surgeons he has previously consulted.  Surgical treatment such as microdiscectomy at the lumbo-sacral level should again be at least considered.

    ·Mr Kenneth Myers dated 17 February 2014 which records:

    At the time that I last saw him, there had been discussion of his having surgical treatment but he told me that he never got to have an operation.  He states that he had had three opinions in the past:  from Mr David Wallace, Neurosurgeon … from Mr Gavin Davis, Neurosurgeon … and from Mr de la Harpe, Orthopaedic Surgeon… Nevertheless, his only treatment now is with medications through his General Practitioner, Dr Elsaafin. … He has had no physiotherapy or hydrotherapy since the insurance company stopped payment.  He has had five sessions of physiotherapy as covered by Medicare and has had 12 sessions with Pilates which he had to stop because it was causing pain … He is above average height and is markedly overweight …

    It is my opinion that the opportunity for successful surgery has long passed and that he should instead be referred to a pain management specialist group with the aim of an intense course of rehabilitation with physiotherapy, hydrotherapy, psychological counselling and other treatment.

    ·Dr Elsaafin dated 4 September 2014 which records:

    Current treatment: Panadol …, Panadeine forte tablet, Exercise + weight loss … Future/planned treatment: To continue on above treatment.

    ·JCA Report dated 30 October 2014 which records:

    There has been no further physiotherapy and hydrotherapy since his insurance company stopped payment.  Mr Sharman stated he has been advised surgery is an option and once work-cover is finalised, he will revisit this option, however indicated that there may be 2 year waiting list for this treatment.  Due to the extended waiting list Mr Sharman’s condition is unlikely to change significantly in the next 24 months and is deemed as long term, fully treated and stable for the purpose of this report.

    ·Dr Mary Wyatt dated 8 March 2016 which recorded:

    He has been recommended to exercise, lose weight, and improve his physical fitness as a way of managing his back problem.  Mr Sharman has endeavoured to do this, through a combination of Pilates, severe dietary restrictions, and endeavours at walking.  He has lost weight, though exercise has not improved his level of back pain, sciatica …

25. There is no dispute that the back condition is fully diagnosed.

26. The Respondent contends that the back condition is not fully treated and stabilised because Mr Sharman has not undergone recommended reasonable treatment in the form of physiotherapy, Pilates, hydrotherapy or rehabilitation despite recommendations from various specialists.

27. Mrs Sharman contends that Mr Sharman has carried out physiotherapy and Pilates and that he could not afford to undergo intensive rehabilitation because it is very expensive, costing around $1,000 per day. She also contends that hydrotherapy is not an appropriate treatment because Mr Sharman suffers from bowel incontinence.

28. In considering the Respondent’s contention, I note section 6(7) of the Impairment Tables, which defines reasonable treatment as treatment that is, amongst other things, at a reasonable cost and carries a low risk to the person. 

29. In the case of physiotherapy I accept the evidence of Mr Myers who records that Mr Sharman had five sessions of physiotherapy before the Medicare funding ran out.  Mr Myers reinforces the point in recording that “The lack of support from his insurance company means that he is unable to afford any treatment for a serious condition in the back”.

30. I accept also the evidence of the JCA who recorded that Mr Sharman undertook physiotherapy and hydrotherapy until his insurance cover ran out. Although I have no evidence of the cost of physiotherapy and hydrotherapy without Medicare or insurance funding, I accept that Mr Sharman was undertaking physiotherapy and hydrotherapy treatment until the cost to him became unreasonable. 

31. I find that the physiotherapy and hydrotherapy treatments were not reasonable for Mr Sharman as the costs were no longer reasonable for him.

32. In regard to Pilates, Mr Myers records that Mr Sharman had to cease Pilates treatment as it caused him pain.  I accept that continued Pilates treatment was no longer reasonable as it carried a real risk for Mr Sharman and I find accordingly.

33. The term rehabilitation, as used in the Respondent’s contention is not specific in its treatment modality.  I cannot accept it for consideration as a reasonable treatment. As a result of my considerations, I do not accept the contention that Mr Sharman’s back condition was not fully treated and stabilised on the basis that he has not undertaken reasonable treatment.  I accept that the back condition is fully treated and stabilised and I find accordingly.

