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

[2016] AATA 559

Sirett and Secretary, Department of Social Services (Social services second review) [2016] AATA 559 (1 August 2016)

Division	GENERAL DIVISION
File Number	2015/5378
Re	Steven Sirett
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

DECISION

Tribunal	Member D K Grigg
Date	1 August 2016
Place	Brisbane

The decision under review is affirmed.

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

Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – DSP – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth), ss 26, 94
Social Security (Administration) Act 1999 (Cth), ss 41, 42, Schedule 2, Part 2
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA 368
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534

REASONS FOR DECISION

Member D K Grigg

1 August 2016

INTRODUCTION

1. Mr Steven Sirett suffers from a number of medical conditions which he says affects his ability to function and work.

2. On 16 February 2015 Mr Sirett lodged a claim for Disability Support Pension (“DSP”), listing his medical conditions as “bipolar, ADD, ADHD, high anxiety, hiatus hernia, gord reflux, torn supraspinatus in left + right shoulders, chronic neck shoulder and back pain, bursitis, nerve damage, cholesterolemia, migraines” (“Claimed Medical Conditions”).[1] To date Mr Sirett’s claim has been rejected. Mr Sirett seeks a further review by this Tribunal.

   [1]           Exhibit 1, T Documents, T31, pages 180-182, extracts of Mr Sirett’s claim for DSP dated 16 February 2015.

Claim History

1. After a Job Capacity Assessment (“JCA”) Mr Sirett’s claim was rejected by a Department of Human Services (Centrelink) officer on 25 February 2015.[2] The JCA concluded that Mr Sirett’s impairments were either not fully treated and not fully stabilised or did not attract 20 points or more under the Impairment Tables.[3]

   [2]           Exhibit 1, T Documents, T34, pages 200-201, Centrelink letter to Mr Sirett dated 25 February 2015.

   [3]           Exhibit 1, T Documents, T33, pages 194-199, Job Capacity Assessment report dated 23 February 2015.

2. Mr Sirett then sought a review of that decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Sirett’s impairment did not attract 20 points or more under the Impairment Tables.[4]

   [4]           Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 February 2016, Attachment A, Authorised

   Review Officer’s letter and decision dated 2 April, 2015.

3. On 1 May 2015, Mr Sirett lodged an application for review with the Social Services and Child Support Division (“SSCSD”).[5] The SSCSD rejected Mr Sirett’s claim and affirmed the ARO’s decision on 9 July 2015.[6]

   [5]           Exhibit 1, T Documents, T37, page 222, Electronic File Notes (DHS-Centrelink), dated 1 May 2015.

   [6]           Exhibit 1, T Documents, T2, pages 3-10, SSCSD’s Decision and Reasons for Decision dated 9 July 2015.

4. Mr Sirett has sought a review of the SSCSD’s decision by this Tribunal.

ISSUES FOR DETERMINATION

1. The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).

2. Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-

   (a)Mr Sirett must have a physical, intellectual or psychiatric impairment;

   (b)Mr Sirett’s impairments must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”).[7]

   (c)Mr Sirett must have a continuing inability to work.

   [7] A legislative instrument made under the Act: see s 26(1).

3. The date for determining whether Mr Sirett meets the Section 94 Requirements is the date of the claim, (in this instance as at 17 February 2015, the date the DSP claim was lodged) unless Mr Sirett becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[8] Therefore, in order to qualify for DSP Mr Sirett must have met the Section 94 Requirements between 17 February 2015 and 19 May 2015 (the “Qualification Period”).

   [8] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999

   (Cth).

4. It is important to keep in mind that medical evidence concerning the functional impact of Mr Sirett’s impairments after the Qualification Period cannot be considered unless it “casts light on” the functional impact of the impairments during the Qualification Period.[9]

DID MR SIRETT HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT DURING THE QUALIFICATION PERIOD: section 94(1)(a)?

[9]           See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on

appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97

ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].

What is an Impairment

1. The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[10]

   [10] Determination, s 3.

Mr Sirett’s medical conditions

1. Mr Sirett says his Claimed Medical Conditions affect his functional ability as follows:[11]

   Cannot sit or stand for long periods, no lifting/carrying, bending, twisting, walking, stairs, severe memory loss, introverted, antisocial, nausea, fatigue, insomnia

   [11]         Exhibit 1, T Documents, T31, at page 180, Mr Sirett’s Medical Conditions from Claim for DSP dated 16 February

   2015.

