Sharpe and Secretary, Department of Social Services (Social services second review) - [2024] AATA 565

Sharpe and Secretary, Department of Social Services (Social services second review) [2024] AATA 565 (3 April 2024)
Division:GENERAL DIVISION
File Number: 2022/0051
Re:John Sharpe
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member L M Gallagher
Date:3 April 2024
Place:Perth

The Reviewable Decision, being the decision of the AAT1 dated 15 November 2021, to reject the Applicant’s claims for the Disability Support Pension lodged on 24 August 2017, 30 May 2019 and 1 December 2020, is affirmed.
......................[Sgd]..................................................
Member L M Gallagher
CATCHWORDS
SOCIAL SECURITY – disability support pension, whether applicant’s claimed conditions were fully diagnosed, fully treated and fully stabilised – whether Applicant’s impairments attracted an impairment rating under the Social Security (Tables for the assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – decision under review affirmed.
LEGISLATION
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) – ss 5, 7, 7(2), 7(3), 7(4), 7(5).
Social Security Act 1991 (Cth) – ss 94(1)(a), 94(1)(b), 94(1)(c)(i), 94(2), 94(2)(aa), 94(3B), 94(3C), 94(5).
Social Security (Administration) Act 1999 (Cth) – ss 109(2), 147, cl 4(1) sch 2.
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 – ss 3, 5(2), 6(1), 6(3), 6(4), 6(7), 6(8), 8(1), 8(2), 10(1).
CASES
Budisa and Secretary, Department of Social Services [2014] AATA 79
Gallacher v Secretary, Dept of Social Services [2015] FCA 1123
Larkin and Secretary, Department of Social Services [2018] AATA 342
Minister for Home Affairs v G and Another [2019] FCAFC 79
Re Fanning and Secretary, Department of Social Services [2014] AATA 447
SECONDARY MATERIALS
Australian Government ‘Guides to Social Policy Law; Social Security Guide’ (version 1.314, 5 February 2024) – ss 3.6.3, 3.6.3.05
REASONS FOR DECISION
Member L M Gallagher
3 April 2024
THE APPLICATION

The Applicant seeks review of a decision of the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1), dated 15 November 2021 that affirmed three decisions of Authorised Review Officers (AROs) of Services Australia, each dated 15 March 2021,[1] to reject the Applicant’s three claims for Disability Support Pension (DSP) (the Reviewable Decision).[2]
[1] R1, T81, T82 and T83.
[2] R1, T2.
ISSUE
The issues for determination in this matter are whether, at the dates of the Applicant’s respective claims for DSP, being:
·First claim - 24 August 2017;[3]
[3] R1, T25 and R2, T92.
·Second claim - 30 May 2019;[4] and
[4] R1, T45 and R2, T93.
·Third claim - 1 December 2020,[5]
(a)The Applicant suffered from a physical, intellectual or psychiatric impairment or impairments; and if so,
(i)Whether the Applicant’s impairments were fully diagnosed, fully treated and fully stabilised and receive an impairment rating of 20 points or more under tables in the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination) (the Impairment Tables); and if so,
(ii)Whether those 20 impairment points are achieved under a single Impairment Table such that the Applicant has a severe impairment; and
(b)The Applicant has a continuing inability to work (CITW), which includes:
(i)That he be unable to work for 15 hours or more per week, within the next two years, with intervention; and
(ii)If, and only if, the Applicant does not have a severe impairment, the Applicant has actively participated in a program of support (POS).
[5] R1, T70.
If, and only, if, the Applicant is found to satisfy the qualification criteria for DSP for one or more of his claims, the Tribunal is also required to consider the date of effect of the Applicant’s claim or claims.[6]
BACKGROUND
[6] See s109(2) of the Social Security (Administration) Act 1999 (Cth) (the Administration Act), which provides that when a decision is appealed to an ARO more than 13 weeks after the original decision, any favourable decision takes effect from the day the appeal to the ARO was lodged, and not the date of the claim.
See also s147, Item 8 of the Administration Act, which provides that when a decision is appealed to the AAT1 more than 13 weeks after notice of the decision of the ARO (as in the present matter), any favourable decision takes effect from the day the appeal to the AAT1 was lodged, and not the date of the claim.
Applicant’s first claim
On 24 August 2017, the Applicant lodged a claim for DSP with the Agency, in relation to his claimed:[7]
ABI Acquired brain injury, seizures, Migraine and sinus headaches, chronic pain back and right knee from compression fractures
(the first claim).
