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

Shehata and Secretary, Department of Social Services (Social services second review) [2018] AATA 747 (4 April 2018)
Division:GENERAL DIVISION
File Number(s): 2017/0092
Re:Samy Shehata
APPLICANT

Secretary, Department of Social Services And
RESPONDENT

DECISION
Tribunal:Member K. Parker
Date:4 April 2018
Place:Melbourne

The Tribunal affirms the reviewable decision to reject the Applicant’s claim for disability support pension under the Social Security Act 1991 (Cth).
[sgd]........................................................................
Member K. Parker
SOCIAL SECURITY – disability support pension – whether the applicant has physical, intellectual or psychiatric impairments – ischaemic heart disease – hypothyroidism – back, neck, shoulder and knee conditions – whether conditions were permanent – whether conditions were fully diagnosed, treated and stabilised – whether the impairments attracted 20 points or more – decision affirmed
Legislation
Administrative Appeals Act 1975 (Cth) – s 37
Social Security Act 1991 (Cth) – s 23, 26, 27, 94
Social Security (Administration) Act 1999 (Cth) ss 13, 42 and Sch 2 – clause 4
Social Security (Tables for the Assessment of work-related Impairment and Disability Support Pension) Determination 2011 – s 5, 6, 8 and 11
Cases
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Negri v Secretary, Department of Social Services [2016] FCA 879
Secretary, Department of Employment & Workplace Relations v Harris [2007] FCAFC 130
Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 235 CLR 286
REASONS FOR DECISION
Member K. Parker
4 April 2018
INTRODUCTION

On 4 September 2015, Mr Samy Shehata contacted Centrelink, the agency of the Department of Social Services responsible for administering the disability support pension (DSP), by telephone to make a DSP claim under the Social Security Act 1991 (Cth) (Act).[1]
[1] Refer T-Documents T14/101. The T-Documents are the set of documents produced to the Tribunal under s 37 of the Administrative Appeals Act 1975 (Cth).
On 11 September 2015, Mr Shehata lodged a DSP claim form with Centrelink.[2] Mr Shehata has been resident in Australia for ten years or more and satisfied the residence requirement. The information on this form confirmed that Mr Shehata:
[2] Refer T3/26-29.
(a)is a 61 year old man;[3]
[3] His date of birth is 5 October 1956.
(b)his preferred spoken and written language is Arabic;
(c)his disabilities, illnesses or injuries included:
Disc bulge (back problem)
Chronic heart disease,
(Prinzmetal Angina),[4]
Chronic Shoulder Pain
(d)he was receiving medication and physical therapy and that the heart disease medication “affected my ability to work and causes laziness”;
(e)he was not expecting to have an operation in the future;
(f)he had obtained a Bachelor of Mechanical Engineering degree and gained a qualification in a “basic office skills course”;
(g)he had been employed as a “7eleven manager” in a 7eleven store from 2001 to 2013;
(h)in the previous three years, he had not 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, gaining new skills, work experience or training; and
(i)he thought he could do activities that would help prepare him for work.
[4] The Heart Foundation describes Prinzmetal angina as follows:
Coronary artery spasm (CAS) is a temporary discomfort or pain that is caused by a temporary spasm (constriction) in one or more of your coronary arteries (the arteries that supply oxygen and nutrients to your heart). It is sometimes called ‘Prinzmetal angina’ and usually happens in people aged 50 years or younger. Spasms can range from very minor to severe, and sometimes may completely blockyour coronary artery. CAS that is severe and lasts for more than 15 minutes can permanently damage your heart muscle and can lead to a heart attack. Your heart’s electrical system could also be affected during such an episode, causing an arrhythmia (an abnormal heart rhythm). In some cases, an arrhythmia caused by CAS can stop the heart beating, causing sudden death.
On 8 June 2016, Centrelink rejected Mr Shehata’s DSP claim.[5] Mr Shehata sought reconsideration of this decision.
[5] Refer T-Documents T9.
On 2 September 2016, a Centrelink authorised review officer (ARO) affirmed the decision to reject Mr Shehata’s claim.[6]
[6] Refer T-Documents T12.
Mr Shehata sought review of Centrelink’s decision by the Social Services and Child Support Division of the Administrative Appeals Tribunal (AAT1).
On 5 December 2016, the AAT1 affirmed the ARO’s decision to reject Mr Shehata’s DSP claim. The AAT1 found that Mr Shehata had two conditions described as “chest pain” and “spinal disturbance”. The AAT1 found that both of those conditions were not permanent as they were not fully diagnosed, treated and stabilised at the time Mr Shehata made his DSP claim or in the 13 weeks that followed.
On 6 January 2017, Mr Shehata sought review of the AAT1’s decision by the General Division of the Administrative Appeals Tribunal (this Tribunal).
This Tribunal affirms the decision under review for the reasons to follow.
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)…
(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.
(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).
(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.
(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;
(j)       education;
(k)      pre-vocational training;
(l)       vocational training;
(m)     vocational rehabilitation;
(n)      work-related training (including on-the-job training).
‘Impairment Tables’ is 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 (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 functional impact of each impairment.
The following subsections of s 6 of the 2011 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 2011 Determination provides: the impairment of a person must be assessed on the basis of what they can, or could do, not on the basis of what the person chooses to do or what others do for the person. Subsection 6(2) also provides that the person’s medical history must be considered before applying the tables to a person’s impairment.