34. As I have found that the back condition is fully diagnosed, fully treated and fully stabilised, I am able to assess the impairment rating for this condition. The relevant Impairment Tables are Table 4 – Spinal Function and Table 3 – Lower Limb Function

35. For a rating of 10 points under Table 4 of the Impairments Tables:

    (1)  The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

    (a)The person is unable to sustain overhead activities (e.g. accessing items over head height); or

    (b)The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

    (c)The person is unable to bend forward to pick up a light object placed at knee height; or

    (d)The person needs assistance to get up out of a chair (if not independently mobile in a wheelchair.

36. I note the report of the JCA dated 30 October 2014 in which he recorded:

    Mr Sharman is able to sit in or drive a car for at least 30 minutes … After 30 minutes of sitting in the assessment, Mr Sharman stood and remained standing for approximately 10 minutes before taking a seat.  

    Mr Sharman is unable to bend forward to pick up a light object placed at knee height.  Mr Sharman reported that he has difficulties reaching for the remote control on the coffee table when standing.  He reported significant difficulties when attempting to place his socks on, often elevating his leg to reach forward to his feet …

    He reported that he can wash his car, vacuum the house and reach for overhead items without major issues.  He does however become fatigued after such tasks.

37. I accept the report of the JCA as sufficient evidence that Mr Sharman is able to sit in or drive a car for 30 minutes, that he is unable to sustain overhead activities and that he is unable to bend forward to pick up a light object from knee height.  I am satisfied that Mr Sharman meets the requirements for a rating of 10 impairment points under Table 4 of the Impairment Tables.

38. In considering whether the impairment should be assessed at a higher rating, I note the requirements for a rating of 20 points under Table 4 of the Impairment Tables:

    (1)  The person is unable to:

    (a)Perform any overhead activities; or

    (b)Turn their head, or bend their neck, without moving their trunk; or

    (c)Bend forward to pick up a light object from a desk or table; or

    (d)Remain seated for at least 10 minutes.

1. The JCA report of 30 October 2014 recorded that Mr Sharman is able to drive his car for 30 minutes and is able reach for overhead items without major issues.  I accept this as evidence that Mr Sharman can perform overhead activities and can remain seated for at least 10 minutes.  Driving a car requires a person to turn their head and bend their neck to some extent while their trunk is restrained by a seat belt.  I accept that Mr Sharman’s ability to drive his car is evidence that he is not unable to turn his head or bend his neck without moving his trunk. There is no evidence that Mr Sharman is unable to bend forward to pick up a light object from a desk or table.

2. I am not satisfied that Mr Sharman meets the requirements for an impairment rating of 20 points under Table 4 of the Impairment Tables.  Accordingly I assign a rating of 10 points under Table 4 for his back condition.

   Depression

3. The Introduction to Table 5 - Mental Health Function states:

   The diagnosis of the condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist) with evidence from a clinical psychologist (if the diagnosis has not been made by a psychiatrist).

4. In his letter dated 11 February 2016, Dr Elsaafin records:

   Mr Jayson Sharman, age 35 years, was diagnosed with Anxiety and Depression related to his Work related Back Injury happened in year 2008.  I saw him for the first time for this condition on the 15/01/2009 … He informed me that he was diagnosed with Depression by a Centrelink psychologist. 

5. In her report dated 12 February 2016 Dr Mary Lazaridis, Clinical Psychologist, reports:

   Jayson was referred for psychological assessment, by his GP Dr Elsaafin, in January 2015 because he was experiencing Anxiety and Depression – since September 2014 - in context of work related back injuries and difficulties with Centrelink.

   In January 2015, Jayson met DSM-5 criteria for Major Depressive Disorder and Significant Anxiety.

6. In her written contentions Mrs Sharman states:

   Mr Sharman was diagnosed with depression in 2009 by Dr El Saafin … Mr Sharman recently had an exacerbation of his symptoms due to the difficulties with Centrelink.  Mr Sharman was assessed by Dr Lazaridis Clinical Psychologist on 12 February 2016 …

7. The medical evidence records that the first occasion Mr Sharman was diagnosed with depression by a clinical psychologist was on 12 February 2016.  That diagnosis refers back only to January 2015. 