[7] R2, T92, p 786.
On 31 August 2017, the Agency rejected the Applicant’s first claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.[8]
[8] R1, T27.
Following an Employment Services Assessment (ESA) of the Applicant on 13 September 2017, it was reported that:[9]
(a)There was medical evidence to demonstrate that the Applicant suffered from migraine, osteoarthritis and vertigo conditions.
(b)The Applicant had a baseline work capacity for 8 to 14 hours per week.
(c)The Applicant had capacity to work 15 to 22 hours per week within two years with intervention.
[9] See ESA Report dated 26 September 2017 at R1, T31.
On 15 November 2017, the Agency made a further decision to reject the Applicant’s first claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables[10] (Original Decision first claim).
[10] R1, T33, p 484.
A further ESA of the Applicant on 5 April 2019 reported findings in keeping with the ESA conducted on 13 September 2017.[11]
[11] See ESA Report dated 8 April 2019 at R1, T43.
Applicant’s second claim
On 30 May 2019, the Applicant lodged a further claim for DSP with the Agency, in relation to:[12]
Initial severe left ear infection. Chronic congestive problems. Left side of head migraine headaches and sinus headaches with visual aura. Benign positional vertigo, fatigue. Compression fractures, osteoarthritis back and right knee. Seizures…
(the second claim).
[12] R2, T93, p 838.
On 22 June 2019, the Agency rejected the Applicant’s second claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables[13] (Original Decision second claim).
[13] R2, T94.
Applicant’s third claim
On 1 December 2020, the Applicant lodged a further claim for DSP with the Agency, in relation to his claimed traumatic brain injury (TBI), migraine, vertigo and ankylosing spondylitis (the third claim).[14]
[14] R1, T70, p 591.
Following a face to face job capacity assessment (JCA) on 18 January 2021, it was reported that:[15]
(a)The Applicant’s TBI, osteoarthritis, migraine, chronic pain and visual loss conditions were fully diagnosed, but not fully treated or fully stabilised.
(b)The Applicant had a baseline work capacity for 8 to 14 hours per week.
(c)The Applicant had capacity to work 15 to 22 hours per week within two years with intervention.
[15] JCA report dated 29 January 2021: R1, T73.
On 1 February 2021, the Agency rejected the Applicant’s third claim for DSP on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables[16] (Original Decision third claim).[17]
[16] R2, T95.
[17] Original Decision claim 1, Original Decision claim 2 and Original Decision claim 3 are referred to together, as the Original Decisions.
Further assessments and review decisions to date
On 10 March 2021, a Health Professional Advisory Unit (HPAU) report provided the opinion that:[18]
(a)The Applicant’s TBI, vertigo and migraine conditions were not fully diagnosed.
(b)The Applicant’s osteoarthritis and chronic sinusitis conditions were fully diagnosed, but not fully treated or fully stabilised.
[18] R1, T 79.
The Applicant requested a review of the Original Decisions.[19]
[19] R1, T75, T76 and T77.
On 15 March 2021, an ARO of the Agency affirmed the Original Decisions on the basis the ARO considered that while several of the Applicant’s claimed conditions were fully diagnosed, none of the conditions were fully treated and fully stabilised and hence there could be no impairment ratings[20] (the ARO Decisions).
[20] R1, T81, T82 and T83.
On 9 September 2021, the Applicant applied to the Administrative Appeals Tribunal (Tribunal) for review of the ARO Decisions.
A further face to face ESA of the Applicant was conducted on 21 September 2021, which reported that:[21]
(a)The Applicant’s TBI, osteoarthritis (knees), migraine, chronic pain and visual loss were fully diagnosed, but not fully treated or fully stabilised.
(b)The Applicant had a baseline work capacity for 8 to 14 hours per week.
(c)The Applicant had capacity to work 15 to 22 hours per week within two years with intervention.
[21] See ESA Report dated 21 September 2021 at R1, T2, pp 321 to 330.
On 15 November 2021, the AAT1 made the Reviewable Decision.[22] The AAT1 found that the Applicant’s:
[22] R1, T2.
(a)TBI; and
(b)osteoarthritis conditions
were fully diagnosed, but not fully treated or fully stabilised; and
(a)atypical facial pain/jaw pain/neuralgia;
(b)sinusitis headache/migraine;
(c)vertigo and seizures;
(d)major depression;
(e)sensori-neural hearing loss;
(f)ankylosing spondylitis; and
(g)diagonal diplopia,
were not fully diagnosed, and hence none of the Applicant’s claimed conditions could attract an impairment rating.
