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

Shehata and Secretary, Department of Social Services (Social services second review) [2020] AATA 2454 (12 May 2020)
Division:GENERAL DIVISION
File Number: 2018/5712
Re:Samy Shehata
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member K. Parker
Member J. Griffin
Date:12 May 2020
Place:Melbourne

The Tribunal affirms the Decision Under Review.
..........................[sgd]..............................................
Member K. Parker
Catchwords
SOCIAL SECURITY – claim for disability support pension – applicant suffered from multiple physical and mental health conditions – whether conditions were fully diagnosed, treated and stabilised and likely to persist for more than two years – applicant was not enrolled in a program of support – whether applicant had a “severe impairment” – applicant’s permanent conditions did not attract an impairment rating of 20 points or more under any single impairment table – “continuing inability to work” eligibility requirement not met – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
Legislative Instruments
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member K. Parker
Member J. Griffin
12 May 2020
INTRODUCTION

The Applicant, Mr Samy Shehata, suffers from multiple physical and mental health conditions which result in functional impairment affecting his ability to work. As a result, Mr Shehata has applied to receive the disability support pension (DSP) under the Social Security Act 1991 (Cth) (the Act) (DSP claim).
By making this application, Mr Shehata seeks review of a decision made by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1) on 4 September 2018 (Decision Under Review). The AAT1 decision affirmed a decision by an Authorised Review Officer (ARO) of Centrelink made on 18 June 2018 which in turn, affirmed an earlier decision by Centrelink to reject Mr Shehata’s DSP claim.
On 24 October 2018 the Respondent, Secretary, Department of Social Services (Secretary), lodged a set of documents pursuant to its obligations under s 37 of the Administrative Appeals Tribunal Act 1975 (Cth) (T-Documents) comprising 245 pages.
On 25 April 2019, Mr Shehata lodged a letter prepared by his treating general practitioner, Dr R. Maccar, from the Epping Family Medical Centre.[1]
[1] Refer Exhibit “A1”.
On 22 August 2019, the Secretary lodged a supplementary set of documents (ST-Documents) comprising 825 pages and the Secretary’s Statement of Facts, Issues and Contentions (Secretary’s Submissions).
This application was listed for hearing on 5 September 2019. It became necessary to adjourn the hearing to allow for an Arabic (Egyptian) interpreter to be present to assist Mr Shehata to give evidence to the Tribunal. Mr Shehata was represented at the hearing by his son, Mr Anthony Shehata (who will be referred to in these reasons as Anthony). After the hearing on 5 September 2019, Mr Shehata lodged further and extensive documentation with the Tribunal. The hearing resumed and concluded on 4 December 2019.
For the reasons outlined in these Reasons for Decision, the Tribunal finds that as at the relevant qualification period, Mr Shehata did not qualify for the DSP under the Act. Accordingly, the Tribunal affirms the Decision Under Review.
LEGISLATIVE FRAMEWORK
Section 94 of the Act sets out the qualification requirements for the DSP as follows (as relevant to this application):
(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;
(ii)the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
…
Note 2:     For Impairment Tables see subsection 23(1) and sections 26 and 27.
…
(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.
Note:    For work see subsection (5).
(3)In deciding whether or not a person has a continuing inability to work because of an impairment, the Secretary is not to have regard to:
(a)the availability to the person of a training activity; or
(b)the availability to the person of work in the person's locally accessible labour market.
(3A)…
Severe impairment
(3B)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.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a)is unlikely to need a program of support; or
(b)is likely to need a program of support provided occasionally; or
(c)is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
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.
…
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments;
(a)      education;
(b)      pre-vocational training;
(c)      vocational training;
(d)      vocational rehabilitation;
(e)      work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person’s locally accessible labour market.
“Impairment Tables” are defined in s 23 of the Act to mean the tables determined by an instrument under s 26(1). The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Determination) prescribes a set of tables for assessing the degree of impairment caused by a permanent condition or conditions more likely than not to persist for more than two years (Impairment Tables). The Impairment Tables assign ratings to determine the level of the functional impact.
“Impairment” is defined in s 3 of the Determination to mean:
a loss of functional capacity affecting a person’s ability to work that results from the person’s condition.
The following subsections of s 6 of the Determination are relevant to the assessment of impairment ratings:
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
Note:   For permanent see subsection 6(4).
(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.
Example: A condition may last for more than 2 years, but the impairment resulting from that condition may be assessed as likely to improve or cease within 2 years – if this is the case, an impairment rating under the Tables cannot be assigned to the impairment.
Permanency of conditions
(4)For the purposes of paragraph 6(3)(a) 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
Note:    For fully diagnosed and fully treated see subsection 6(5).
(c)the condition has been fully stabilised; and
Note:    For fully stabilised see subsection 6(6).
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
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.
Note:    For reasonable treatment see subsection 6(7)
Reasonable treatment
(7) For the purposes of subsection 6(6), reasonable treatment is treatment that:
(a) is available at a location reasonably accessible to the person; and
(b) is at a reasonable cost; and
(c) can reliably be expected to result in a substantial improvement in functional capacity; and
(d) is regularly undertaken or performed; and
(e) has a high success rate; and
(f) carries a low risk to the person.
Subsection 6(1) in Part 2 of the Determination provides that the impairment of a person must be assessed based on what they can, or could do, not based on what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history in relation to the condition causing the impairment must be considered before applying the tables to a person’s impairment.
The person claiming DSP is required to demonstrate that they have a “continuing inability to work”. As part of doing so, the person must show that they have “actively participated in a program of support” under subsection 94(2)(aa) of the Act, unless they have a severe impairment, i.e. they are assigned 20 points or more under one Impairment Table as a result of their permanent condition or conditions.
In considering whether a person has actively participated in a program of support, the Tribunal must consider ss 9 and 10 of the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination) which provide as follows:
9. Matters to be taken into account relating to the program of support
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must consider whether the program of support:
(a)      was provided by a designated provider; and
(b) was specifically tailored to address the person’s level of impairment, individual needs and barriers to employment; and
(c) provided vocational, rehabilitation or employment services with a particular focus on developing skills the person requires to improve the person’s capacity to prepare for, find or maintain work (including self‑employed work); and
(d) includes at least one of the following activities:
(i)       job search;
(ii)      job preparation;
(iii)      education and training;
(iv)      work experience;
(v)      employment;
(vi)      return to work;
(vii)     vocational or occupational rehabilitation;
(viii)      injury management; and
(ix) an activity designed to assist the person to prepare for, find or maintain work.
10. Material to be taken into account
In deciding whether the Secretary is satisfied that a person has actively participated in a program of support for the purposes of paragraph 94(2)(aa) of the Act, the Secretary must take into account any relevant material or document that:
(a)      relates to the person’s participation in a program of support; and
(b) relates to a program of support participated in during the relevant     period.
ISSUES
The issues to be determined, as at the time of the Qualification Period, are:
(a)whether Mr Shehata had any physical, intellectual, or psychiatric impairments to meet the eligibility requirement under s 94(1)(a) of the Act;
(b)whether the conditions causing those impairments were permanent (requiring an assessment of whether they were fully diagnosed, treated, and stabilised, and were more likely than not to persist for more than two years);
(c)whether Mr Shehata met the “continuing inability to work” eligibility requirement under s 94(1)(c) of the Act; and
(d)provided the eligibility requirements under s 94(1)(a) and (c) were met, whether Mr Shehata’s impairments arising from his permanent conditions, together or separately, attracted a rating of 20 points or more under the Impairment Tables to meet the further eligibility requirement under s 94(1)(b) of the Act.
QUALIFICATION PERIOD
Under the Act, a claim for the DSP must be assessed by reference to a specific time period. This is known as the qualification period and it runs for a period of 13 weeks commencing on the day the person makes their DSP claim.
On 28 August 2017, Mr Shehata contacted Centrelink to give notice of his intention to lodge a claim for the DSP. He lodged the DSP claim form with Centrelink on 30 August 2017.[2] Under s 13 of the Social Security (Administration) Act1999 (Cth) (Administration Act), Mr Shehata’s DSP claim is taken to have been made on 28 August 2017, because he lodged his claim form within 14 days after telephoning Centrelink.
[2] Refer T-Documents T43.
Accordingly, the relevant qualification period by which the Tribunal must undertake its assessment extends from 28 August 2017 for a period of 13 weeks ending on 27 November 2017 (Qualification Period).
EVIDENCE BEFORE THE TRIBUNAL
Mr Shehata’s DSP Claim Form
At the time Mr Shehata made his DSP claim, he was 60 years old. In the DSP claim form, Mr Shehata stated that he was married and had one child under the age of 18. Mr Shehata’s youngest child lives at home with him and his wife and he have two other adult children. Mr Shehata indicated on the form that he arrived in Australia from Egypt in 1989 and was conferred Australian citizenship in 1991. He indicated he had a bachelor’s degree; was qualified as a mechanical engineer in Egypt; he worked “in retail” from 2000 to 2015; and was unemployed at the time he made his claim.
On the DSP claim form, Mr Shehata cited back problems (disc bulges), chronic heart disease, unstable angina, chronic shoulder pain, neck issues and arthritis when asked to list his “disabilities, illnesses or injuries”. He indicated that he required support from a carer at his home and that his life expectancy might be significantly reduced within the next few years due to his condition of “unstable heart disease”. No further evidence was given at the hearing that Mr Shehata, in fact, had a carer at home to assist him. He lived independently with his family, although there was evidence before the Tribunal that a person had been engaged to tend to the garden.
Mr Shehata indicated on the claim form that he was currently receiving treatment in the form of “medication” and “physical therapy” and that he was expecting to have an operation on his shoulder in the future because of “torn tendons”. He stated that his medication had caused “laziness and body pain” and that the anti-depressant medication had caused “drowsiness and disorientation”.
Mr Shehata was asked to indicate on the claim form whether he had participated in any programs to help him find work, stay in a job, return to work, manage his injury or help him with vocational rehabilitation or gain new skills or work experience or training in the last three years. He answered “No”. Mr Shehata also indicated on that claim form that he was “Not sure” whether he could do any activities that would help him to prepare for work.[3]
[3] Refer T-Documents T43/161.
First Job Capacity Assessment (JCA) Report – June 2016
A face-to-face job capacity assessment was undertaken of Mr Shehata by a registered psychologist (assisted by a registered occupational therapist) in June 2016.
The JCA assessors found that Mr Shehata had “[d]iscogenic lower back pain with neck pain” and that this condition was fully diagnosed, treated and stabilised. The assessors noted that Mr Shehata reported that he was limited to 30 minutes of walking due to leg pain, he was easily able to bend to knee level and straighten up again and that he was able to sit for an hour before needing to stand.[4] He was assessed as having nil functional impairment to his spinal function.[5]
[4] Ibid at T30/88.
[5] Ibid at T30/91.
The JCA assessors also accepted that Mr Shehata’s shoulder and upper limb condition was fully diagnosed. They noted that he had indicated that he was due to be reviewed by a specialist to determine if surgery was an option. They also noted that Mr Shehata had reported that he had reduced left shoulder movement and some weakness but was able to handle most objects. This condition was not considered to fully treated and stabilised.
The assessors found that Mr Shehata had a permanent condition of “myocardial infarction (heart attack)” for which they considered had resulted in mild functional impairment under Table 1 and he should be assigned five points. The assessors noted in the report that Mr Shehata had reported that he experienced sporadic chest pain which was usually associated with stress when he worked in the business and when he engaged in physically demanding activities (e.g. climbing stairs).