Further, subsection 11(3) of Part 2 of the 2011 Determination provides that a descriptor applies when the person can do the activity normally and on a repetitive or habitual basis (i.e. they are generally able to do that activity whenever they attempt it) and not only once or rarely. Subsection 11(4) provides that when assessing impairments caused by conditions that have stabilised as episodic or fluctuating, a rating must be assigned which reflects the overall functional impact of those impairments, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.
ISSUES
The issues to be determined in this application, as at the time of the Qualification Period, are:
(a)whether Mr Shehata had any physical, intellectual, or psychiatric impairments;
(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)if so, whether those impairments, together or separately, attracted a rating of 20 points or more under the Impairment Tables; and
(d)if so, whether Mr Shehata had a continuing inability to work. Unless the Tribunal finds that Mr Shehata had a severe impairment (i.e. an impairment which attracted a rating of 20 or more points under any one table), it will also be necessary for the Tribunal to assess whether he had satisfied the program of support requirements as referred to in more detail below.
CONSIDERATION
Date of claim and the Qualification Period
Section 13(1) of the Social Security (Administration) Act 1999 (Administration Act) provides that a claim is taken to have been made on the date the person first contacted Centrelink about making a claim, provided the claim form was lodged within 14 days of that contact. In Mr Shehata’s case, he first contacted Centrelink by telephone on 4 September 2015 and subsequently lodged his written claim form seven days later. Accordingly, the date of Mr Shehata’s DSP claim was 4 September 2015.
In accordance with s 42 and cl 4 of Schedule 2 of the Administration Act, a person must qualify for the DSP on the date of their claim or within the following 13 weeks. The relevant qualification period in this case is 4 September 2015 to 4 December 2015 (Qualification Period).
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 at paragraph [1]:[7]
…the applicant’s entitlement to the pension must be considered as at the date of his claim, namely, 3 May 2004 and a period of 13 weeks thereafter. Any subsequent changes in his 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.
[7] 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.
General approach to assigning ratings under the Impairment Tables
The Tribunal notes the recent observations of Bromberg J of the Federal Court of Australia in the decision of Negri v Secretary, Department of Social Services [2016] FCA 879. Bromberg J stated the following in relation to the approach that should be taken when making such assessments:
[41] I reject the submission that the Tribunal is only “entitled” and not “obliged” to look at individual descriptors. The purpose of application of the Tables is to assess the functional impact of an impairment. Functional impact is assessed “by reference to the particular examples” appearing under the first line of a descriptor. Further, comparison between Table levels and descriptors is required and application of a particular level where two are arguably applicable requires that “all … descriptors for that level … [be] satisfied.” The Determination clearly contemplates that the assessor must look to the descriptors in assessing which level of functional impact results from an impairment.
[42] However, Ms Negri’s submission, that the Tribunal is required to make a finding in relation to each of the descriptors listed in relation to a particular level, also misunderstands the nature of the assessment required.
[43] It is necessary here to reiterate the terms of item 5(3)(b). What that paragraph makes clear is that the impairment level is to be “identified by reference to the particular examples of functional activities, abilities, symptoms and limitations…”. Ms Negri’s submission treats each of the functional activities, abilities, symptoms and limitations as though they were conditions of eligibility for the particular impairment level. They are not that. The examples are there to give content to each level. The examples provided are not definitional, but rather illustrative. Consideration must be given to each of the relevant examples specified, but only to give content to the criteria applicable to the impairment level being considered.
[44] The proper course is to consider the “particular examples” (item 5(3)(b), emphasis added) in the descriptors with a view to determining which level of functional impact – no, mild, moderate, severe, or extreme – applies in relation to an impairment. It may be that, by reference to the examples, one impairment rating is clearly the best description of the functional impact experienced by a person, even if not all the descriptors are applicable. In such a case, that impairment rating applies.
[45] I note, however, that where the impairment falls between two ratings it may be necessary to make express findings in relation to particular descriptors. That is because the tie-breaking mechanism in item 11(1)(c) precludes application of a higher rating unless all of the descriptors are satisfied. If, on consideration of the examples, it were clear that a claimant experienced something between moderate and severe functional impact, but that person did not have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of three hours, the 20-point level could not apply and the 10-point level would necessarily apply. In practical terms, a finding that the person did not meet one or more of the descriptors in the 20-point level may be necessary in order for a court to be satisfied that the correct procedure had been followed.