On 5 January 2022, the Applicant applied to the Tribunal’s General Division for review of the Reviewable Decision.[23]
[23] R1, T1.
RELEVANT LEGISLATION AND PRINCIPLES
The statutory principles relevant to the Applicant’s application are contained in the
Social Security Act 1991 (Cth) (the Act), the Administration Act, the Determination and the Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth) (the POS Determination).
The Guides to Social Policy Law: Social Security Guide (the Guide) assists those who administer the Act.[24] As established in Minister for Home Affairs v G and Another [2019] FCAFC 79 (G), the Tribunal is to apply Ministerial policy, unless there are cogent reasons not to do so.[25]
[24] Australian Government ‘Guides to Social Policy Law; Social Security Guide’ (version 1.314, 5 February 2024)
[25] G at [57]-[62].
The Guidelines to the Tables for the Assessment of Work-related Impairment for DSP (the Impairment Guidelines) provide further explanation of the Impairment Tables in the Determination and include background information as well as case studies.[26]
[26] Section 3.6.3 of the Guide.
Qualification criteria

24.     Section 94 of the Act sets out the qualification criteria for DSP. For present purposes,
the three primary requirements are that:
(a)The person has a physical, intellectual or psychiatric impairment;[27]
(b)The person’s impairment is of 20 points or more under the Impairment Tables;[28] and
(c)The person has a CITW.[29]
[27]    Section 94(1)(a) of the Act.
[28]    Section 94(1)(b) of the Act.
[29]    Section 94(1)(c)(i) of the Act.

The determination of an impairment rating and the assessment of CITW are two distinct assessments based on two different DSP qualification criteria. When assessing qualification for DSP, the requirement for the person to have an impairment rating of at least 20 points under the Impairment Tables and the requirement that the person has a CITW, are of equal importance.[30]
[30] Topic 3.6.3.05 of the Guide.
In accordance with cl 4(1) of sch 2 to the Administration Act, the Tribunal is required to determine the Applicant’s eligibility for DSP on 2 August 2021, the date the claim was lodged.[31]
[31] Evidence, such as medical reports, that come into being after the relevant period may still be relevant,
The Determination contains the Impairment Tables. The Impairment Tables set out the rules regarding when an impairment rating can be assigned as well as a system for rating impairment. The Impairment Tables are based on function rather than diagnosis. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.[32]
[32] Section 3 of the Determination.
The Impairment Tables are utilised to describe functional activities, abilities, symptoms and limitations; and are designed to assign a rating to determine the level of functional impact of impairment and not to assess conditions.[33]
[33] Section 5(2) of the Determination.
Section 6 of the Determination set out the rules for assessing the level of functional impairment of conditions and assigning the corresponding impairment ratings.
Section 6(1) of the Determination requires that a person’s impairment 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. To be given a rating under the Impairment Tables,
[34] Section 6(3) of the Determination. Refer also to ss 6(4) to 6(7) of the Determination.
the impairment must be permanent and be more likely than not, in light of available evidence, to persist for more than two years.[34]
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Impairment Tables. If an impairment has no functional impact, then no rating will be assigned.[35]
[35] Section 6(8) of the Determination.
Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.[36] Unless required by the Impairment Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.[37]
[36] Section 8(1) of the Determination.
[37] Section 8(2) of the Determination.
To select the applicable Impairment Table, one must take the following steps:[38]
(a)Identify the loss of function; then
(b)Refer to the Table related to the function affected; then
(c)Identify the correct impairment rating.
[38] Section 10(1) of the Determination.
Continuing inability to work, severe impairment and participation in a program of support
All of the criteria in s 94(2) of the Act must be satisfied in respect of the requirement that a person have a CITW under s 94(1)(c)(i) of the Act, unless a person is specifically exempted from this requirement. This includes active participation in a program of support and being unable to work for 15 hours or more per week, within the next two years, with intervention.
Section 94(2) of the Act is 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)… 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.)
In relation to s 94(2) of the Act, extracted at para [35] above, relevantly:
(a)The Tribunal has no power to dispense with the operation of the POS requirement in s 94(2)(aa) of the Act and it is irrelevant whether an Applicant was aware of the requirement or not;[39]
(b)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;[40]
(c)A person has actively participated in a POS if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection;[41] and
(d)Work means work that is for at least 15 hours per week on wages that are at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market.[42]
[39]    See Larkin and Secretary, Department of Social Services [2018] AATA 342 at [57] in which the Secretary referred to a number of authorities to this effect.