The JCA assessors found that Mr Shehata had three other permanent conditions, namely “varicose veins”, “hypothyroidism” and “osteoarthritis in the knees” but for each, it was noted that Mr Shehata had confirmed with the assessors that these conditions were “chronic, well managed and has no/minimal impact”.
In this report, it was noted by the assessors that Mr Shehata had told them he was a half owner of a convenience store but had been unable to work in the store for years because “the stress involved caused his Angina symptoms”.[6] The assessors concluded that he would benefit from referral to a disability management service provided for specialised job search assistance.
[6] Refer T-Documents T30/95.
Second JCA Report – April 2017
A “file assessment only” JCA was undertaken by an accredited exercise physiologist on 19 April 2017.
The assessor indicated in his or her report that he or she had contacted Dr Maccar who had advised that all of Mr Shehata’s conditions were diagnosed as at September/November 2015 and that in relation to his neck and back nothing had changed and that in Dr Maccar’s opinion, a specialist’s opinion was not required. The assessor considered that Mr Shehata’s spinal conditions were not fully treated and stabilised because he had not seen a specialist for review, definitive diagnosis or treatment recommendations.[7]
[7] Ibid at T42/125.
The assessor made a referral for Mr Shehata to attend DES – Employment Support Service to receive employment services.[8]
[8] Ibid at T42/133.
DSP Medical Eligibility Assessment – September 2017
Centrelink arranged for a DSP medical eligibility assessment to be undertaken on 6 September 2017. The assessor was a psychologist. In performing the assessment, the assessor did not consider that contact by the assessor with Mr Shehata or his treating health professional was required.[9] The assessment was based on several medical and radiological reports and the job capacity assessment (JCA) performed on 28 April 2017. The assessor came to a view that none of Mr Shehata’s physical or mental health conditions were fully diagnosed, treated and stabilised.
[9] Ibid at T46/167.
Mr Shehata’s evidence at the hearing
At the hearing, Mr Shehata described the nature of the physical activities he was able to undertake as at the Qualification Period. He said they included accompanied car journeys for the purpose of shopping and attending weekly Church services; extended accompanied car journeys to Philip Island and Bendigo; recreational fishing on Port Phillip Bay; air travel to Queensland and Sydney; some volunteer work at the Applicant’s local Church involving the use of tools; assisting with the construction of garden beds at his home; helping other family members to care for his ill mother which included assisting in transferring his mother and shifting furniture.
Mr Shehata confirmed his involvement, since 2000, in the purchase and operation of a series of franchises trading as 7/11 stores. Mr Shehata currently owns a 7/11 franchise located in Chapel Street, Prahran in partnership with his brother-in-law and son Anthony. This franchise was purchased in 2014 or 2015. Mr Shehata was unsure of the exact date of purchase. The Applicant said that he initially worked at the Chapel Street 7/11 store for approximately three to four hours per day, four to five days per week. Mr Shehata told the Tribunal that he is no longer involved in the day-to-day activities of this business due to his back, shoulder and heart (angina) condition.
In September 2017, Mr Shehata twisted his knee and has had difficulty walking. He said he uses a walking stick at times, particularly in wet conditions. Apart from taking painkillers, Mr Shehata said no further treatment was recommended by his general practitioner or undertaken by his physiotherapist.
Attendance at pain management programs
On 19 April 2017, Mr Shehata attended Barbara Walker Centre for Pain Management at St Vincent’s Hospital (St Vincent’s).[10] Mr Shehata was referred to the Pain Centre at Bundoora Extended Care. In the referral letter, a physiotherapist from St Vincent’s recorded under the heading “On triage assessment” that Mr Shehata was concerned about returning to meaningful activities including work which he believed was contingent upon him eliminating his pain. The physiotherapist recorded that he had encouraged Mr Shehata to read about “pacing, as a paced approach is likely to be the best way towards increasing his activity levels. He explained to me that he attended a pain management program about 20 years ago, which was very effective for him and gave him 20 years of work”.[11]
[10] Refer Supplementary T-Documents ST2/478.
[11] Ibid at ST2/478.
Mr Shehata was seen by the “CTS – Pain” clinic (Pain Clinic) in August 2018. Clinical notes indicate that he declined to attend the group and that he was attending cardiac rehabilitation at that time.[12]
[12] Ibid at ST2/221 & 224.
Mr Shehata attended the clinic again on 31 January 2019 to be assessed for a six-week persistent pain group. He enrolled in a six-week pain management program in February 2019, and subsequently attended the program from 5 February 2019 to 19 March 2019 (i.e. after the end of the Qualification Period). Mr Shehata has not attended any further pain management sessions since this program. He said he endeavoured to continue his exercises independently at the Thomastown Recreation Centre gymnasium and hydro facilities.
Attendance at barista training course in Brisbane – March 2019
Mr Shehata confirmed that he accompanied his son on a trip to Brisbane in March 2019 to participate in a six-week training program which included a barista training course. He also attended meetings and appointments in Melbourne, some of which were for the purpose assisting his son in establishing a Coffee Club franchise located in Caroline Springs in 2019. Mr Shehata said he attended other appointments such as visiting his mother in hospital. Mr Shehata gave evidence that he currently assisted his son with the Coffee Club business from home by undertaking bookkeeping, payroll and making invoice data entries into an online accounting system.
At the hearing, Mr Shehata conceded that he had attended the above training course but said that he had paid the price for it. The Tribunal notes Ms Linda Ho’s (treating physiotherapist) report dated 23 May 2019 recording that Mr Shehata has had a “flare up of low back pain after a work training course in QLD – lots of prolonged sitting or standing” resulting in treatment in the form of suggested exercises, postural correction and soft tissue therapy.[13]
[13] Refer Supplementary T-Documents ST1/55.
Treatment by physiotherapist – Ms Linda Ho
Ms Ho commenced treating Mr Shehata on about 12 April 2016, as recorded in her letter to Dr Maccar of the same date.[14] She was focused on management of his lower back ache and bilateral shoulder dysfunction with the left more affected than the right. The treatment provided included suggested home exercises, postural correction and soft tissue therapy and the future management plans were recorded as follows:
Continue with maintenance program. Samy to be more consistent with exercises.
[14] Ibid at ST1/45.
Ms Ho provided a further report to Dr Maccar on 21 June 2016.[15] Much the same treatment was being provided to Mr Shehata as previously. Ms Ho reported a little improvement and that the maintenance management was going well until he aggravated his left shoulder. Ms Ho stated in the letter that she had reinforced the need to strengthen his shoulders to prevent chronic reaggravation of his shoulder issue. Ms Ho also recorded as follows:
Also had flare up of left low back pain with sciatica from driving to Phillip Island last weekend. Encouraged to go to pool and needs to work on losing weight.
[15] Ibid at ST1/47.
Ms Ho provided a further report to Dr Maccar on 27 January 2017.[16] This report records that Mr Shehata had experienced ongoing issues with shoulder pain, numbness in his hands at night and low back ache with mild referral on the left side.
[16] Ibid at ST1/49.
In a further report on 23 February 2017,[17] Ms Ho recorded that Mr Shehata was not getting as much referral down his left thigh but standing was still limited to about 10 minutes. The report records that his right hand was still getting number at night and that the “neuro” was advising a carpel tunnel syndrome operation.
[17] Ibid at ST1/51.
On 16 November 2017, coinciding with the end of the Qualification Period, Ms Ho prepared a comprehensive physiotherapy report in respect of Mr Shehata.[18] Ms Ho confirmed that Mr Shehata had been attending physiotherapy for the past five years, every two to three weeks, “to help alleviate his symptoms”. Ms Ho stated that Mr Shehata had been given an exercise program to do but she stated that due to his many limitations he was unable to do much because he experienced “flare ups”. Ms Ho confirmed that Mr Shehata was able to walk about 15 to 20 minutes and was able to use an exercise bike for up to 15 minutes at a time. Ms Ho stated he could only do one-kilogram exercises above shoulder height. Ms Ho stated that Mr Shehata attended hydrotherapy but found it difficult to bend to put on and off his swim wear, shoes and socks.
[18] Refer T-Documents T49/174.
In this report, Ms Ho also referred to a diagnosis of a recent strain to Mr Shehata’s right knee with meniscal and cartilage damage. She stated that Mr Shehata was scheduled for possible surgery for his knee, but he wanted to avoid the surgery as much as possible.
Ms Ho addressed the issue of Mr Shehata’s symptoms and the functional impact of his medical conditions as follows in this report:
Due to his neck, shoulder, back and knee issues, Samy’s functional capacity is quite limited. He is unable to bend and lift anything more than 5-7kgs, overhead max 2kgs. He is unable to be in one position for more than 10-15mins as his nerve pain starts in his back. His sit and walking capacity is about 15-20mins but he is unable to stand for more than 10mins before his nerve pain starts to radiate down the left hip.