The Tribunal considers that Bromberg J was referring to the specific examples in the tables which sit under some of the individual criteria or descriptors and not the criteria or descriptors themselves.
This Tribunal considers that it must make its assessment of the level of impact based on a consideration of those criteria or descriptors as required by s 5(3) of the 2011 Determination. It would seem that the words of s 5(3)(a) specifically indicate that “a rating can be assigned” “where a descriptor applies” (emphasis added). The exception under s 11(1)(c) of the 2011 Determination is that where the impairment falls between two ratings the lower rating must apply unless it can be shown that all of the descriptors of the higher rating apply.
Hypothyroidism
Dr Raouf Maccar, who has been Mr Shehata’s treating general practitioner since 2008, completed a Centrelink Program of Support and Medical Review Disability Support Pension form (Centrelink Medical Form) on 10 September 2015.[8] On this form, Dr Maccar listed “hypothyroidism” as a condition that Mr Shehata had which was “generally well managed and that had caused minimal or limited contact”.
[8] Refer T-documents T5/38.
On 2 June 2016, a job capacity assessment was conducted by a registered psychologist and registered occupational therapist, with the assistance of an Arabic interpreter (First JCA). In the report arising from this assessment dated 7 June 2016 (First JCA Report), the assessors reported that Mr Shehata confirmed that his condition of hypothyroidism was “chronic, well managed and had no/minimal impact on function”. They assessed this condition as fully diagnosed, treated and stabilised and therefore, permanent. The assessors recommended a rating of zero points under Table 1 as they assessed the functional impact of this condition as nil.
A further job capacity assessment was undertaken by an accredited exercise physiologist on 19 April 2017, with the assistance of an interpreter (Second JCA). In the report arising from this assessment dated 7 June 2016 (Second JCA Report), the assessors stated as follows:
Medical report from Dr Maccar dated 10/09/15.
This condition is noted in question 6 on the medical report as a condition that is generally well managed and that causes minimal impact. The previous JCA report indicates that the client confirmed that this condition is well managed with no or minimal impact. The condition has been assessed as permanent but with no other information available is unable to be assessed as fully diagnosed treated or stabilised – further information was not sought given the limited functional impact.
Based on the evidence above, the Tribunal is satisfied that the condition of hypothyroidism was fully diagnosed at the time of the Qualification Period on account of the diagnosis of Dr Maccar on the Centrelink Medical Form. However, there was insufficient evidence before the Tribunal in relation to this condition to make a finding that this condition was fully treated and stabilised. The Tribunal concludes that this condition was not permanent.
The Tribunal also notes and accepts the evidence of Dr Maccar, as set out on the Centrelink Medical Form, as confirmed by Mr Shehata at the First JCA and by his representative at the hearing before this Tribunal, that the impairment to Mr Shehata arising from this condition was minimal or limited.
As this condition was not permanent as at the time of the Qualification Period, it could not be assigned an impairment rating under the Impairment Tables.
Ischemic heart disease with angina
Mr Shehata had a procedure to place a stent in his heart in 2012 as indicated in the letter from St Vincent’s Hospital referred to in paragraph [29].[9]
[9] At the hearing, Mr Shehata gave evidence that this procedure took place in 2010, although nothing turns on this discrepancy as to the timing of this procedure.
Mr Shehata was examined by a consultant cardiologist, Dr Yew Mun Cheong, on 6 December 2013.[10] At the hearing, Mr Shehata said that Dr Cheong was “not his doctor”, and that his general practitioner had sent him to see Dr Cheong. Dr Cheong, in his report of the same date, stated:
Samy saw me today and cardiac wise was stable. However, recently he was in ED again with some chest symptoms and according to him some changes to medications since then.
He could not remember details.
On examination today he was in no distress, no evidence of CCF, blood pressure was 125-130/70.
While he is settled and remaining stable and previously had gone through the results of his investigations, I am happy to press on at this stage.
I encourage him to keep as active as possible, but if there are any ongoing concerns, I would be more than happy to catch up with him earlier.
[10] Refer T-Documents T6.
Dr Heath Adams, Cardiology Registrar, at St Vincent’s Hospital in a letter to Dr Maccar dated 20 February 2014, stated:
I had the pleasure of catching up with Samy in the Cardiology Outpatients Clinic today.
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.
On the Centrelink Medical Form, Dr Maccar confirmed a diagnosis of “IHD unstable angina”. No date of diagnosis was provided.[11] It was stated that Mr Shehata had seen a cardiologist at St Vincent’s Hospital. Dr Maccar listed current treatment as: “- Medical - Cardiac rehab(?)”; past treatment as “Angioplasty(?)” and planned/future treatment as: “As before”.[12]
[11] Refer T-Documents T5/35.
[12] The writing on the form was difficult to read, so I have indicated with a question mark in brackets, where I am unsure about the whether I have interpreted the written references correctly.
Dr Maccar described the current symptoms (as at 10 September 2015), as “recent chest pain on exertion (?)”. He described the impact of this condition on Mr Shehata to function as “chest pain on exertion”. Dr Maccar did not indicate for how long this impact was expected to persist, although, he did state that it was expected to “remain unchanged” within the next two years. Dr Maccar certified Mr Shehata as unfit for work or study between 2 September 2015 to 2 December 2015.
32.Dr Maccar also issued a medical report dated 29 March 2017. This report was issued more than one year after the end of the Qualification Period. In this report, Dr Maccar stated:
This is to certify that Mr Samy Shehata has been diagnosed with unstable Angina. 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 with the recurrent chest pain which makes him ensure some companion at times of exertion. As a result of his statement I don’t belive(sic) that he is able to engage in any gainful employment.
In the First JCA Report dated 7 June 2016, Mr Shehata was reported as stating that he “experiences sporadic chest pain. This is usually associated with stress such as when he used to work in his business”. The assessors considered Mr Shehata’s heart condition to be fully diagnosed, treated and stabilised and recommended that a rating of 5 points be assigned under Table 1 for “mild functional impact on activities requiring physical exertion and stamina”. It was noted by the assessors that Mr Shehata reported experiencing chest pain sporadically when he was placed under significant stress and when he engaged in physically demanding activities (e.g. climbing stairs).
When the ARO affirmed Centrelink’s decision to reject Mr Shehata’s DSP claim, she contacted Mr Shehata on 31 August 2016 by telephone, with the assistance of an interpreter, to discuss her decision with him.[13] In the ARO’s note of this conversation, she stated as follows:
…
When questioned about his heart problems, Samy told me that he(sic) his stress levels affects his chest pain. He hasn’t been socializing or interacting with people for about 12 months now and this had reduced his stress levels. He stated that he suffers chest pain if he is irritated or furious when working on an activity at home.
When questioned, Samy told me that he does very little around the home – he might go out into the garden and do a small amount of weeding here and there. He has someone mow and tend to the yard.
[13] Refer T-Documents T11.
In the Second JCA Report, the assessor stated as follows:
…
Phone contact was made with Dr Maccar on 26/04/17 – during the discussion Dr Maccar noted at that at the time under consideration for this appeal (4 September – 4 November 2015) the client’s heart condition was under review by the Cardiologist (Dr Heath Adams), in referring to the letter from Dr Adams dated Feb 2014 which indicated ongoing improvement, the need to manage diet and participate in regular exercise to manage his condition and the fact that symptoms were occasional at that stage, Dr Maccar was unable to comment further.
Fully diagnosed?
The Tribunal is satisfied that as at the time of the Qualification Period, Mr Shehata was fully diagnosed with a heart condition of “ischemic heart disease with angina”. As set out in paragraph [30], Dr Maccar confirmed a diagnosis on the Centrelink Medical Form of the condition “IHD unstable angina”. Further, as set out in paragraph [29], Dr Adams referred to Mr Shehata as having the condition of “ischemic heart disease” in his medical report.
Fully treated?