[40]    Section 94(3B) of the Act.
[41]    Section 94(3C) of the Act.
[42]    Section 94(5) of the Act.
With regards to participation in a POS, the POS Determination relevantly provides the following guidance:
(a)The relevant period for the POS is the period of 36 months ending immediately before the day on which the claim for DSP is made or is taken to have been made by the person;[43] and
(b)The requirements for active participation in a POS are contained in s 7 of the POS Determination.
(i)Generally, a person must have participated in the POS for at least 18 months during the relevant period.[44]
(ii)Sections 7(3)-7(5) of the POS Determination relate to situations where a person can participate in a POS for less than 18 months and still satisfy the POS requirement (provided that person had commenced in a POS prior to lodging their claim for DSP).[45]
[43]    Section 5 of the POS Determination.
[44]    Section 7(2) of the POS Determination.
[45]    See Budisa and Secretary, Department of Social Services [2014] AATA 79 at [33].
PROCEEDINGS AND MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 21 September 2023. The Applicant appeared via Microsoft Teams and was self-represented. The Respondent was represented by Ms Jacky Vetter, Special Counsel, HWL Ebsworth Lawyers, who appeared via Microsoft Teams.
At hearing, the Tribunal admitted the following documents into evidence:
(a)Respondent’s Section 37 T-Documents, labelled T1 to T91, consisting of pages 1 to 785, filed 10 March 2022 (R1);
(b)Respondent’s Supplementary Section 37 T-Documents, labelled T92 to T95, consisting of pages 786 to 849, filed 10 August 2022 (R2); and
(c)Respondent’s Statement of Facts, Issues and Contentions dated 10 August 2022, with List of Authorities (R3).
Having reviewed all the evidence before it, the Tribunal is satisfied that both parties were provided an opportunity to address the evidence.
Applicant’s evidence
During cross-examination, the Applicant said he last saw a specialist, Dr Chady Sader (Ear, Nose and Throat (ENT) Surgeon) for his sinusitis in 2016, who had suggested he see a headache specialist or neurologist.[46] The Applicant said he had also seen Dr John Lindsey (ENT Surgeon) in 2015.[47]
[46] Transcript, p 16.
[47] Transcript, p 16.
When asked about taking Lyrica in 2015, the Applicant said he had only ever been prescribed it twice by his General Practitioner (GP) and did not take any medication after that.[48]
[48] Transcript, p 17.
The Applicant said that in relation to his migraines, he was referred to the neurology department at Fiona Stanley Hospital in October 2016, however he did not attend his assessment in August 2018 because no one told him about it.[49]
[49] Transcript, p 17.

The Applicant said that he worked as a carer from 2010 to 2017, not 2018 as recorded by Centrelink.[50] The Applicant said that when he first started working as a carer, he had about five clients.[51] The Applicant said that by 2017, he had one client who lived across the road from him.[52] The Applicant said that this client moved to town for period of time, so he then had to drive to her home to provide care.[53]
[50] Transcript, p 21.
[51] Transcript, p 21.
[52] Transcript, p 21.
[53] Transcript, p 22.
When asked, the Applicant said that in 2017, he did not drive to his medical appointments.[54] The Applicant said that rather, he would attend the practice following on from one of his two-monthly trips into town to do his shopping.[55] The Applicant said he would do this by using his electric wheelchair and attending as the first patient of the day, so he did not have to wait or worry about keeping appointment times.[56]
[54] Transcript, p 22.
[55] Transcript, p 22.
[56] Transcript, p 23.
In September 2020, the Applicant was referred to and attended another neurologist, Dr Julian Rodrigues, who told him he did not need to have an operation, rather that he had “other issues.”[57] The Applicant said he agrees with Dr Amirthalingam Prathalingam’s comment in his referral letter that at that time, the Applicant used an electric wheelchair but can move his left leg and right arm without any difficulty.[58]
[57] Transcript, p 18.
[58] Transcript, p 23. See R1, T2, p 203.
CONSIDERATION
Whether the Applicant suffered from a physical, intellectual or psychiatric impairment or impairments
The Tribunal is required to assess the medical evidence concerning the Applicant’s functional ability resulting from his impairments as at the dates of claim, being:[59]
(a)24 August 2017;
(b)30 May 2019; and
(c)1 December 2020.
[59] See [2], [4], [8] and [10] above.