Due to his condition, he has had to cut back on his duties at his store as he physically cannot do heavy, repetitive or prolonged tasks.
He tries to do a little housework and gardening to keep moving and occupied but each time he tries to push himself a little more his shoulders and low back flare up significantly. He has had to stop doing volunteer work at his church as his body gets too sore.
Samy has adhered to a diet plan set up by his GP over the last 6 months and has managed to lose nearly 10kgs. He aims to lose more but can only do it gradually as his body cannot tolerated exercises that are too forceful.
In a further report on 15 February 2018,[19] Ms Ho noted ongoing bilateral shoulder dysfunction and carpel tunnel syndrome in both of Mr Shehata’s hands. She also noted lumbar osteoarthritis and general deconditioning. Ms Ho noted:
Poor exercise tolerance and adherence. On a diet plan but has not been as good in past few months.
[19] Refer Supplementary T-Documents ST1/53.
The clinical notes of Ms Ho were also produced to the Tribunal. References by Ms Ho in those notes indicated that Mr Shehata was involved in the following activities at the times indicated below:
(a)on 7 June 2016, Mr Shehata helped with transfers of his mother in and out of the bed (using a slide sheet) and chair;[20]
[20] Ibid at ST1/34.
(b)on 21 June 2016, Mr Shehata travelled to Phillip Island “for a convention”;[21]
[21] Ibid at ST1/33.
(c)on 5 July 2016, Mr Shehata had “been too busy to do” exercises;[22]
[22] Ibid.
(d)on 13 January 2017, Mr Shehata “went fishing last week and right forearm sore since – had to hold onto clutch which was quite stiff for quite a while”;[23]
[23] Ibid at ST1/29.
(e)on 9 March 2017, Mr Shehata “did a bit of volunteer work for church on weekend – only about 30mins doing some work kneeling and using tools/back and right hip very sore after that”;[24]
[24] Ibid at ST1/25.
(f)on 23 March 2017, Mr Shehata had been doing his shoulder and static bike exercises but not every day as he had been “quite busy with week”;[25]
[25] Ibid at ST1/24.
(g)on 30 March 2017, Mr Shehata had reported that he had not done much exercise that week because he “had been quite busy”;[26]
[26] Ibid at ST1/23.
(h)on 11 May 2017, Mr Shehata had reported that he was going quite well until he had helped a friend do some work at his house the previous day and his “body bit more achey since. not seized up or any ref pain just more ache in back” and shoulders;[27]
[27] Ibid at ST1/22.
(i)on 25 May 2017, Mr Shehata had reported that he had done some work for the church and some work around the house and he felt more pain on those nights but that “most things manageable at the moment”;[28]
[28] Ibid at ST1/21.
(j)on 6 June 2017, Mr Shehata had reported that he was making some raised garden beds at his home which he was working on about 30 to 60 minutes per day. He reported that his forearms had ached from doing so but otherwise, he had “just usual aches”;[29]
[29] Ibid.
(k)on 22 June 2017, Mr Shehata reported having done some weeding in the backyard and that he had sat on a milkcrate for about 20 minutes. It was also noted that this had caused Mr Shehata to become quite sore and that two days later he was unable to move his back and he experienced referred pain down his right hip to his heel for which he was prescribed a Voltaren suppository and Lyrica;[30]
[30] Ibid.
(l)on 8 March 2018, Mr Shehata reported that his mother had moved back into his home in the previous month, so he had been busy looking after her;[31]
[31] Ibid at ST1/15.
(m)on 22 March 2018, Mr Shehata reported that he had been “very very busy” in the previous fortnight. Ms Ho noted as follows:[32]
[32] Ibid at ST1/14.
mother in hospital so going every morning to spend time with her. had an angiogram last week. wife had minor op. running around doing meetings for sons new business. no time for rest of ex at all. Sore in gen
(n)on 11 October 2018, Mr Shehata reported that he had been “quite sore” and had “gen aches”. Ms Ho also recorded the Mr Shehata has tried to walk when he had the chance, “but so busy with family and business”;[33]
[33] Ibid at ST1/9.
(o)on 3 January 2019, Ms Ho recorded that Mr Shehata has missed a few appointments as he was “busy and forgot”. He reported feeling more body stiffness and numbness in his right hand. He reported that there had been a lack of him exercising because “he had no time”;[34]
(p)on 17 January 2019, Ms Ho recorded that Mr Shehata had reported being “very busy and stressed, bank issues ongoing” and his son’s wedding was due to take place that weekend;[35]
(q)on 14 March 2019, Ms Ho recorded that Mr Shehata reported that he had been a “bit busy as getting ready for QLD training course”;[36]
(r)on 23 May 2019, Ms Ho noted as follows:[37]
very very sore. 6 weeks training in QLD involved lots of standing or sitting for long periods. was taught barista training, lots of presentations. son encouraged pt to do walking but did not use pool. low back aching the most.
(s)on 5 July 2019, Ms Ho noted as follows:[38]
very busy with getting new business up and running, opening day next thurs. trying to do 10mins of ex bike each day when has time.
[34] Ibid at ST/8.
[35] Ibid.
[36] Ibid at ST1/6.
[37] Ibid at ST1/5.
[38] Ibid at ST1/4.
CONSIDERATION
Considering the evidence in this application, the Tribunal is guided by the observations of Gyles J in the Federal Court of Australia decision of Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 (Harris) at paragraph [1]:[39]
…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 changes 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.
[39] Approved by Besanko J in Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [26] to [28]. The Harris case was appealed to the Full Court of the Federal Court in Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130 but the observations of Gyles J at first instance on this issue were not disturbed by the Full Court’s appeal decision. The approach to be taken was dictated by the terms of the legislation - Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286.
Is the first requirement under s 94(1)(a) of the Act met?
Section 94(1)(a) of the Act requires the Tribunal to determine whether, as at the time of the Qualification Period, Mr Shehata had a physical, intellectual or psychiatric impairment(s). Impairment as defined by s 3 of the Determination.
Both parties agreed that this requirement was met by Mr Shehata as at the Qualification Period. The Tribunal is satisfied on the medical evidence that the requirement under s 94(1)(a) of the Act was met because Mr Shehata’s medical conditions resulted in a loss of functional capacity which affected his ability to work.
Is the second requirement under s 94(1)(b) of the Act met?
The second requirement that Mr Shehata must meet is that his impairment(s) must attract a rating of 20 points or more, as assessed under one or more of the Impairment Tables. Section 6(3) of the Determination provides that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is “permanent” and the impairment resulting from that condition is more likely than not, in light of available evidence, to persist for more than two years. Under s 6(4) of the Determination, a condition is considered to be “permanent” if it was fully diagnosed, fully treated and fully stabilised and more likely than not to persist for more than two years as at the time of the Qualification Period.
Looking forward for a moment to the third requirement to be met under s 94(1)(c) of the Act, it was conceded by Mr Shehata and Anthony at the hearing that Mr Shehata had not participated in a program of support at all during the relevant 36-month period preceding the Qualification Period.
The Tribunal explained to Mr Shehata and Anthony at the hearing that this led to a necessary conclusion that the requirements under subsection 7(2) of Part 2 of the POS Determination had not been met by Mr Shehata. It also led to a necessary conclusion that the other “exceptions” under subsection 7(3), (4) and (5) could not possibly apply to Mr Shehata, because each of them relied upon at least some participation in a program of support during the relevant period. This meant that the only way for Mr Shehata to show that he met the “continuing inability to work” requirement under s 94(1)(c), was to demonstrate that he suffered from a “severe impairment” as at the Qualification Period. This in turn, required him to show that he had an impairment arising from a permanent condition or conditions that attracted 20-points or more under a single Impairment Table. It was for this reason, that the Tribunal adopted a focussed approach during the hearing of initially deciding whether Mr Shehata could be assigned 20 points for an impairment arising from his permanent conditions under any one table.
Heart conditions
Mr Shehata suffered cardiac arrest in 2010 which was treated with angioplasty and a stent inserted into his right coronary artery. A further angioplasty in 2013 revealed that Mr Shehata had suffered from spasms of the coronary arteries which was treated only with medication.
In a letter by Dr Chris Lim, Mr Shehata’s treating cardiologist, to Dr Maccar dated 24 May 2013, Dr Lim concluded that Mr Shehata had severe coronary vasospasm in multiple arteries and that his beta-blocker was probably exacerbating the vasospasm. Dr Lim recommended that his medication be switched to a calcium channel blocker, such as Diltiazem or Verapamil.[40] Dr Lim reviewed him four months later and concluded that the examination of Mr Shehata was unremarkable and that he did not “need to do anything further to him” and that he did not need to have a “stress test” as previously intended.[41]
[40] Refer Supplementary T-Documents ST2/524.
[41] Ibid at ST2/501.