It was contended by the Secretary that at the time of the Qualification Period, that Mr Shehata’s condition, ischemic heart disease with angina, was not fully treated for the reasons set out in paragraph [35] of the Secretary’s Statement of Fact & Contentions dated 19 June 2017 (Secretary’s SFIC). Those reasons were:
(a)the outcome of the Second JCA assessing Mr Shehata’s condition as not fully treated at the time of the Qualification Period;
(b)the Second JCA assessor’s conversation with Dr Maccar that Mr Shehata’s condition was “still under investigation”;
(c)the Second JCA assessor’s finding that there was no evidence to indicate whether Mr Shehata undertook the recommendations of Dr Adams or if he continued to have ongoing testing. Further, there was no mention in the medical information of any attempts by Mr Shehata to investigate or address his stress, given that his symptoms were described as being triggered by stress; and
(d)Dr Adams had recommended that Mr Shehata undertake preventative measures including exercise, diet and regular reviews, however, there was no evidence of Mr Shehata having done so. During the AAT1 hearing, Mr Shehata gave evidence that he had not been to see a cardiologist in the previous 18 months.
At the hearing before this Tribunal, Mr Shehata gave the following evidence about the previous treatment of his heart condition as follows:
(a)he had a stent put in his heart;
(b)he had seen two cardiologists, Dr Adams and Dr Cheong;
(c)after the stent was inserted in Mr Shehata’s heart, he said he was prescribed with different types of medication for his heart. He said that he took the medication that was initially presented to him for about two or three years. He said he changed that medication to aspirin. He said that he had to change the medication because it caused Prinzmetal (or unstable) angina. Subsequently, he said he took a combination of four medicines, including aspirin, Cardizem, Imdur and Lipitor. He said he has continued to take those medications;
(d)in relation to exercise, Mr Shehata said that about five or six years ago he bought an exercise bike for him to use at home. He said that he did not use the exercise bike regularly because he was in a lot of pain. He said that sometimes he would use it about once a week;
(e)in about 2013, after he had an episode of angina, Mr Shehata said he was sent to have a “stress test”. He said he was in Queensland and went to a hospital there; and
(f)the last time he went to hospital was in 2014. He said that since then he had stopped going to hospital “like he did before” because he had “stayed very quiet at home” and “does not do any activities”.
On the evidence, the Tribunal is satisfied that as at the time of the Qualification Period, Mr Shehata had suffered from a longstanding heart condition that had been present since at least 2012, or perhaps earlier. A stent was placed in his heart, in 2012, and he has attended the emergency department at the hospital on a few occasions since that time. He has seen two different cardiologists about his condition - one in the context of receiving advice about secondary prevention measures.
Notably, since the insertion of the stent, neither the cardiologists, nor his treating general practitioner, have recommended that Mr Shehata undertake any further procedure, medical treatment program or surgery to his heart to alleviate any symptoms. Instead, Mr Shehata was prescribed with preventative medication and the evidence indicates that he has had taken this medication at all times since 2012. In 2014, the medical practitioners recommended that Mr Shehata change the type of prescribed heart medication he was taking. It is noted by the Tribunal that Mr Shetata duly complied with those recommendations.
It is also noted that Mr Shehata has sought to manage his heart condition by changing his daily activities to minimise occasions when he might experience stress. He has undertaken some physical exercises, by using an exercise bike acquired by him, although the Tribunal acknowledges that his efforts in this regard have not been consistent because Mr Shehata said he had experienced pain whilst doing this exercise.
Despite this, on balance, the Tribunal is satisfied that Mr Shehata has undertaken all reasonable treatment that has been recommended to him by his medical practitioners, which can reliably be expected to result in a substantial improvement in Mr Shehata’s functional capacity.
The Tribunal considers that the fact that Mr Shehata has not consulted a cardiologist in the last 18 months or been to hospital since 2014 reflects on the severity of the symptoms that Mr Shehata has experienced during that period. It seems that Mr Shehata has successfully managed to keep his heart condition “in check” by taking the steps referred to above. The Tribunal does not consider that the fact that Mr Shehata has not consulted a specialist for the last 18 months, particularly where he continued to see his treating general practitioner, should lead to a conclusion that his heart condition has not been fully treated, as contended for by the Secretary.
Accordingly, the Tribunal finds that this condition was fully treated and stabilised at the time of the Qualification Period. The Tribunal is also satisfied that given the longevity of this condition and the assessment of Dr Maccar as set out in the Centrelink Medical Form, this condition was likely to last for two years from the time Mr Shehata made his DSP claim. For this reason, the condition was permanent which means that any impairment arising from this condition will be assigned a rating under Table 1.
Impairment rating under Table 1 – Functions requiring Physical Exertion and Stamina
The relevant Impairment Table in relation to Mr Shehata’s heart condition is Table 1.
The Tribunal notes that the assessors who conducted the First JCA considered that a rating of 5 points under Table 1 applied.
The descriptors relevant to a 5-point rating are set out below:
There is a mild functional impact on activities requiring physical exertion or stamina:
(1) The person:
a. Experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
i.Walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
ii.Performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp in a wheelchair) or heavier household activities(e.g. vacuuming floors or mowing the lawn); and
b. Is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
On the evidence (as highlighted in the following two paragraphs), the Tribunal is satisfied that the descriptors set out in (1)(a) clearly applied to Mr Shehata as at the Qualification Period. The evidence indicated that if Mr Shehata were to undertake the activities described in (1)(a)(i) or (ii) he would invariably (and not just occasionally), begin to experience shortness of breath and/or cardiac pain.
The assessors who conducted the First JCA stated that at the time of the assessment Mr Shehata had reported that he had experienced difficulty with engaging in physically demanding activities, such as climbing stairs, as it had caused him to experience chest pain. At the hearing, Mr Shehata elaborated by giving evidence that at the time of the Qualification Period, he had trouble mowing a very small patch of lawn at his home. He said that when he had attempted to do so, he would experience chest pain. He said he had arranged for someone else to “tend to the yard”, as reported by Mr Shehata to the ARO on 31 August 2016. At the hearing, Mr Shehata gave evidence that when he went shopping with his wife he would have to sit in a chair to rest. He also said that on a few occasions he had gone for a walk outside of his home but after 10 minutes of walking, he had to call his wife to ask her to collect him in the car.
The Tribunal is also satisfied that the reason that Mr Shehata stopped working in his 7eleven store (which occurred at a time that preceded the Qualification Period), was due to Mr Shehata’s difficulty with undertaking the physical duties required in that role (and subsequently, he stopped doing any administration for the store to reduce his exposure to stress, which was a trigger to him experiencing symptoms).
However, the Tribunal is not satisfied that the descriptor set out in paragraph (1)(b) for a mild impairment applies to Mr Shehata. The Tribunal finds that on the evidence, Mr Shehata was not “able to perform most work-related tasks, other than tasks involving heavy manual labour”. The Tribunal considers that at the time of the Qualification Period, physically demanding work tasks (such as lifting, carrying and unpacking small or relatively light boxes of stock, for example) on a continuous and repeated basis would have placed him at considerable risk given his heart condition. The Tribunal considers that Mr Shehata’s capacity for work was limited to a clerical, sedentary or stationary nature, as a consequence of his heart condition. Although it accepts Mr Shehata’s evidence that he stopped doing the administrative work at the 7eleven store to avoid the stress it would place on him, the Tribunal is not satisfied that with the intervention of appropriate stress management techniques that Mr Shehata was incapable of safely performing this type of administrative work.