It is not in dispute that the Applicant suffers from impairments.[60] The Tribunal finds on the evidence that at the dates of his three claims for DSP, the Applicant suffered from various impairments resulting in from his claimed conditions. The Tribunal notes the medical evidence in this regard and the Applicant’s evidence at hearing.[61]
[60] See R3, [9.1];Transcript, p 8.
[61] See R1, T4 to T73 and transcript pp 16 to 25.
As such, the Tribunal finds that the Applicant satisfies s 94(1)(a) of the Act.
Whether the Applicant’s impairments receive an impairment rating of 20 points or more
It is not in dispute that the Applicant has not participated in a POS for the required 18 months.[62] Further, the Applicant has not claimed, nor is there any evidence to suggest, that he has been exempted from this requirement.
[62] Transcript, pp 11 and 12. 18 months being 547 days. The Applicant actively participated in a POS for 0 days (the first claim), 125 days (the second claim) and 435 days (the third claim), respectively. See R1, T89, pp 694 to 696.
Therefore, in order for the present application to succeed, the Tribunal must be satisfied that at least one of the Applicant’s claimed conditions attaches 20 points for that single condition.[63] That is, the Tribunal must find that the Applicant suffers from a severe impairment.[64]
[63]The Tribunal emphasises that this is in addition to the requirement that an applicant demonstrate that he or
she is unable to work for 15 hours or more per week, within the next two years, with intervention.
[64] See [35] and [36] above.
Before considering whether the Applicant suffers from a severe impairment, the Tribunal must first determine whether any of the Applicant’s claimed conditions are fully diagnosed, fully treated and fully stabilised (FDTS). It is only then that a condition may be deemed permanent and therefore be rendered capable of being assigned impairment points under the relevant Impairment Tables (whether those points be 20 points or more under a single table or otherwise).
While the Applicant has not espoused a particular view as to whether he is severely impaired by either or both of his claimed conditions,[65] the Tribunal understands the Applicant’s position to be that the claimed conditions were FDTS at the relevant time.
[65] Similarly, the Applicant has not made submissions as to how many impairment points each claimed condition should be afforded.
The Respondent contends that the Applicant was not qualified for DSP at the relevant times as he did not have an impairment rating of at least 20 points and a CITW.[66]
[66] Transcript, p 8 and R3, [10.1], [19.3], [20.25] and [21.1].
The Respondent submitted that:
(a)the Applicant’s claimed conditions of:[67]
[67] Transcript, p 9 and R3, [10.2],
(i)Chronic sinusitis;
(ii)Osteoarthritis in the knees;
(iii)Atypical facial pain;
(iv)Migraine;
(v)Vertigo; and
(vi)Diagonal diplopia,
were fully diagnosed but were not fully treated or fully stabilised at the relevant time and do not attract impairment ratings under the Impairment tables; and
(b)The Applicant’s claimed conditions of: [68]
[68] R3, 10.3.
(i)TBI;
(ii)Major depression;
(iii)Sensorineural hearing loss;
(iv)Ankylosing spondylitis;
(v)Left ear, temple, upper and lower jaw pain and congestion;
(vi)ABI;
(vii)Seizures;
(viii)Chronic back pain;
(ix)Compression fractures of the right knee; and
(x)Osteoarthritis in the shoulders and back,
were not fully diagnosed, treated or fully stabilised and also do not attract impairment ratings under the impairment tables.
Chronic sinusitis and left ear, temple, upper and lower jaw pain and congestion
The Applicant has reportedly experienced symptoms of chronic sinusitis, congestion problems and pain, including headaches, jaw pain and thumping in his ears, for over 10 years.[69]
[69] See, for example R1, T5, p 427; T2, pp 131, 139, 149, 178, 212 and 220.
The Applicant was diagnosed with chronic sinusitis by Dr Prathalingam in 2012, who recommended the Applicant be treated with Phenoxymethypenicillin.[70]
[70] R1, T2, p 131.
CT scan observations of the Applicant’s brain in 2013 by Dr Richard Lewis (Otolaryngologist) were unremarkable. Dr Lewis reported he could not find any clinical cause for the Applicant’s pain and recommended MRI investigation.[71]
[71] R1, T2, p 212.
It was reported that having teeth removed and trialling nasal sprays (in 2013), having a routine septoplasty and removal of turbinates (in 2014) and daily sinus douches did not improve his sinus symptoms.[72]
[72] R1, T2, pp 135, 139, 232 and 263.