In a further letter dated 31 October 2013, Dr Lim confirmed that Mr Shehata had “very severe multivessel coronary vasospasm that resolves completely with intracoronary nitrate” and that “his arteries look entirely okay”. Dr Lim stated that Mr Shehata had come in for an early review because he had felt some chest discomfort. Dr Lim stated that this was almost certainly due to the coronary vasospasm. Dr Lim noted that Mr Shehata had reported that he was feeling reasonably well. Dr Lim stated that Mr Shehata was able to exert himself and did not get any exertional-type symptoms and that “his pain seems to be associated with emotional stress”.[42]
[42] Ibid at ST2/496.
Dr Heath Adams, Cardiology Registrar, at St Vincent’s Hospital in a letter to Dr Maccar dated 20 February 2014, stated:[43]
…Samy comes to our clinic for secondary prevention measures after his inferior STEMI in 2012. He was recently seen by my colleague in the Clinic three months ago and at that time had his diltiazem commenced in favour of previously being on verapamil. Samy has been progressing well with one episode of atypical chest pain, he has had no shortness of breath and his exercise tolerance in improving.
Clinical examination was unremarkable with a blood pressure of 110/75 mmHg. Pulse rate was 60 beats per minute. He had a clear chest with no evidence of oedema.
I have reinforced to Samy the secondary prevention measures for ischaemic heart disease, particularly the importance of exercise and diet control in order to lose some weight. I have advised him to visit you and have six monthly lipids, blood sugar level, renal function as well as a urine analysis to further treat and decrease the risk of an acute coronary syndrome in the future.
In the meantime, we will catch up with Samy in 12 months unless there are any further problems.
[43] Refer T-Documents T25.
In a letter to Dr Maccar from Northern Health dated 2 October 2014, it was indicated that the author and Dr Lim had reviewed Mr Shehata and that he had reported that he had been feeling “very well” since his previous consultation and had not had any chest discomfort of the previous few months. It was also stated that Mr Shehata had not reported any shortness of breath and no palpitations.[44]
[44] Refer Supplementary T-Documents ST2/490.
In a medical report dated 28 March 2017, Dr Maccar stated that Mr Shehata had been diagnosed with “unstable angina”. In a more recent letter by Dr Maccar dated 6 March 2019 he stated as follows:[45]
Sammy(sic) sufferers(sic) angina for the past few years for which he has had multiple cardiologist involved with it diagnosis ranging between Prinzmetal angina and corollary muscular spasm. This condition causes him to suffer chest pains on mild exertion leading to him stopping any strenuous work. The treatment as per his cardiologist is only conservative in nature.
[45] Refer Exhibit “A1”.
The Tribunal notes from this letter that Dr Maccar does not appear to be certain about the appropriate diagnosis for Mr Shehata’s heart condition, i.e. whether he suffers from angina or vasospasm.
In a letter to Dr Maccar dated 9 March 2017, Dr Lim provided his opinion about Mr Shehata’s heart condition as follows:[46]
…Samy continues to remain quite well and his chest discomfort symptoms are not too bad. He finds that if he gets stressed for example when arguing with the kids he may get some chest discomfort.
His medications are essentially unchanged with Cartia, Monodur 120 mg, Cardizem CD 240 mg, Lipitor 80 mg, Probitor 20 mg, ranitidine, frusemide 40 mg.
He also describes some muscle aches and pains. There is a small possibility this could be statin induced myalgia. I have asked him to see if reducing the statin or stopping it for two weeks help things. If it does then may be he will need to have a reduced dose of statin. However, if it makes no difference at all to his muscle pains, I would definitely prefer that he continue on the Lipitor 80 mg.
At the moment, I am not too concerned about Samy’s atypical chest discomfort in response to emotional stress. It could possibly still be vasospasm. Stress testing is going to be difficult in him as we will have to stop the Cardizem before he goes on a stress test, but it can be done. I think if he is really having concerning angina type symptoms then the next best step would be just a repeat angiogram, but currently this is not necessary. I will catch up with him for routine review in one year’s time.
[46] Refer T-Documents T39/119.
Mr Shehata confirmed that he sought hospital treatment on 23 February 2018 (about four months after the end of the Qualification Period), due to chest pains he was experiencing at that time. According to the hospital discharge summary notes, the chest pains were experienced after he had moved a couch in his living room.[47] The discharge notes recorded that he felt sweaty but not short of breath, and was tight in the chest which was partially relieved with a “GTN tablet”.
[47] Refer Supplementary T-Documents T2/576.
A coronary angiogram was performed on 9 March 2018 from which Dr Lim made the following conclusions:[48]
CONCLUSIONS
1) RCA stent widely patent
2) No significant stenoses. Mild non-flow-limiting plaque only.
[48] Ibid at ST2/263.
On 25 May 2018, Dr Lim discharged Mr Shehata from the clinic after examination stating that the examination was unremarkable and that his blood pressure was “good”. Dr Lim reported to Dr Maccar that Mr Shehata’s stent was “widely patent” and that he had “no significant stenoses in the other vessels with only mild limiting plague”. It was noted that he had stopped taking Ikorel and that “he feels well with no chest discomfort”.[49]
[49] Ibid at ST2/460.
Based on the medical evidence set out in the above paragraphs, the Tribunal finds, on the balance of probabilities, that as at the Qualification Period Mr Shehata was suffering from “ischemic heart disease” and “multivessel coronary vasospasm”. The Tribunal is not satisfied that it was clear from Dr Lim’s more recent opinion referred to above, that Mr Shehata was also suffering from “angina”. Dr Lim’s earlier opinion as at 2013 was that Mr Shehata has severe coronary vasospasm. The Tribunal prefers the evidence of Dr Lim over the evidence of Mr Shehata’s general practitioner, Dr Maccar, as Dr Lim is Mr Shehata’s treating cardiologist with specialist qualifications which Dr Maccar did not possess.
According to the recommendations by Dr Lim in his report referred to in paragraph [‎65], Mr Shehata was provided with reassurance; he was told he could cease taking one of his medications (i.e. Ikorel); and that he would be reviewed again at the clinic in two or three months. Mr Shehata confirmed at the hearing that he recalled Dr Lim not being too concerned regarding his heart condition and confirmed that he did not need to return for a further appointment regarding his heart until February 2020.
Considering this full history, the Tribunal is satisfied that Mr Shehata was fully diagnosed as at the Qualification Period, with two heart conditions being “ischemic heart disease” and “multivessel coronary vasospasm”. Mr Shehata’s heart problems are long-standing and first emerged in 2010. His heart conditions have been described by his treating cardiologist as stable.
The Tribunal is also satisfied that Mr Shehata’s heart conditions were fully treated and fully stabilised as at the Qualification Period and were likely to persist for more than two years. Accordingly, they were “permanent conditions” and should be assigned an impairment rating under Table 1 of the Impairment Tables for the impact of those two conditions on Mr Shehata’s functions requiring physical exertion and stamina.
For Mr Shehata to be assigned at least 20 points under Table 1, the Tribunal would need to be satisfied that he has met the following descriptors:
There is a severe functional impact on activities requiring physical exertion or stamina.
(1) The person:
a. Usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:
i.walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
ii.walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
iii.use public transport without assistance; or
iv.perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and
b. Has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
The first descriptor (contained the preface to subparagraph (1)(a)) which must be met is that the person usually experiences symptoms when performing light physical activities.
In Dr Maccar’s report dated 28 March 2017 he stated that Mr Shehata had reported the following functional impact of his heart condition on his activities:[50]
…He states that he is unable to walk for any period. He also states that he is unable to go shopping or take public transport as this triggers off the pain. He states also that he feels unsafe wth(sic) the recurrent chest pains which makes him ensure some companion at times of exertion. As a result(sic) of his statement I dont(sic) belive(sic) that he is able to engage in any gainful employment.
[50] Refer T-Documents T40/121.
However, this account seemed to be significantly at odds with the reported symptoms referred to in Dr Lim’s letter to Dr Maccar dated 9 March 2017. Dr Lim recorded that Mr Shehata had continued to remain “quite well” and that that “his chest discomfort symptoms are not too bad. He finds that if he gets stressed for example when arguing with the kids he may get some chest discomfort”. The Tribunal considers the account of Mr Shehata’s symptoms by Dr Lim to be more accurate than the account provided by Dr Maccar because Dr Lim’s examination of Mr Shehata was likely to be focussed on his cardiovascular conditions, given Dr Lim’s area of speciality.