Accordingly, the Tribunal will examine whether the following descriptors for a 10-point rating applied to Mr Shehata:
There is a moderate functional impact on activities requiring physical exertion or stamina:
(1) The person:
a. Experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community, and due to these symptoms, the person:
i.Is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
ii.Has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
b. Is able to:
i.Use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; or
ii.perform work related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
On the evidence referred to in paragraphs [49], [50] and [51] and in consideration of the matters referred to in the following paragraphs, the Tribunal is satisfied that all of these descriptors applied to Mr Shehata as at the time of the Qualification Period.
In particular, the Tribunal is satisfied that Mr Shehata experienced frequent symptoms when performing day to day activities around the home and community. Evidence in support of this conclusion includes that by the end of the Qualification Period, Mr Shehata had significantly curtailed the day to day activities that he involved himself in. He had ceased all work. He said he could no longer do the house work, despite his unsuccessful attempts to do so at times and he said he had arranged for someone else to “tend to the garden”. His evidence was that he stayed very quiet at home and did not do any activities. The Tribunal accepts this evidence and that his reason for doing so was to manage the symptoms of his heart condition.
The Tribunal considers that the descriptor set out in (1)(a)(i) for a moderate impairment applied to Mr Shehata as the time of the Qualification Period based on the evidence of his limited capacity to walk before experiencing cardiac pain, i.e. likely to be no longer than 10 minutes before being incapacitated to a point that he was required to be collected by his wife. The Tribunal also considers that the descriptor set out in (1)(a)(ii) applied to Mr Shehata as at the time of the Qualification Period on account of the evidence referred to in the above paragraph.
The Tribunal considers that both of the descriptors set out in (1)(b) applied to Mr Shehata as at the time of the Qualification Period on account of the following:
(a)the Tribunal acknowledges that the evidence indicated a difficulty for Mr Shehata with his use of public transport, namely, that Mr Shehata described the train as moving which made it hard. However, the Tribunal notes that Mr Shehata was still able to do so, despite this difficulty. At the hearing, Mr Shehata gave evidence that he last used public transport about two or three months ago, albeit in the company of his son; and
(b)the Tribunal relies on its findings as set out at the end of paragraph [51].
To complete the examination of what rating should apply, the Tribunal must now consider whether the descriptors set out for a 20-point rating under Table 1 also applied to Mr Shehata.
The Tribunal is satisfied that a 20-point rating does not apply because it follows from my finding as set out in paragraph [51] that as at the time of the Qualification Period, Mr Shehata was capable of performing work-related tasks of a clerical, sedentary or stationary nature. The Tribunal considers that Mr Shehata could have done so (with appropriate stress management intervention) for a continuous period of longer than three hours. Accordingly, one of the two mandatory descriptors as set out in (1)(b) of the 20-point row of Table 1 does not apply to Mr Shehata and consequently, he cannot be assigned 20 points under Table 1..
Accordingly, the Tribunal concludes that a 10-point rating should be assigned to Mr Shehata’s condition of ischemic heart disease with angina under Table 1.
Left shoulder tendonitis and tear
In the Centrelink Medical Form, Dr Maccar did not refer to this condition.
Five months after the end of the Qualification Period, an ultrasound was performed on 16 May 2016 on Mr Shehata’s left shoulder. In the report for this ultrasound, the radiologist, Dr Meenakshi Padmanabhan stated:
Clinical Notes:
?tendon tear.
Findings:
Full-thickness partial tear adjacent to the biceps tendon measuring 17mm of the supraspinatus. Supraspinatus tendon is heterogeneous.
Suscapularis, infrspinatus and long head of biceps tendon are normal an intact. Subdeltoid bursal thickening with bursal impingement. No joint effusion.
Conclusion:
Supraspinatus tendinosis and tear.
In the First JCA report, the assessors stated:
No information regarding treatment, prognosis or symptoms were available.
Mr Shehata reported treatment as 3 months of physiotherapy to date, he will be reviewed by a specialist to determine if surgery is an option.
Symptoms: Client reported reduced left shoulder movement, some weakness but being able to handle most objects.
Considering this condition is only recently diagnosed and the client is undergoing treatment this condition is not yet considered to be fully treated or stable.
In the Second JCA report, the assessors stated:
Past treatment: no information, client stated in previous JCA report he has had three months of physiotherapy
Current treatment: no information
Future treatment: no information, the client stated in previous JCA report he was to be reviewed by an orthopaedic specialist
Prognosis: not specified
Impact: not specified, the client stated in the previous JCA report that he had reduced shoulder movement and loss of strength but that he can manage most objects.
This condition is assessed as permanent and fully diagnosed, but is unable to be considered fully treated or stabilised as it appears that the client has not seen a specialist or undertaken optimal treatment at the time under consideration for this appeal (September – November 2015).
On the evidence referred to above, at the time of the Qualification Period, the Tribunal finds that this condition was not permanent, as I am not satisfied that it was fully diagnosed, treated and stabilised. No diagnosis was made by Dr Maccar in the Centrelink Medical Form. Further, there was no other medical evidence available in relation to this condition which preceded the end of the Qualification Period, being 4 December 2015. Notably, the CT scan on Mr Shehata’s left shoulder was performed after the end of the Qualification Period.