In 2015, Dr Peter Austin (GP) noted the Applicant had not had sinus surgery and had ongoing sinus pain.[73] In 2015, Dr Stuart M Miller (ENT Specialist) could not explain the Applicant’s symptom complex with one particular diagnosis and thought it unlikely that surgical treatment of the Applicant's sinus lesion would have any impact on the Applicant’s symptoms.[74]
[73] R1, T2, p 269.
[74] R1, T2, p 220.
From 2015 to 2018, various GPs and ENT specialists noted the Applicant’s reports of persisting jaw and sinus pain, headaches, thumping in his ear, with some suggesting the Applicant undergo surgery and other suggesting conservative treatment only.[75]
[75] R1, T2, pp 149, 175, 177, 178, 186, 187, 188, 191, 223, 255, 260.
A report on CT Brain and Paranasal sinuses dated 10 March 2020 by Dr Tamara Nowland (Radiologist), noted evidence of left maxillary sinus surgery and that the paranasal sinuses were otherwise clear.[76]
[76] R1, T2, p 288.
Most recently, the JCA assessor noted on 29 January 2021 that the Applicant reported that he doesn’t take any medication as he doesn’t like the side effects and doesn’t want to see a specialist.[77]
[77] R1, T73, p 599.
The Tribunal considers that based on the historical information addressed above, the Applicant’s chronic sinusitis was fully diagnosed at the relevant times. As to treatment, the Tribunal accepts the Applicant has tried phenoxymethylpenicillin, nasal spray, sinus douches, septoplasty and removal of turbinates, however these treatment measures were all between 2012 and 2014.
While the Tribunal also accepts that further surgical treatment (in this case, treatment of a cystic lesion in the Applicant left maxillary sinus) would be unlikely to impact the Applicant’s symptoms, the only treatment listed between 2016 and 2019 is unspecified medication and the Applicant does not wish to follow Dr Prathalingam’s advice that he attend another specialist.
The Tribunal considers the Applicant’s chronic sinusitis (and related left ear, temple, upper and lower jaw pain and congestion) requires further investigation to determine whether any further treatment would result in any functional improvement enabling the Applicant to undertake work,[78] it finds that as at the dates of the first, second and third claims:
(a)The Applicant’s left ear, temple, upper and lower jaw pain and congestion was not fully diagnosed; and
(b)The Applicant’s chronic sinusitis condition was fully diagnosed, but not fully treated and fully stabilised,
therefore these conditions attract no impairment points under the Impairment Tables.
[78] For completeness, there is no evidence before the Tribunal that the Applicant’s left ear, temple, upper and lower jaw pain and congestion, headaches and ear thumping symptoms caused any functional impairment at the relevant times.
Osteoarthritis (knees) and compression fractures of the right knee
In relation to the Applicant’s compression fractures, an Orthopaedic Surgeon from Denmark Medical Centre report on 29 May 2008 held that the Applicant had undergone an open reduction under local anaesthetic and the knee looked very stable at the end of the procedure.[79]
[79] R1, T1, p 9.
On 23 December 2016, Dr Austin noted that the Applicant reported ongoing knee issues and that he would review the Applicant when he had healed up completely.[80]
[80] R1, T2, pp 263 and 264. The healing appears to be referring to the polypoidectomy surgery the Applicant is recorded to have underwent earlier that month (R1, T2, p 264).
Medical records throughout 2017 include a diagnosis of osteoarthritis in the right knee, reports of right knee swelling and pain, the possibility of right knee surgery, developing degenerative change in the right knee and also bilateral knee pain.[81]
[81] See R1, T2, pp 178, 186, 187,188, 263 and 318.
From 2018 to 2020, the Applicant’s diagnosis continued to be referred to as ‘osteoarthritis right knee,’ with past and current analgesics, possible or planned future surgery or nil treatments indicated.[82]
[82] See R1, T2, pp 190, 191, 193, 200 and 202.
The Tribunal notes that following his surgery in 2008, and by 2017, the Applicant’s compression fractures had healed. Further, there is no evidence at any time as to the compression fractures being a condition requiring ongoing treatment or causing the Applicant any impairment that is unlikely to improve in the two years that followed.
Therefore, the Tribunal finds that the Applicant’s compression fractures condition was not fully diagnosed as at the dates of the first, second and third claims and attracts no impairment points under the Impairment Tables.