The Tribunal also notes that in the clinical notes taken down by the Pain Clinic, that on 31 January 2019 (noting this is well after the end of the Qualification Period), Mr Shehata had reported “no chest pain since finishing cardiac rehab” and that the pain recurred when he exerted himself or he was very tired, however, that had not occurred since finishing the cardiac rehabilitation and he had used “GTN spray” on those occasions. This report also indicated that Mr Shehata had reported that he was not undertaking any current regular exercise; that sometimes he went walking up and down the shopping centre; and that he tried to “keep moving” but spent most of his time lying in bed.[51]
[51] Refer Supplementary T-Documents T2/221.
While the Tribunal considers there to be evidence that Mr Shehata experienced cardiac symptoms intermittently, as evident from his recurring visits to the Emergency Department over the years, the Tribunal is not satisfied that it could be said that he “usually” experienced such symptoms after doing light physical activities. The Tribunal notes the absence of reporting by Mr Shehata to Ms Ho during the frequent consultations that he was suffering from cardiac-related symptoms such as shortness of breath or tightness in the chest. Most of Mr Shehata’s complaints, if he had overdone things, were related to musculoskeletal issues.
Further, the evidence suggests that Mr Shehata still endeavoured to undertake several light (and also some moderate) physical activities in his day-to-day life such as walking, using an exercise bike, travelling interstate and to regional Victoria (Phillip Island and Bendigo), recreational fishing occasionally and the other physical daily tasks referred to in the paragraphs below. Based on the clinical notes of Ms Ho, as outlined in detail above, the Tribunal is not satisfied that Mr Shehata spent “most of time lying in bed” as he reported to Pain Clinic on 31 January 2019. Rather, it seems that there have been periods where he was “busy” or “very busy” and so much so that it was a reason provided by him to Ms Ho as to why he had not completed certain therapeutic exercises she had set for him.
For those reasons, the Tribunal finds that as at the Qualification Period, Mr Shehata did not usually experience symptoms (e.g. shortness of breath, fatigue or cardiac pain) when performing light physical activities and the first mandatory descriptor in the preface of paragraph (1)(a) did not apply to him.
In case the Tribunal is wrong about this, the Tribunal proceeded to consider whether the other two mandatory requirements for a 20-point rating applied to Mr Shehata under Table 1.
Firstly, the Tribunal has considered whether Mr Shehata’s cardiac symptoms had rendered Mr Shehata unable to do one of the four activities listed in subparagraphs (1)(a)(i) to (iv) for the 20-point rating under Table 1.
The Tribunal is satisfied that Mr Shehata was able to do the first and second activity listed in subparagraph (1)(a)(i) and (ii) because the Tribunal notes that he told the Pain Clinic on 31 January 2019 that he “walked up and down the shopping centre sometimes”. Mr Shehata also gave evidence that he was able to walk for up to about ten minutes before experiencing pain and he gave evidence about being able to go on several walks with his son while he was undertaking the training course in Queensland. The Tribunal infers from this that Mr Shehata was able to walk to and from a carpark into a shopping centre and able to walk around the shopping centre without assistance by another person.
In relation to the activity described in subparagraph (1)(a)(iii), the Tribunal is also satisfied that Mr Shehata was able to catch public transport without assistance by another person, based on the evidence that his level of cardiovascular fitness enabled him to ride an exercise bike for up to ten minutes at a time, to undertake interstate travel and occasionally, to go fishing on Port Phillip Bay. The Tribunal infers from this that Mr Shehata would have been able to catch public transport, even if he did have some difficulty climbing stairs as part of doing so.
In relation to the activity described in subparagraph (1)(a)(iv), the Tribunal is satisfied that Mr Shehata was able to perform light day to day activities such as folding and putting away laundry or light gardening. By his own admission, Mr Shehata said the tried to perform some duties around the house and in the garden. The Tribunal has taken into account that there were times when Mr Shehata engaged in volunteer activities with the Church, assisted others with work at their house and he had also undertaken work in his own garden (such as constructing raised garden beds and weeding), which would have required a certain degree of physical endurance and stamina even if it did reportedly cause him to experience physical pain as a consequence. As referred to above, on 6 June 2017 Mr Shehata reported to Ms Ho that he was making some raised garden beds at his home which he was working on about 30 to 60 minutes per day. He reported that his forearms had ached from doing so but otherwise, he had “just usual aches”.[52] Notably, there was no reference to Mr Shehata experiencing cardiac symptoms while undertaking those activities or after completing those activities. Considering this evidence, the Tribunal finds that the descriptor in subparagraph (1)(a)(iv) does not apply to him.
[52] Ibid.
For these reasons, the Tribunal finds that Mr Shehata was able to do each of the activities listed in subparagraphs (1)(a)(i) to (iv). Accordingly, the Tribunal finds that Mr Shehata did not meet the second mandatory requirement for a 20-point rating under Table 1.
Next, the Tribunal considered whether Mr Shehata met the third mandatory requirement for a 20-point rating under Table 1 as described in subparagraph (1)(b).
By Mr Shehata’s own admission at the hearing, in recent years he had assisted his son in his newly acquired Coffee Club franchising business. As mentioned above, Mr Shehata gave evidence that he undertook administrative duties which involved bookkeeping, payroll and inputting data from invoices into an online accounting software application. It was also evident from Ms Ho’s notes that Mr Shehata had demonstrated, including recently, that he has been ”very busy” attending appointments and other activities relating to the establishment and financial backing of his son’s new franchising business. One such activity was Mr Shehata’s attendance at a six-week training course in Queensland (which included a barista course) and reference was also made to Mr Shehata attending a convention at Philip Island which is a two-hour drive from Melbourne.
The Tribunal accepts that Mr Shehata did not undertake those activities with ease as evident from the reports in Ms Ho’s clinical notes that there were instances where he had experienced soreness and pain afterwards. The Tribunal notes, however, that it was not recorded in those clinical notes that by engaging in those activities Mr Shehata had experienced consequential cardiac-related symptoms. Whatever difficulties were experienced by Mr Shehata, the Tribunal notes that he was still able to undertake those activities.
The Tribunal considers that provided Mr Shehata was permitted to sit and stand at will, which is achievable through the use of a sit/stand desk, the evidence supports a conclusion that he would be able to a fulfil non-stressful (or low skilled) administrative tasks for a period of at least three hours. Accordingly, the Tribunal is satisfied that as at the Qualification Period Mr Shehata did not have, nor was he likely to have, difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a period of at least three hours per day. For this reason, the Tribunal concludes that the third mandatory descriptor referred to in subparagraph (1)(b) for a 20-point rating, did not apply to Mr Shehata as at the Qualification Period.
Based on the above findings, the Tribunal is not satisfied that any of the three descriptors for a 20-point rating under Table 1 applied to Mr Shehata as at the Qualification Period. The Tribunal is not satisfied that the impairment arising from Mr Shehata’s heart conditions had a severe impact on activities requiring physical exertion or stamina and that on the evidence, he could not be assigned 20 points or more under Table 1.
Spinal conditions
A CT scan was performed on Mr Shehata’s cervical spine on 9 December 2016. The radiologist concluded that at C5/6 there was mild disc space narrowing, uncovertebral joint degeneration with small osteophytic lipping and possible impingement of the existing C6 nerve roots bilaterally. At C6/7 it was concluded there was moderate disc space narrowing, osteophytic lipping and uncovertebral joint degeneration but no obvious foraminal stenosis to suggest impingement of exiting nerve roots.[53]
[53] Refer Supplementary T-Documents T1/60.
A CT scan was performed on Mr Shehata’s lumbar spine on 6 September 2016 following reported discogenic lower back pain. The radiologist concluded that there were degenerative change in the facet joints at multiple levels (L1/2, L2/3, L3/4, L4/5 and L5/S1), disc bulges at multiple levels (i.e. L3/4, L4/5 and L5/S1) and moderate scoliosis (curvature of the spine).[54]
[54] Ibid at ST1/59.
A whole-body bone scan was performed on Mr Shehata’s cervical spine on 7 February 2017. The nuclear medicine physician concluded that the findings in relation to his cervical spine likely represented end place degenerative remodelling and active facet joint arthropathy was seen at sites in the lumbar spine.[55]
[55] Ibid at ST2/481 & 482.
Prior to the Qualification Period, Mr Shehata had consulted three orthopaedic surgeons about his spinal conditions, Mr Hayes, Mr King and Mr Khan. No recommendations were made by them that Mr Shehata undergo surgery on his spine. Instead, Mr Shehata received conservative treatment in the form of physiotherapy, pain-alleviating medication and before the Qualification Period, he had attended one pain management program in 1999. Of note, the Tribunal notes the opinion of Dr Thomas in his report dated 14 July 2016 that Mr Shehata had presented as being “markedly disabled with no prospect of significant improvement”.[56]
[56] Refer T-Documents T31/97.