At the First JCA, Mr Shehata confirmed that he had received physiotherapy for the three months leading up to that assessment being March, April and June 2016, which also falls after the Qualification Period. The reference in the First JCA report suggested that Mr Shehata was to be reviewed by a specialist following that assessment. This also indicated that the treatment of this condition was still continuing as at June 2016. For this reason, the Tribunal is satisfied that Mr Shehata’s left shoulder condition was not fully treated and stabilised at any time before the end of the Qualification Period.
Accordingly, the Tribunal finds that as at the time of the Qualification Period, Mr Shehata’s condition of left shoulder tendonitis and tear was not permanent. For this reason, any impairment arising from this condition, did not attract an impairment rating under Table 2 (Upper Limb Function).
Osteoarthritis of the knees
In the Centrelink Medical Form, Dr Maccar listed “knee OA” as a condition that Mr Shehata had which was “generally well managed and that had caused minimal or limited contact”.[14]
[14] Refer T-documents T5/38.
In the First JCA report, the assessors reported that Mr Shehata confirmed that this condition was “chronic, well managed and had no/minimal impact on function”. The assessors considered this condition to be permanent as it was fully diagnosed, treated and stabilised. The assessors recommended an impairment rating of zero for this condition. They assessed the functional impairment as nil, due to the condition having “no/limited impact”.
In the Second JCA report, the assessor stated:
Knee osteoarthritis – medical report from Dr Maccar dated 10/09/15.
This condition is noted in question 6 on the medical report as a condition that is generally well managed and that causes minimal impact. The previous JCA report indicates that the client confirmed that this condition was well managed with no or minimal impact. The condition has been assessed as permanent but with no other information available is unable to be assessed as fully diagnosed treated or stabilised – further information was not sought given the limited functional impact.
The Tribunal finds that the condition of osteoarthritis in the knees was fully diagnosed at the time of the Qualification Period on account of the diagnosis of Dr Maccar on the Centrelink Medical Form. However, there was insufficient evidence before the Tribunal in relation to this condition to make a finding that it was fully treated and stabilised. Accordingly, the Tribunal finds that this condition was not permanent and does not attract a rating under Table 3 (Lower Limb Function).
Back and neck (spinal) condition
On the Centrelink Medical Form, Dr Maccar confirmed a diagnosis that Mr Shehata suffered from “discogenic lower back pain and neck pain”.[15] It was stated that this diagnosis was supported by a CT scan of the lumbar spine.
[15] Refer T-Documents T5/32.
The current treatment was recorded as “physiotherapy – pain killer”; past treatment recorded as “as before”; and future/planned treatment as “as before”. On the form when Dr Maccar was asked whether he or another doctor from his practice had previously referred this patient to a specialist. Dr Maccar answered “yes” and listed “back pain physiotherapy”. The current symptoms were described by Dr Maccar as “lower back pain and neck pain with radiculopathy”. Dr Maccar recorded the impact of this condition on Mr Shehata as follows: “lower back with neck pain”.
A CT scan was performed on Mr Shetata’s lumbar spine and a report was issued by Dr Ian Clare dated 24 February 2014, which stated as follows:
CT LUMBAR SPINE:
There is a moderate lumbar scoliosis convex to the left. Mild to moderate degenerative change is seen in the facet joints of the mid to lower lumbar spine.
Mild degenerative disc disease is present throughout the lumbar spine with mild diffuse disc bulges and marginal osteophytes but the disc heights are normal. At L3/4 and L5/S intervertebral foramina show moderate to marked disc osteophyte narrowing, raising the possibility of impingement and clinical correlation is necessary.
Conclusion:
Multilevel mild lumber degenerative disc disease. L3/4 and L4/5 mild to moderate central canal stenosis. L4/5 and L5/S1 bilateral moderated to marked foraminal stenosis.
The Secretary contended that Mr Shehata’s back and neck pain was not fully treated and stabilised during the Qualification Period.[16]
[16] Refer paragraph [34] of the Secretary’s Statement of Facts, Issues and Contentions dated 19 June 2017 (Secretary’s SFIC).
In the First JCA report, the assessor stated:
Client reported he is limited to walking to 30 minutes due to leg pain, he is easily able to bend to knee level and straighten up again, he is able to sit for an hour before needing to stand.
Considering the client has no further treatment plan which is likely to improve his symptoms this condition is considered to be fully diagnosed, treated and stable.
The ARO in reference to her telephone conversation with Mr Shehata on 31 August 2016, stated as follows:
Samy advised he has problems with his back and he is always in pain and is not capable of working…
We first discussed [Mr Shehata’s] back problem. Samy told me that he(sic) if he can sit up for 15 minutes before it becomes so painful he has to get up and walk around or changing positions. When questioned, Samy told me that he is able to drive however he drives to local shops only and doesn’t go very far. He can turn his head to should check if he’s taken medication. He stated he can’t turn his head if the pain medication is not working. He stated he can turn his head but does it with pain. Samy told me he is able to walk for about 15 minutes before it becomes so painful he has to rest. He stated the pain doesn’t go away straight away when he rests.
…
When questioned, Samy told me that he does very little around the home – he might go out into the garden and do a small amount of weeding here and there. He has someone now to tend to the yard.
The ARO also reported that Mr Shehata had said he was continuing with physiotherapy for his back.
In the Second JCA report, the assessor stated:
Phone contact was made with Dr Maccar on 26/4/17 – during the discussion Dr Maccar noted that at the time under consideration for this appeal (4 September – 4 November 2015) the client’s condition were all diagnosed. The Doctor stated that in relation to the client’s neck and back nothing had changed and in his opinion a specialist was not required.
This condition is considered permanent given the history and nature of it as reported. The condition is unable to be considered fully diagnosed, treated and stabilised at the time under consideration for the appeal (September – November 2015) as there is nothing to suggest that the client had seen any specialist for review, definitive diagnosis or treatment recommendations at that stage.