As to the Applicant’s osteoarthritis of the knee, the evidence indicates that while the possibility of surgery has been indicated, the Applicant does not wish to see a specialist. There is also no evidence that the Applicant has explored any alternative treatment methodologies, which the Tribunal considers is reasonable in light of the HPAU assessor’s comment that the Applicant may benefit from further specialist referral for a second opinion.[83] Therefore, the Tribunal finds that the osteoarthritis of the knee was fully diagnosed, but not fully treated and fully stabilised as at the dates of the second and third claims[84] and attracts no impairment points under the Impairment Tables.
[83] R1, T79, p 614.
[84] The Applicant’s first claim did not include a claim for osteoarthritis of the knee. See [4] above.
Atypical facial pain
The Tribunal accepts that the Applicant has long standing chronic left sided atypical facial pain and refers to reports of Dr Austin and Dr John Lindsey (Physician) in this regard.[85]
[85] See R1, T2, p 143 and R1, T12, p 440.
The Applicant was prescribed with Pregabalin in 2015 for his facial pain,[86] however there is no evidence regarding his response to this treatment or discussion of any reasonable alternative treatment options.
[86] R1, T12, p 440.
As such the Tribunal finds that the Applicant’s atypical facial pain condition was fully diagnosed, but not fully treated and fully stabilised as at the dates of the first, second and third claims and attracts no impairment points under the Impairment Tables.
Migraine
The Tribunal finds that in relation to the first claim, the second claim and the third claim, the Applicant’s migraine condition was fully diagnosed, but not fully treated and fully stabilised and attracts no impairment points under the Impairment Tables. In making this finding, the Tribunal relies on the following:
(a)In 2016 and 2017, it was recommended the Applicant see a headache specialist or neurologist and a neurology referral was made and accepted. Dr Austin’s diagnoses of the Applicant during that time included ‘migraine.’ No past, present or future treatment was recorded.[87]
(b)On 7 August 2018, the Applicant did not attend his appointment with Neurology at Fiona Stanley Hospital and no further appointments were made.[88] From 2018 to 2020, Dr Austin and Dr Prathalingam continued to list the Applicant’s diagnoses to include ‘migraine’ or ‘migraine headaches’ and list his related treatment as ‘medications’ or ‘anti-migraine medication.’[89]
(c)It appears that in September 2020, Dr Prathalingam sought advice from Dr Rodrigues as to the Applicant’s neurological status,[90] however no report has been produced to the Tribunal in this regard.
(d)In 2021, the HPAU assessor noted Dr Prathalingam would like a second opinion regarding the Applicant’s migraine condition, however the Applicant did not want to attend a specialist.[91]
(e)Therefore, the Tribunal considers that while the Applicant’s migraine condition diagnosis is longstanding, the extent of treatment is limited to ‘migraine medication,’ the specifics of which are not detailed in the evidence. The Applicant did not undertake the recommended specialist neurological testing for which he was referred.
[87] R1, T2, pp 223, 225, 179 and 187.
[88] R1, T2 p 226.
[89] R1, T2, pp 190, 191, 200, 206 and 551.
[90] R1, T2, p 203.
[91] R1, T79, p 611.
Vertigo
The Tribunal finds that in relation to the first claim, the second claim and the third claim, the Applicant’s vertigo condition was fully diagnosed, but not fully treated and fully stabilised and attracts no impairment points under the Impairment Tables, as follows:
(a)In 2017 and 2018, the Applicant’s vertigo diagnosis was listed as ‘permanent’ and while it was reported the Applicant has been trialled on vertigo medication, no past, present or future treatment was recorded.[92]
(b)In 2021, the HPAU assessor noted Dr Prathalingam would like a second opinion regarding the Applicant’s vertigo condition, however the Applicant did not want to attend a specialist.[93]
(c)Therefore, the Tribunal considers that the Applicant has been treated only with non-specific vertigo medication and did not undertake the recommended specialist assessment for which he was referred.
[92] R1, T2, pp 179, 186, 187, 188, 190, 191, 193, 196, 255 and 259.
[93] R1, T79, p 611.
Traumatic Brain Injury
In relation to the first claim, the second claim and the third claim, the Tribunal finds that the Applicant’s TBI was not fully diagnosed and attracts no impairment points under the Impairment Tables, for the following reasons:
(a)Radiology of the Applicant’s head, brain and sinuses in 2019 and 2020 were reported to show mild atrophy of the right temporal lobe due to trauma.[94]
(b)In 2020, Dr Prathalingam referred to the Applicant’s diagnoses as including ‘traumatic brain damage’ and listed treatment as migraine medication/physiotherapy (past), nothing (current) and neurological advice/as required (planned).[95] Medical certificates issued by Dr Prathalingam in 2021 and 2022 made similar references.[96]
(c)Therefore, while past therapy has included physiotherapy, there is no evidence of any other treatments or alternatives being trialled or any evidence that the Applicant has undertaken the recommended specialist neurological assessment.