8. I am satisfied that at the assessment date Mr Sharman’s condition had not been diagnosed by an appropriately qualified medical practitioner as required by the Impairment Tables.  Accordingly I am unable to assign impairment points to this condition.

   Other Conditions

9. There is medical evidence that Mr Sharman suffered from other conditions at the assessment date.  The conditions are: continence function, lower limb function and brain function.  I will consider each in turn.

   Continence Function

10. The Secretary’s first contention is that, if the continence function is related to the back condition, and the back condition is not fully diagnosed, treated and stabilised, the continence function must also be considered as not fully diagnosed, treated and stabilised.  I have already found that the back condition is fully diagnosed, treated and stabilised.  Hence I do not accept this first contention.

11. The Secretary’s alternative contention is that, if the continence function is unrelated to the back condition, it cannot be considered fully diagnosed, treated and stabilised without further specialist review. 

12. In considering whether the condition is fully diagnosed, fully treated and fully stabilised I note the following reports:

    ·Dr Tan dated 6 May 2010 which records his findings from an MRI scan:

    The pertinent abnormality is that of spinal epidural lipomatosis, most prominent commencing from the L5/S1 junction extending down into the sacral central canal causing marked narrowing of the sacral portion of the thecal sac and probable mass effect on the sacral nerve roots.  This seems to correspond well with the bladder/bowel symptoms described.

    ·Dr Elder dated 6 December 2010 which records:

    In summary, I believe that the worker does have good clinical signs of an S1 radiculopathy.  He also has symptomatology suggestive of bowel involvement, consistent with the radiological findings on the MRI scan.

    ·Mr Myers dated 28 February 2011 which records:

    He told me that he has no difficulty with micturition but that the problem with the bowels is his worst disability and he emphasised that this was bad before he took the drugs and has been much worse since being on medications …
    I doubt that laminectomy would be required for incontinence of bowel function.  I think that he should be seen by a gastroenterologist to determine whether there is a primary cause for bowel disorder. I doubt that it is due to spinal cord compression.  

    ·Mr Fogarty dated 15 December 2011 which records:

    MRI of the lumbar spine had been at the Radar Medical Imaging on 6 May 2010 and the conclusion to this report was:

    1.    The pertinent abnormality is that of spinal epidural lipomatosis … This seems to correspond well with the bladder/bowel symptoms described.

    2.    …

    Having seen the images, I agree with the second conclusion but I am not convinced with the first conclusion, especially as your client does not have bladder symptoms.

    ·Mr de la Harpe dated 2 February 2012 which records:

    Also, regarding Jayson’s incontinence, it is noted that the MR radiologist has commented that the presence of the epidural lipomatosis in the sacrum may be causing his incontinence.  However, the epidural lipomas are long standing and are not related to his work injury.  It is also likely that having constant pain causes some difficulty in controlling the pelvic floor muscles and could therefore be contributing to his incontinence.

    ·Mr Myers dated 17 February 2014 which records:

    He has never been referred to a gastrointestinal specialist.  My understanding is that he has had no further investigations. 

    ·Mr Fogarty dated 13 January 2014 which records:

    He had not been taking any anti-inflammatories, having previously been on Celebrex.  He said however this was affecting his stomach and bowel.  He tried another anti-inflammatory in the form of Brufen but found this was not very helpful and also increased his bowel symptoms.  … He said he continued to have some problem with bowel control and had occasional leaking of faecal fluid.  He had not had problems with his bladder. 

    ·Dr Wyatt dated 8 March 2016 which records:

    Mr Sharman has been diagnosed with a disc protrusion at the lumbosacral level, causing sciatica.
    He subsequently developed problems with bladder and bowel continence problems and this has been diagnosed as secondary to pressure on the exiting nerve roots.  His MRI scan has subsequently shown marked narrowing of the thecal sac and mass effect on the sacral nerve roots.  Lipoamatosis and disc material crowd the cauda equina causing damage and dysfunction to the nerves to the bladder and bowel, and sciatica.…
    Mr Sharman is a 35 year old man who advised persistent back and right leg pain dating from 2008.  He subsequently developed problems with bladder and bowel function and incontinence, and his scans indicate this is secondary to cauda equina.