Mr Shehata gave evidence at the AAT1 hearing on 5 December 2016 as follows:
[25]…he said that he had developed low back pain in 1991 after years of lifting heavy objects at work. He received advice from a neurosurgeon that surgical intervention would not help his symptoms. He received a workers compensation settlement for his lower back problems, and then worked in a position involving only light physical duties at his brother-in-law’s business from 2000 until he retired in 2012, allowing his son to take over the business.
[26] Other than for contact with specialists in the context of his workers compensation claim during the 1990’s, he had not had his lower back pain assessed by a specialist involved in its management, until his consultation with Dr Thomas in June 2016.
[27] He continues to attend physiotherapy sessions every fortnight or so, and has done so ever since the original injury in 1994. He takes Panadol Osteo medication every day, and takes the stronger pain-killer Tramadol on two or three days each week, if his low back pain becomes worse. No alternation to his medication was made following his consultation with Dr Thomas, and he has no arrangements for any further review with Dr Thomas or any other relevant specialist regarding his low back disturbance.
The Tribunal was provided with a copy of a medical report by Dr Clayton Thomas dated 14 July 2016. The report indicates that Dr Thomas first examined Mr Shehata on 13 July 2016. With one exception, the Tribunal in unable to take into consideration this evidence as it contains observations of Mr Shehata’s conditions and symptoms reported by Shehata six months after the end of the Qualification Period. The one exception is that the report indicates that Dr Thomas took note of a CT scan of Mr Shehata’s lumbar spine from 2008 which he said showed “quite a marked scoliosis at the thoracic level and quite marked multilevel degenerative disc disease”.
The Tribunal is satisfied on the medical evidence that at the time of the Qualification Period, this further condition was fully diagnosed, treated, and stabilised. The Tribunal is also satisfied that given the longevity of this condition and the assessment of Dr Maccar as set out in the Centrelink Medical Form, this condition was likely to last for at least two years from the time Mr Shehata made his DSP claim. The Tribunal concludes that this spinal condition was a permanent condition impairing Mr Shehata’s spinal function.
Impairment rating for spinal condition
The Introduction to Table 4 provides that “Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck”. The Introduction makes it clear that self-report of symptoms alone is insufficient and there must be corroborating evidence of the person’s impairment. This principle is consistent with the requirements of s 8(1) of the 2011 Determination.
The Introduction to Table 4 also provides examples of corroborating evidence, being a report by a treating doctor or specialist or a report from a physiotherapist or other rehabilitation practitioner, though it does not limit corroborating evidence to those particular types cited.
At the hearing before this Tribunal, Mr Shehata gave evidence that at the time of the Qualification Period:
(a)he could reach over head, bend down to pick up a light object, bend over to knee level, turn his trunk from side to side and turn his head from side to side but doing so would cause him pain;
(b)he would be in pain when he came back up after bending down, although he confirmed that he was able to straighten up without assistance;
(c)he was able to look over his shoulder but not “all the way” as this would make it sore;
(d)it would be too much for him to sit in the same spot for more than 30 minutes. He said he could sit for about 20 minutes. He said he had a problem with his coccus bone which made sitting down difficult for him and that he was given a special injection to relieve the nerve; and
(e)he could stand up from a seated position.
The Secretary contended that no rating should be applied under Table 4 because the condition was not permanent. In the alternative, it was contended that if the Tribunal is satisfied that the condition was permanent, a 5-point impairment rating should be assigned to Mr Shehata’s spinal condition.
The descriptors for a 5-point rating to apply under Table 4 are as follows:
There is a mild functional impact of activities involving the spinal function.
(1) The person has some difficulty in:
a.    Activities over head height (e.g. activities requiring the person to look upwards); or
b.    Bending to knee level and straightening up again without difficulty; or
c.     Turning their trunk or moving their head (e.g. to look to the sides or upwards).
Mr Shehata’s evidence given at the hearing, as corroborated by the radiological findings undertaken in February 2014, satisfies the Tribunal that Mr Shehata had some difficulty undertaking each of the movements referred to in the above paragraph. The Tribunal finds that each of the descriptors for a 5-point rating applied to Mr Shehata.
The Tribunal will now consider whether the descriptors for a 10-point rating applied to Mr Shehata as at the time of Qualification Period. The descriptors are set out below:
There is a moderate functional impact on activities involving spinal function:
(1) The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)The person is unable to sustain overhead activities (e.g. accessing items overhead height); or
(b)The person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or
(c)The person is unable to bend forward to pick up a light object placed at knee height; or
(d)The person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
The first requirement of a 10-point rating is to determine whether the person is able to sit in or drive a car for at least 30 minutes. The Tribunal is satisfied that on the evidence, Mr Shehata was able to do so. Specifically, the assessors who conducted the First JCA in June 2016 reported that Mr Shehata had stated to them that he was able to sit for an hour before needing to stand – see paragraph [75]. Mr Shehata gave conflicting evidence at the hearing that he could only sit for about 20 minutes but the Tribunal considered that this was likely to have been as a result of a temporary problem he had experienced with his coccus bone which was subsequently relieved by an injection. The Tribunal is satisfied that Mr Shehata was able to sit in a car for at least 30 minutes so this first mandatory descriptor applied to Mr Shehata.