[94] R1, T2, p 205 and 234.
[95] R1, T2, p 206 and T63, p 551.
[96] R1, T2, p 207 and T86, p 633.
Chronic back pain
The Tribunal accepts the Applicant was diagnosed with chronic back pain by Dr Austin in 2016.[97] A number of treatment methods and mobility needs were identified,[98] and reiterated in 2017 in the Applicant’s GP Management Plan.[99]
[97] See R1, T2, p 169.
[98] R1, T2, p 169.
[99] R1, T2, p 180.
No other evidence regarding diagnosis, evidence of treatment or specialist referral or investigation has been provided.
As such the Tribunal finds that the Applicant’s chronic back pain condition was not fully diagnosed as at the dates of the first, second and third claims and attracts no impairment points under the Impairment Tables.
Diagonal diplopia (double vision)
The Applicant’s ‘double vision’ was recorded by Dr Austin on 14 October 2016[100] and by Dr Martin Anderson, Optometrist, on 11 June 2020.[101]
[100] R1, T2, p 264.
[101] R1, T59, p 546.
The Tribunal has considered the available evidence and has found no information regarding the Applicant having undertaken treatment or assessment of his diagonal diplopia condition or any reports or records regarding any functional impairment arising from this condition.
As such the Tribunal finds that the Applicant’s diagonal condition was not fully diagnosed as at the dates of the first, second and third claims and attracts no impairment points under the Impairment Tables.
Other conditions
With regard to the Applicant’s claimed:
(a)Major depression;
(b)Sensori-neural hearing loss;
(c)Ankylosing spondylitis;
(d)ABI;
(e)Seizures; and
(f)Osteoarthritis in the shoulders and back,
(the other conditions) the Tribunal is of the view that there is limited, if any, evidence available regarding these conditions from which the Tribunal can consider and determine whether any or all of them are fully diagnosed (or fully treated or fully stabilised).
That being so, the Tribunal finds that the Applicant’s other conditions were not fully diagnosed as at the dates of the first, second and third claims and attract no impairment points under the Impairment Tables.
Whether the Applicant has a continuing inability to work
As noted above, it is not in dispute that the Applicant has not participated in a POS for the required 18 months.[102]
[102] See [50] above.
For completeness only, the Tribunal notes that the available ESA and JCA reports indicate that the Applicant would have the capacity to work 15 to 22 hours per week within two years, with intervention.[103]
[103] See [6], [8] and [12] above.
Therefore, on the available evidence the Applicant’s first claim, second claim and third claim are likely to have failed:
(a)Regardless of whether any or all of the claimed conditions were FDTS; and
(b)If any or all of the claimed conditions had been found to be FDTS, regardless of whether 20 impairment points were assigned under a single condition, or cumulatively.
CONCLUSION
The Tribunal accepts that, at the dates of the first claim, the second claim and the third claim, the Applicant suffered from medical conditions impacting his health such that he satisfies s 94(1)(a) of the Act. However, the Tribunal has found none of these conditions were FDTS at the relevant times, and hence cannot be considered under the Impairment Tables for an impairment rating.

This being so, the Applicant fails to satisfy the second qualification criterion under s 94(1)(b) of the Act and in turn fails to qualify for DSP.
DECISION
The Reviewable Decision, being the decision of the AAT1 dated 15 November 2021, to reject the Applicant’s claims for the Disability Support Pension lodged on 24 August 2017, 30 May 2019 and 1 December 2020, is affirmed.

I certify that the preceding 93 (ninety three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher

...........................[Sgd]...........................................
Associate
Dated: 3 April 2024

Date of hearing: 21 September 2023

Applicant’s Representative: Self-represented

Respondent’s Representative: Ms Jacky Vetter, HWL Ebsworth Lawyers

but only insofar as they are referable to the Applicant’s condition or conditions during the relevant period (Re Fanning and Secretary, Department of Social Services[2014] AATA 447, Deputy President Handley at 473 [31]; affirmed by the Federal Court of Australia in Gallacher v Secretary, Dept of Social Services [2015] FCA 1123 at [27]-[28].

Date of hearing:	21 September 2023
Applicant’s Representative:	Self-represented
Respondent’s Representative:	Ms Jacky Vetter, HWL Ebsworth Lawyers