13. The medical reports show significant disagreement on the diagnosis of the condition:

    ·Dr Tan diagnoses the condition as resulting from spinal epidural lipomatosis;

    ·Dr Elder supports this finding with his opinion of an S1 radiculopathy;

    ·Mr Myers doubts that the bowel condition is due to spinal cord compression;

    ·Mr Fogarty is not convinced of the spinal epidural lipomatosis as Mr Sharman does not have bladder symptoms; and

    ·Mr de la Harpe opines that having constant pain causes some difficulty in controlling the pelvic floor muscles and could therefore be contributing to his incontinence.

14. In her contentions dated 26 April 2016, Mrs Sharman relies on the assessment of Dr Wyatt, stating “Dr Wyatt confirmed in her report that the incontinence condition was related to the spine and it has been fully diagnosed and fully stabilised”.  However, Dr Wyatt did not see Mr Sharman until 24 February 2016, 17 months after the assessment date.  In addition, her diagnosis includes bladder problems which were denied by Mr Sharman in the report of Mr Myers and specifically excluded on two occasions by Mr Fogarty.

15. Due to the conflicting medical evidence, I do not accept that Mr Sharman’s incontinence is fully diagnosed and I find accordingly.  As a result, the condition is not permanent in the terms of the Impairment Tables and I am unable to assign an impairment rating to this condition.

    Lower Limb Function

16. In considering the diagnosis of the lower limb condition I note the following reports:

    ·Dr Elder dated 6 December 2010 which records:

    He has pain in the low back between 5/10 to 7/10.  It radiates down the right leg especially to the lateral aspect of the foot.  His right calf can cramp.

    ·Mr Myers dated 28 February 2011 which records:

    I agree with his diagnosis of “right leg sciatica …”;

    ·Mr Fogarty dated 1 January 2014 which records:

    He has clear evidence of persistent sciatica into his right leg and evidence of radiculopathy;

    ·Mr Myers dated 17 February 2014 which records:

    Long-standing low back pain extending into the right leg;

    ·Dr Elsaafin dated 4 September 2014 which records:

    Low back pain referred to right buttock, thigh, leg down to ankle and foot;

17. On the basis of the medical evidence, I am satisfied that Mr Sharman’s lower limb condition results from his back condition which I have found to be fully diagnosed, treated and stabilised.  I am satisfied that the lower limb condition is fully diagnosed, fully treated and fully stabilised and I find accordingly.     Consequently I am able to assign an impairment rating to the condition.

18. In considering the impairment from the lower limb condition I note the following reports:

    ·Dr Elder dated 6 December 2010 which records:

    He could walk on his heels and toes and carry out a squat.  He demonstrated an antalgic gait on the right side which did not disappear whilst walking backwards.

    ·Mr Fogarty dated 15 December 2011 which records:

    I noted that Jay Sharman would walk without aid and without limp and was able to walk on his heels and toes …His capacity to stand for periods longer than fifteen to twenty minutes is poor;

    ·Mr Fogarty dated 13 January 2014 which records:

    He is able to walk without aid and without limp.

    ·Dr Elsaafin dated 4 September 2014 which records:

    Unable to sit or stand for a prolonged time, decreased endurance … ;

    ·Job Capacity Assessment Report dated 30 October 2014 which records:

    After 30 minutes of sitting the assessment, Mr Sharman stood and remained standing for approximately 10 minutes before taking a seat … Showering and dressing is performed without difficulties.  He reported minor difficulties with household chores, such as vacuuming and mopping … Mr Sharman completes most daily tasks without the assistance of others.  He reports no difficulties with his grocery shopping and household chores, given that he resides alone;

19. The descriptors in Table 3 – Lower Limb Function for an impairment rating of five points are:

    (1)  At least one of the following applies:

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

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

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

    (2)  At least one of the following applies:

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

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

20. The medical evidence suggests that Mr Sharman can stand for at least 10 minutes, and he does not need to use a prosthesis or a walking stick.  I am satisfied from the evidence that Mr Sharman’s lower limb impairment does not satisfy the requirements of sub-section (2). As a consequence the impairment cannot satisfy the necessary requirements   to be attributed 5 impairment points under Table 3 of the Impairment Tables.  I find that the lower limb condition attracts an impairment rating of zero points.