The other mandatory descriptor is that at least one of the further descriptors in (1)(a) to (d) applied.
On Mr Shehata’s own evidence at the hearing, the descriptor in 1(a) did not apply as he said he was able to sustain overhead activities, albeit whilst experiencing pain.
Likewise, the descriptor in 1(c) did not apply as Mr Shehata gave evidence that he was able to bend forward to pick up a light object placed at a knee height, albeit also whilst experiencing pain.
The descriptor in 1(d) did not apply as Mr Shehata said he did not require assistance when getting up out of a chair.
The issue in this case is whether the descriptor in 1(b) applied. The Tribunal considers there to be insufficient evidence before it to find that as at the time of the Qualification Period, Mr Shehata experienced difficulty (as distinct from some difficulty) in moving his head to look in all directions (e.g. turning his head to look over his shoulder). The evidence was that he was able to drive his car (see Mr Shehata’s statements to the ARO in August 2016 – paragraph [76]) and to do so; this activity required him to have executed such movements. The Tribunal acknowledges that Mr Shehata may have experienced some pain when he undertook those movements if his pain medication was “not working”. However, this does not disturb this Tribunal’s finding that the descriptor in 1(b) does not apply to Mr Shehata. The Tribunal has also afforded very little weight to the evidence of Dr Maccar given in his report dated 29 March 2017 (see paragraph [32]), as it was issued 15 months after the end of the Qualification Period.
As none of the descriptors in (1)(a) to (d) applied to Mr Shehata, this Tribunal finds that his spinal condition did not attract a 10-point rating under Table 4. Instead, the Tribunal finds that these conditions had a mild impact on Mr Shehata’s spinal function and assigns 5-points under Table 4.
Varicose veins
In the Centrelink Medical Report, Dr Maccar listed “varicose veins” as a condition that Mr Shehata had which was “generally well managed and that had caused minimal or limited contact”.[17]
[17] Refer T-documents T5/38.
In the Second JCA report, the assessor stated:
Varicose veins – medical report from Dr Maccar dated 10/09/15.
This condition is noted in question 6 of the medical report as a condition that is generally well managed and that causes minimal impact. The previous JCA report indicates that the client confirmed that this condition was well managed with no or minimal impact.
The condition has been assessed as permanent but with no other information available is unable to be assessed as fully diagnosed treated or stabilised – further information was not sought given the limited functional impact.
The Tribunal finds that the condition of varicose veins was fully diagnosed at the time of the Qualification Period on account of the diagnosis of Dr Maccar on the Centrelink Medical Form. However, there was insufficient evidence before the Tribunal in relation to this condition to make a finding that it was fully treated and stabilised. Accordingly, the Tribunal finds that this condition was not permanent and does not attract a rating under Table 3 (Lower Limb Function).
CONCLUSION
For the reasons outlined in this decision, the Tribunal concludes that during the Qualification Period:
(a)Mr Shehata had impairment to his:
(i)function requiring physical exertion and stamina arising from the condition of ischemic heart disease with angina; and
(ii)spinal function arising from the condition of low back pain and neck pain;
(b)those conditions were fully diagnosed, fully treated and fully stabilised and they were more likely than not to persist for more than two years. Therefore, those conditions are permanent within the meaning of s 6(4) of the 2011 Determination;
(c)while it was claimed that Mr Shehata had impairment to his lower limb function arising from osteoarthritis to the knee and varicose veins, those conditions were fully diagnosed but not fully treated and fully stabilised at the time of the Qualification Period. As such, they were not permanent conditions under s 6(4) of the 2011 Determination;
(d)while it was claimed that Mr Shehata had impairment to his upper limb function arising from left shoulder tendonitis and tear, this condition was fully diagnosed but not fully treated and fully stabilised at the time of the Qualification Period. As such, it was not a permanent condition under section 6 of the 2011 Determination;
(e)the following ratings under the Impairment Tables applied to both of Mr Shehata’s impairments arising from conditions which were found to be permanent:
(i)Impairment to functions requiring Physical Exertion and Stamina: 10 points under Table 1; and
(ii)Impairment to spinal function: 5 points under Table 4.
Mr Shehata’s combined level of impairment arsing under Table 1 and Table 4, being 15 points, did not meet the 20 points required to satisfy one of the mandatory eligibility requirements as set out in s 94(1)(b) of the Act. This being so, there is no need for the Tribunal to consider whether Mr Shehata also met the mandatory “continuing inability to work” requirement under s 94(1)(c) of the Act.
The Tribunal has empathy for Mr Shehata as it is clear that he has suffered from a number of medical conditions since at least 2012. This has had a significant impacted on Mr Shehata to the point that he has elected to stop working in his business. It is also noted that his medical conditions are not likely to improve and in fact, they appeared to be slowly deteriorating. However, as at the time Mr Shehata made his DSP claim on 4 September 2015 and in the 13 weeks that followed, based on the evidence that was before the Tribunal as relevant to this period, I am satisfied that Mr Shehata did not meet the eligibility requirements for DSP as his conditions did not attract at least 20 impairment points as required under s 94(1)(b) of the Act.
Accordingly, the Tribunal affirms the decision of the AAT1 to reject his claim for the DSP.

I certify that the preceding 102 paragraphs are a true copy of the reasons for the decision herein of Member K. Parker

[sgd]......................................................................
Associate
Dated: 4 April 2018

Date of hearing:

31 July 2017

Representative for the Applicant:

Istarlin Hassan, Simple Solutions Guide

Representative for the Respondent: Belinda Lewis, Department of Human Services

[2018] AATA 747

4 April 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Standing

Date of hearing:	31 July 2017
Representative for the Applicant:	Istarlin Hassan, Simple Solutions Guide
Representative for the Respondent:		Belinda Lewis, Department of Human Services