However, the Secretary contended that despite this evidence Mr Shehata’s spinal conditions were not fully treated and stabilised as at the Qualification Period because the evidence revealed that:[57]
(a)Mr Shehata was fearful that exercise would aggravate his condition; he lacked confidence to perform certain activities and work; and that he had not adopted a “paced-approach”, which he could have done, to increase his activity levels;
(b)he had an elevated BMI (body mass index) and had been counselled several times by Ms Ho, as revealed by her clinical notes, to exercise and lose weight;
(c)there was a general reduction in Mr Shehata’s general pain levels after he ceased taking Lipitor at the recommendation of Dr Lim in March 2017; and
(d)he attended a further pain management clinic in February and March 2019.
[57] Refer pages 6 and 7 of the Secretary’s Submissions.
The Secretary contended that the medical evidence did not support a finding that the further pain management program in March 2019 was unlikely to result in significant improvement to a level enabling them to work within two years. However, Mr Shehata was experiencing pain arising not only from his back and neck, but also from other parts of his body including in his knees, hips, hands and elbows. The Tribunal considers that the program was not intended to improve his spinal conditions specifically, but to assist Mr Shehata to manage his general pain symptoms from several parts of his body that he has suffered from over the years. Some of those ailments are new, such as the more recent knee injuries, and some of them are long-standing like his back and neck conditions.
The Tribunal considers that it is unrealistic to expect that the pain management clinic was likely to significantly reduce the impairment to Mr Shehata’s spinal function and instead, could only be hoped to assist him to manage the pain as best as he could to maximise what he could still do, despite that pain. Mr Shehata had attended a pain management clinic previously. The Tribunal does not draw any inferences about whether Mr Shehata’s spinal conditions had improved from the fact that Mr Shehata subsequently attended the training program (including the barista course) in Queensland and had been actively assisting his son with the newly acquired Coffee Club franchise. The clinical notes of Ms Ho revealed that he did undertake those activities, but he did so at a cost which was that he suffered from significant musculoskeletal pain as a result of doing so.
The Tribunal is satisfied on the evidence that Mr Shehata’s spinal conditions were fully treated and stabilised as at the Qualification Period and those conditions were likely to persist for more than two years. Accordingly, the Tribunal finds that Mr Shehata’s spinal conditions were “permanent conditions” as defined under the Act and could be assigned an impairment rating under Table 4 for functional impairment to his spinal function.
In the clinical notes of Ms Ho, the Tribunal notes the following entries in the period leading up to and during the Qualification Period relevant to the impact of Mr Shehata’s back and neck conditions on his spinal function:
(a)on 29 November 2016, Ms Ho recorded that Mr Shehata’s neck had been sore and locking up lately and that he was “unable to turn head without difficulty”;[58]
(b)on 16 February 2017, Ms Ho recorded that Mr Shehata’s back was better but “still limited with about 5-10mins standing at a time before pain starts. Has started walking a little more in past week”;[59]
(c)on 27 April 2017, Ms Ho recorded that Mr Shehata had ongoing neck aches and that he had attended a pain clinic at St Vincent’s Hospital and was keen to try the program but found travelling there too hard on his back with public transport and driving and parking too difficult, and would wait for referral to Bundoora clinic instead;[60]
(d)on 22 June 2017, as mentioned above, Ms Ho recorded a significant aggravation to Mr Shehata’s back symptoms arising from having sat on a milkcrate and weeding in his garden. In Ms Ho’s notes on 6 July 2017, she stated that Mr Shehata’s back was slowly improving but he was still getting referred pain down his right hip. Ms Ho recorded that Mr Shehata was using a walking stick mainly for balance as sometimes he felt like his legs were going to give way;[61]
(e)on 27 August 2017, Ms Ho recorded that Mr Shehata had experienced his usual aches but “nothing too uncomfortable” and that he was doing a little bit of walking but “not much” exercises because he feared “flaring body up”. Ms Ho noted that Mr Shehata’s back had been better and that he was not using his walking stick and only had it in his car in case of wet weather;[62] and
(f)on 13 November 2018, Ms Ho recorded that Mr Shehata had experienced “left low back aching” with referred pain into the side. She noted that Mr Shehata felt he was leaning to the right to compensate and that he felt swollen. It was further noted that Mr Shehata had ongoing general aches, but he had admitted that the lack of exercise and diet had not been good.[63] Two weeks’ later on 22 November 2018, Ms Ho recorded that Mr Shehata was better but he still had an ache in the left low back and was only doing exercises intermittently.[64]
[58] Ibid at ST1/29.
[59] Ibid at ST1/26.
[60] Ibid at ST1/22.
[61] Ibid at ST1/20.
[62] Ibid.
[63] Ibid at ST1/9.
[64] Ibid at ST1/8.
On 10 February 2017, Mr Khan sent a letter to Dr Maccar stating that Mr Shehata had a considerably elevated BMI of 36. Mr Khan recorded that Mr Shehata had pain in the back of his neck. He observed that Mr Shehata moved his neck “reasonably well” from side to side and up and down. Mr Khan noted there was generalised global stiffness in Mr Shehata’s lumbar spine. He noted that Mr Shehata had pain down his left buttock, postero-lateral aspect of the left thigh and leg to the ankle. On examination, Mr Khan could not elicit an ankle jerk but found that Mr Shehata had “good power” in both of his lower limbs. Mr Khan noted that he seemed to be moving his shoulders satisfactorily. Mr Khan noted from a comparison of the CT scans on Mr Shehata’s spine that the condition had been present in the back for a long period, “with some degenerative change which may have progressed to some extent”. Mr Khan opined that Mr Shehata was not fit to do any physically demanding work and that he could not sit or stand for prolonged periods.[65]
[65] Refer T-Documents T37.
In order for 20 points to be assigned to Mr Shehata under Table 4, the Tribunal would need to be satisfied that there was a severe functional impact on activities involving spinal function arising from his neck and back conditions. As prescribed by Table 4, to reach this conclusion, the Tribunal would need to be satisfied that Mr Shehata was unable to do any one of the following things:
(a)perform any overhead activities;
(b)turn his head, or bend his neck, without moving his trunk;
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
As mentioned above, in a report dated 16 November 2017, Ms Ho stated that Mr Shehata was unable to lift a weight of more than two kilograms overhead. Elsewhere in this letter, Ms Ho stated that he was only able to do one-kilogram shoulder exercises above shoulder height. Whether it was one or two kilograms is not important because the Tribunal infers from this report that Mr Shehata was able to perform an overhead activity, given he had the ability to perform weight bearing exercises overhead and above shoulder height. The Tribunal concludes from this evidence that Mr Shehata did not meet the descriptor in subparagraph (1)(a) of Table 4 for a 20-point rating.
The Tribunal notes that Mr Khan who examined Mr Shehata in February 2017 had observed that he could move his neck “reasonably well” from side to side and up and down. In Ms Ho’s letter dated 16 November 2017, she described Mr Shehata’s symptoms and functional impact referring to several issues including his neck, but she does not mention that Mr Shehata had any significant restriction in the range of motion in his neck. The Tribunal did not observe this to be the case at the hearing. The Tribunal is not satisfied that Mr Shehata was unable to turn his head, or bend his neck, without moving his trunk and that the descriptor in subparagraph (1)(b) of Table 4 for a 20-point rating did not apply to him as at the Qualification Period.
Mr Shehata completed a six-week training program (including a barista course) in Queensland. He was also able to reach out and pull out weeds while sitting on a milkcrate and use hand-held tools to perform volunteer work at his Church. The Tribunal infers from Mr Shehata’s ability to undertake those activities that he could bend forward to pick up a light object from a desk or table. Mr Shehata would have needed to do so to make a cup of coffee at a coffee machine. There are other reports by the health professionals who treated and examined Mr Shehata indicating that he was able to bend, albeit there were limitations with respect to how much he should lift. For instance, in Ms Ho’s letter dated 16 November 2017 she said Mr Shehata should not lift anything more than five to seven kilograms.[66] Mr Khan stated that Mr Shehata should avoid any work requiring excessive bending, but did not say that he was unable to bend.[67] Ms Ho said that Mr Shehata experienced difficulty when bending over to put on his shoes and socks when he went swimming. However, this implies he was still able to do so. Accordingly, the Tribunal is not satisfied that Mr Shehata was unable to bend forward to pick up a light object from a desk or table and as such the descriptor in subparagraph (1)(c) of Table 4 for a 20-point rating did not apply to him as at the Qualification Period.
[66] Refer T-Documents T49/174.
[67] Ibid at T37/115.
In June 2016, the JCA assessors reported that Mr Shehata said he was able to sit for an hour before needing to stand. On 16 November 2017, Ms Ho recorded in a letter to Dr Maccar that Mr Shehata’s “sit and walking capacity is about 15-20mins”. Based on this evidence, the Tribunal is not satisfied that Mr Shehata is unable to remain seated for at least 20 minutes and as such the descriptor in subparagraph (1)(d) of Table 4 for a 20-point rating did not apply to him as at the Qualification Period.