    Brain Function

21. In considering this condition I note the following relevant reports:

    ·Mr Fogarty dated 15 December 2011 which records:

    I understand there are psychological problems associated with the persistence of pain, apparent lack of improvement and possible depression … His level of pain during the day is significant as outlined in the body of this report …Jay Sharman certainly indicates that his sleep is affected by the low back and right leg pain and he can really only sleep by taking relatively strong pain killing medication, which still does not allow him to have a full night’s sleep … The overall situation for Jay Sharman is serious as he is a young man with significant lumbo-sacral pathology, seemingly making no improvement with time and affecting him significantly psychologically.

    ·Mr Myers dated 17 February 2014 which records:

    Sleep impairment causing reduced daytime alertness;

    ·Dr Elsaafin dated 4 September 2014 which records as a symptom of Mr Sharman’s chronic lower back pain:

    Decreased endurance and concentration … decreased concentration;

22. The Introduction to Impairment Table 7 – Brain Function states the diagnosis of the condition must be made by an appropriately qualified medical practitioner.  The examples of sources of corroborating evidence include the person’s treating doctor.  Dr Elsaafin is Mr Sharman’s treating doctor and I accept that he is appropriately qualified to make a diagnosis of this condition. 

23. I accept Dr Elsaafin’s statement of decreased concentration as a sufficient diagnosis for the condition.  The medical evidence associates the brain function with the pain from the back condition.  I have already found that the back condition is fully diagnosed, fully treated and fully stabilised.  Following the same reasoning, I find that the brain function is fully diagnosed, fully treated and fully stabilised.  As a result I am able to assign an impairment rating to this condition.

24. For a rating of  5 points Table 7 requires, relevantly:

    (1)  The person is able to complete most day to day activities without assistance and has mild difficulties in at least one of the following:

    a.    …

    b.    Attention and concentration:

    Example 1: The person has some difficulty concentrating on complex tasks for more than 1 hour.

    Example 2: The person has some difficulty focusing on a task if there are other activities occurring nearby.

25. I accept that Dr Elsaafin’s description of decreased endurance and concentration satisfies the requirement that Mr Sharman has mild difficulties in attention and concentration.  I assign an impairment rating of 5 points to this condition.

    Total Impairment Rating

26. For Mr Sharman’s conditions at the assessment date I have found the following:

    (a)Back condition – impairment assessed at 10 points;

    (b)Depression – not fully diagnosed and unable to be assigned an impairment rating;

    (c)Continence function – not fully diagnosed and unable to be assigned an impairment rating; and

    (d)Lower limb function – impairment assessed at zero points.

    (e)Brain function – impairment assessed at 5 points.

27. The total impairment rating at the assessment date is 15 impairment points.

    CONCLUSION

28. At the assessment date the total impairment rating is less than the 20 points required to satisfy section 94(1)(b) of the Act.  In order to satisfy section 94(1) of the Act, all of the sub-sections must be satisfied.

29. Mr Sharman does not satisfy the requirements of section 94(1)(b) of the Act.  As a result, he cannot satisfy all the provisions of section 94(1) of the Act and there is no need for me to consider the other sub-sections of section 94(1) of the Act.

30. The result is that at the assessment date, Mr Sharman was not qualified for DSP and I find accordingly. This means that the Respondent’s original decision to cancel Mr Sharman’s DSP was correct.

    DECISION

31. I affirm the reviewable decision.

I certify that the preceding  69 (sixty-nine) paragraphs are a true copy of the reasons for the decision herein of Mr C Ermert, Member

....................[sgd]..........................

Associate

Dated   29 June 2016

Date of hearing       30 May 2016
Advocate for the Applicant	Mrs Elizabeth Sharman
Advocate for the Respondent	Mr Joshua Lessing
Solicitors for the Respondent	Sparke Helmore Lawyers