The Tribunal concludes, based on the above findings, that Mr Shehata’s spinal conditions did not have a severe impact on activities involving spinal function as at the Qualification Period. Accordingly, the Tribunal concludes that a 20-point rating could not be assigned to Mr Shehata under Table 4.
Upper limb conditions
The Tribunal notes that the Secretary concedes that Mr Shehata has a bilateral shoulder condition which is fully diagnosed, based on the report of Dr Maccar dated 25 February 2014 who described this condition as “rt shoulder tendinosis/bursitis” and an ultrasound report dated 16 May 2016 of Mr Shehata’s left shoulder revealed that he suffered from “supraspinatus tendinosis and tear”.[68] The Secretary also concedes that Mr Shehata was fully diagnosed with bilateral median neuropathy which was likely to indicative of carpel tunnel syndrome.[69]
[68] Ibid at T27/65 & T29/86.
[69] Refer [4.60] of the Secretary’s Submissions.
On 14 July 2016, Mr Shehata reported to Dr Clayton Thomas, consultant in rehabilitation and pain medicine, that he had left shoulder pain and limited movements and limited functionality of his left upper limb, particularly above shoulder height.[70] Upon clinical examination, Dr Thomas reported positive signs of nerve impingement and that flexion and abduction of the shoulder was limited to 90 degrees with weakness of the rotator cuff.
[70] Refer T-Documents T31/97.
On 10 February 2017, Mr Khan reported in his letter to Dr Maccar that Mr Shehata seemed to be moving his shoulders satisfactorily.[71]
[71] Ibid at T37/114.
In the clinical notes of Ms Ho, the Tribunal notes the following entries in the period leading up to and including the Qualification Period relevant to Mr Shehata’s upper limb conditions:
(a)on 19 January 2017, it was noted that Mr Shehata has “sore shoulders when getting dressed or if sidelie more than 30mins” and that he had the usual aches in his shoulders, but it was more manageable;[72]
[72] Refer Supplementary T-Documents ST1/28.
(b)on 23 February 2017, Ms Ho notes that Mr Shehata had seen the “neuro” in the previous week who had “advised for CTS op for right” and that he was seeing his GP to discuss;[73]
(c)on 2 March 2017, Ms Ho records that Mr Shehata was experiencing numbness in his hands “right but more in 3 fingers not whole hand life before” and that he had an ache in his right elbow and was unable to fully straighten. Ms Ho told Mr Shehata to “do scap retraction, UT stretches and 1 kg sh flex and abd to 90 deg exs”;[74]
(d)on 9 March 2017, Ms Ho records that Mr Shehata has aching hands and ongoing aches in shoulders and numbness in hands. She records that he was doing one-kilogram shoulder exercises but found “clicking” in his left shoulder “a lot”;[75]
(e)on 16 March 2017, Ms Ho records that Mr Shehata had reported that his left shoulder was aching but not any worse than before;[76]
(f)on 23 March 2017, Ms Ho records that Mr Shehata had experienced ongoing aches but the numbness in his hands was not as bad;[77]
(g)on 6 April 2017, Ms Ho records that Mr Shehata continued to have ongoing aches and that he tossed and turned in bed a lot because he had a lot of shoulder aches and his hands got numb;[78]
(h)on 14 September 2017, Ms Ho records that Mr Shehata had experienced one night of “bad nerve numb in hands 2 days ago but ok past night”;[79]
(i)on 23 November 2017, (immediately before the end of the Qualification Period), Ms Ho records that Mr Shehata had reported that his shoulders were aching more than usual in the past week;[80]
(j)on 8 August 2018, Ms Ho records that Mr Shehata had reported aching down right “lat” arm and numbness in his hands. Mr Shehata had reported that his GP had organised a nerve conduction study to be undertaken but Mr Shehata did not “feel” that it was carpel tunnel syndrome;[81] and
(k)on 11 October 2018, Ms Ho records that Mr Shehata had been advised to have carpel tunnel syndrome surgery and that the was on a waiting list and it was most likely to take place in January or February 2019.[82]
[73] Ibid at ST1/26.
[74] Ibid at ST1/25.
[75] Ibid.
[76] Ibid at ST1/24.
[77] Ibid.
[78] Ibid at ST1/23.
[79] Ibid at ST1/19.
[80] Refer ST1/18.
[81] Ibid at ST1/11.
[82] Ibid at ST1/9.
In February 2017, Dr Grant Scott, neurologist and neurophysiologist, examined Mr Shehata and performed nerve conduction studies on him. Dr Scott recorded in his letter to Dr Maccar dated 20 February 2017 that Mr Shehata’s right hand had continued to cause trouble at night or when performing repetitive hand activities. Dr Scott considered that Mr Shehata had moderate hand neuropathy on both sides which had been worsening, and he needed a surgical opinion. Dr Scott also foreshadowed that Mr Shehata would require post-operative hand therapy and possibly wrist splinting.[83]
[83] Refer T-Documents T38.
As mentioned above, in Ms Ho’s clinical notes dated 11 October 2018 she noted that Mr Shehata had seen a surgeon, Mr Gya, the previous week who had suggested that he needed carpel tunnel syndrome operation; he had been placed on the waiting list and the operation would most likely happen in January/February 2019.
Based on the evidence referred to in the last two paragraphs, the Tribunal accepts the Secretary’s contention that Mr Shehata’s bilateral median neuropathy (likely to be indicative of carpel tunnel syndrome) was not fully treated and stabilised as at the Qualification Period and it is not a “permanent condition” as defined by the Act.
The Secretary also contended that Mr Shehata’s bilateral shoulder condition was not fully treated and stabilised because the assessors who undertook a JCA in June 2016 recorded that Mr Shehata had reported that he would be reviewed by a specialist regarding the option of surgery on his shoulders. Mr Shehata was subsequently examined by Mr Khan in February 2017 and as mentioned above, Mr Khan observed his shoulders to be moving satisfactorily. The Secretary contended that Mr Khan did not recommend any surgery to be undertaken on Mr Shehata’s shoulders because this referral was focussed on his spinal and hip conditions. However, this conclusion was not clear to the Tribunal. No such focus had been identified by Mr Khan in the opening paragraph of Mr Khan’s letter. Further, in his letter Mr Khan addressed several areas of musculoskeletal function including the above observation about Mr Shehata’s shoulder movements. After examining Mr Shehata, Mr Khan recommended that he attend a pain management clinic and did not recommend any surgical procedures when he had the opportunity (in this letter) to do so. The Tribunal infers from this that Mr Khan did not consider any surgical intervention was indicated for Mr Shehata’s bilateral shoulder condition which is consistent with his observation that Mr Shehata was moving his shoulders satisfactorily.
The Secretary contended that it was unclear from Ms Ho’s report dated 16 November 2017 whether Mr Shehata had received any physiotherapy treatment for his shoulders. The Tribunal does not accept this contention. At the end of Ms Ho’s report she referred to Mr Shehata having multiple chronic musculoskeletal issues and she specifically mentions “tears” in both of shoulders. Further, in the “Treatment and Care” section of Dr Ho’s letter, she refers to “shoulder exercises” being performed by Mr Shehata. It is also clear from Ms Ho’s clinical notes that she was concerned about and treating Mr Shehata for his multiple musculoskeletal issues including the bilateral condition affecting his shoulders – (see paragraphs [109 ‎(a), (c), (d), (e), (g) and (i)] of these Reasons for Decision).
The Tribunal is satisfied that Mr Shehata’s bilateral shoulder condition was long-standing. Before the end of the Qualification Period, Mr Shehata had been reviewed by orthopaedic specialists who had not recommended any surgical intervention. Mr Shehata also received intensive physiotherapy over many years to treat his shoulder condition, along with other musculoskeletal issues. The Tribunal finds that Mr Shehata’s bilateral shoulder condition was fully treated and stabilised and was likely to persist for more than two years as at the Qualification Period. Accordingly, the Tribunal concludes that this condition is a permanent condition as defined by the Act and could be assigned an impairment rating under Table 2.
For 20 points to be assigned under Table 2, Mr Shehata would need to demonstrate that most (i.e. three or more) of the following descriptors applied to him as at the Qualification Period:
There is a severe functional impact on activities using hands or arms.
(1) Most of the following apply to the person:
(a) the person has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b) the person has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c) the person has difficulty using a computer keyboard despite appropriate adaptions;
(d) the person has severe difficulty using a pen or pencil;
(e) the person has severe difficulty turning the pages of a book without assistance.
As referred to above, Mr Shehata gave evidence at the hearing that to assist his son in the Coffee Club franchise, he had performed bookkeeping, did the payroll and inputted data from invoices in an online accounting software application. Mr Shehata also gave evidence that he still did some housework and light gardening. There was evidence indicating that he constructed some raised garden beds and that he did weeding in the garden while sitting on a milkcrate. Mr Shehata volunteered to do work at a friend’s house and at his Church which involved him using hand-held tools. The Tribunal infers from Mr Shehata ability to perform all of those activities that he is did not have limited movement in his arms and hands and could do all of the things referred to in subparagraphs (1)(b) to (e) for a 20-point rating under Table 2 inclusive, without difficulty in the case of subparagraph (1)(c) or without severe difficulty in the case of subparagraphs (1)(b), (d) and (e).

Accordingly, the Tribunal finds most of the descriptors in subparagraph (1) for a 20-point rating under Table 2 do not apply to Mr Shehata in respect of his upper limb impairment resulting from his bilateral shoulder condition. The Tribunal concludes that Mr Shehata’s bilateral shoulder condition does not have a severe impact on activities involving his upper limb function and he cannot be assigned 20 points under Table 2.
Knee conditions
An MRI was performed on Mr Shehata’s right knee on 8 September 2017. The radiologist concluded that Mr Shehata had a right knee:
(a)complex tear within the medial meniscus and lateral meniscus tear;
(b)a partial thickness disruption through the posterolateral fibres of the anterior cruciate ligament; and
(c)a high-grade sprain/partial disruption of the posterior cruciate ligament.
In the clinical notes of Ms Ho, she recorded on 14 September 2017 that Mr Shehata had twisted his right knee the previous week when catching a door that was closing to let other people into a venue and that he was unable to move the day after. Some anti-inflammatory medication was noted as having provided relief and Mr Shehata had “tried to wean off past few days but knew not quite right yet”.[84] On 5 October 2017, Ms Ho noted that the scan had revealed a tear in his right knee and that he was on the waiting list for an arthroscope. Ms Ho noted that Mr Shehata had reported that he was not walking comfortably, so his back was stiff.[85]
[84] Refer Supplementary T-Documents ST1/19.
[85] Ibid.
In Dr Maccar’s recent report dated 6 March 2019, he states that Mr Shehata has “osteoarthritis in both knees” resulting in “knee pain”.[86] Dr Maccar does not state what limitations have arisen in relation to this knee condition, the time of onset of this condition nor did he provided details of any past, current or planned future treatment for this knee condition.
[86] Refer Exhibit “A1”.
The Tribunal is satisfied that Mr Shehata was fully diagnosed with “medial and lateral meniscus tears” and “anterior and posterior cruciate ligament disruptions” as at the Qualification Period. However, the Tribunal is satisfied from the evidence that the investigation and treatment of these knee conditions had only commenced at the end of and following the Qualification Period, noting that he was still on a wait list for arthroscopy as at 5 October 2017. The Tribunal finds that Mr Shehata’s knee conditions were not fully treated and fully stabilised as at the Qualification Period. Accordingly, any functional impairments raising from those conditions do not attract an impairment rating under the Impairment Tables because they were not permanent conditions at that time.
Mental health conditions
In Dr Maccar’s referral letter to Dr Lim dated 2 September 2014, he provided a medical history for Mr Shehata which included a reference to him having suffered from the condition of “Depression – Endogenous” as at 30 August 2013.[87] In Dr Maccar’s recent report dated 6 March 2019, he states that Mr Shehata suffered from “significant anxiety and depression as a result of being off work for such a long time”; the disability arising from his conditions and due to some family related issues. Dr Maccar stated that Mr Shehata’s mental health conditions, “renders him with recurrent attacks of depression and panic”.[88]
[87] Refer Supplementary T-Documents ST2/492.
[88] Refer Exhibit “A1”.
In the Secretary’s Submissions, it was highlighted that the AAT1 had made a reference in the Reasons for Decision to two medical certificates by Dr Kochar, psychiatrist, issued in 1999 and 2000 which reportedly confirmed a diagnosis of depression and post-traumatic stress disorder. Those documents were not before this Tribunal but the AAT1 decision was. The Tribunal infers from the AAT1 decision that this evidence existed and that a psychiatrist had made such diagnoses of Mr Shehata in the past.
The Tribunal is satisfied that there may well be evidence that Mr Shehata had been fully diagnosed in the past with mental health conditions of “depression”, “anxiety” and “post-traumatic stress disorder (PTSD)”. However, the Tribunal accepts the Secretary’s contention that such conditions were not fully treated or fully stabilised as at the Qualification Period.
There was no evidence before the Tribunal that Mr Shehata was being treated either by a psychologist or psychiatrist for any mental health conditions or that any treatment had been recommended for his mental health conditions.
It was not clear from the evidence whether Mr Shehata had been exhaustively treated with a course of anti-depressant medication or any other psychotropic medication, apart from a reference on the claim form that anti-depressant medication had caused him to be drowsy and disoriented. In Dr Maccar’s report dated 6 March 2019, no reference was made to Mr Shehata having been prescribed with psychotropic medication for his mental health conditions. The Tribunal notes that the clinical summary generated from Dr Maccar’s clinical records as at 12 October 2017 indicated that Mr Shehata was being prescribed with 19 different medications.[89] The only psychotropic medication on that list was Antenex, which is a diazepam medication used to treat anxiety.
[89] Refer T-Documents T48/172 & 173.
Mr Shehata has not at any time undertaken any psychotherapy or cognitive behavioural therapy. He attended a pain management program and received counselling as part of this process, but this was focussed on helping him manage his physical pain rather than to alleviate symptoms of depression, anxiety or PTSD. There was no evidence before the Tribunal that Mr Shehata had been placed on a mental health plan by Dr Maccar before the end of the Qualification Period.
For these reasons, the Tribunal finds that Mr Shehata’s conditions of depression and PTSD were not fully treated and stabilised as at the time of Qualification Period and therefore, were not permanent conditions. Accordingly, any functional impairment arising from these conditions do not attract an impairment rating under Table 5 of the Impairment Tables.
CONCLUSION
The Tribunal acknowledges that Mr Shehata suffers from a significant number of conditions affecting several areas of his body, mental health and general stamina. The Tribunal has found that his heart, spinal and bilateral shoulder conditions were permanent conditions as at the Qualification Period.
The Tribunal has found that Mr Shehata met the eligibility requirement under s 94(1)(a) of the Act as at the Qualification Period.
However, the Tribunal has also found that Mr Shehata did not participate in a program of support at all in the 36-month period preceding the Qualification Period. This meant that for him to meet the mandatory “continuing inability to work” requirement under s 94(1)(c) of the Act, Mr Shehata needed to establish that he had a “severe impairment”. This required Mr Shehata to demonstrate that he had an impairment arising from his permanent conditions that attracted a rating of 20 points or more under a single Impairment Table.
For the reasons set out above, the Tribunal has concluded on the evidence before it that Mr Shehata did not have a “severe impairment” as at the Qualification Period. Accordingly, the Tribunal concludes that Mr Shehata does not meet the mandatory requirement under s 94(1)(c) of the Act and for this reason, he did not qualify for the DSP as at the Qualification Period. Due to this conclusion, it is not necessary for the Tribunal to proceed to determine whether Mr Shehata met the further eligibility requirement under s 94(1)(b) of the Act.
Accordingly, the Tribunal affirms the Decision Under Review.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member K. Parker and Member J. Griffin

......................[sgd].........................................
Associate
Dated: 12 May 2020

Dates of hearing:

5 September 2019 & 4 December 2019

Advocate for the Applicant:

Anthony Shehata

Solicitors for the Respondent: Mr Pietro Nacion
Sparke Helmore Lawyers

[2020] AATA 2454

12 May 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Dates of hearing:	5 September 2019 & 4 December 2019
Advocate for the Applicant:	Anthony Shehata
Solicitors for the Respondent:		Mr Pietro Nacion Sparke Helmore Lawyers