2. Dr Kaylene Ferguson, Mr Sirett’s general practitioner, described Mr Sirett’s conditions in her report supporting Mr Sirett’s claim as:[12]

   (a)“bipolar affective disorder and being investigated and treated adult ADD” which she reported as diagnosed on 10 February 2012; and

   (b)“chronic back and neck pain” onset on 10 February 2011 as a result of a motor vehicle accident.

   [12]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

3. Dr Ferguson also identified the following additional medical conditions suffered by Mr Sirett are well managed and cause minimal or limited impact on his ability to function:[13]

   Gord, hiatus hernia…
                 Umbilical hernia, pain, unable to lift, carry – awaiting surgery

   Bilateral shoulder pain…       

   [13]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

4. Radiology reports concerning Mr Sirett’s umbilical hernia identified:[14]

   There is a umbilical hernia involving the superior rim of the umbilicus.

   [14]         Exhibit 1, T Documents, T24, page 162, Radiology Report of Dr Daynes, dated 7 November 2013.

5. Dr Pandithasekera reported that Mr Sirett suffered from bipolar affective disorder in February 2012, however she is not a psychiatrist or clinical psychologist and provided no relevant specialist reports.[15]

   [15]         Exhibit 1, T Documents, T12, pages 87-94, Medical report form completed by Dr Pandithasekera dated 13 February

   2012.

6. Dr Chung, a psychiatrist:[16]

   (a)diagnosed Mr Sirett with “adjustment disorder with anxiety and depressive symptoms”;

   (b)referred to, and did not dispute, the earlier diagnosis of “bipolar disorder” made by Dr Pandithasekera; and

   (c)referred to the bipolar disorder as “pre-existing”.

   [16]         Exhibit 1, T Documents, T14, pages 103-118, Medicolegal Report of Dr Chung dated 29 February 2012.

7. Dr Rigo Van Meer, a psychiatrist, reports that he diagnosed Mr Sirett with “quite severe adult ADHD, combined presentation (i.e. attention deficit and marked hyperactivity)” in November 2014.[17]

   [17]         Exhibit 1, T Documents, T36, page 203, Letter from Dr Van Meer dated 17 April 2015.

8. A JCA was conducted face-to-face with Mr Sirett on 19 February 2015 by a Registered Occupational Therapist and a Registered Psychologist. The JCA assessors’ report states that Mr Sirett suffered from:[18]

   ·Bipolar Affective Disorder (which was found to be fully diagnosed but not fully treated and not fully stabilised);

   ·Spinal disorder (which was found to be fully diagnosed, fully treated and fully stabilised);

   ·Gastro-oesophageal reflux disease (GORD) (which was found to be fully diagnosed, fully treated and fully stabilised)

   ·Hernia  - umbilical (verified by medical evidence and temporary)

   ·Shoulder and Upper Arm Disorder (verified by medical evidence and temporary)

   [18]         Exhibit 1, T Documents, T33, pages 194-199, Job Capacity Assessment report dated 23 February 2015.

9. The Respondent accepts that Mr Sirett had impairments for the purposes of section 94(1)(a) during the Qualification Period.[19]

   [19] See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 February 2016, paragraph [26].

Conclusion on Impairments

1. In light of the above evidence I conclude that during the Qualification Period Mr Sirett suffered the following Impairments for the purposes of the Act and that the requirement in section 94(1)(a) has been met:

   ·Bipolar disorder/Adjustment disorder with anxiety and depressive symptoms and ADHD 

   ·Spinal disorder

2. Whilst acknowledging that Mr Sirett suffers from GORD, umbilical hernia and bilateral shoulder pain there is no evidence to establish that those conditions affected his functional capacity during the Qualification Period. Dr Ferguson reports that these conditions cause minimal or limited impact on Mr Sirett’s ability to function.[20]

DO MR SIRETT’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: Section 94(1)(b)?

[20]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

2015.

How are Impairment Ratings Assessed?

1. The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[21] They are function based[22] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[23]

   [21] Determination, ss 4(2) and 5(2)(a).

   [22] Determination, s 5(2)(b) and (c).

   [23] Determination, s 5(2)(d).

2. I can only assign an Impairment Rating to an impairment if:[24]

   (a)Mr Sirett’s condition causing that impairment is “permanent”; and

   (b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [24] Determination, see s 6(3).

3. The requirement that a condition must be “permanent” is a requirement which applies as at the date the claim for a pension is lodged, or during the Qualification Period.[25]

   [25]         De Vries v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2014] FCA

   368 at [12].

4. Mr Sirett’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[26]

   (a)The condition has been fully diagnosed by an appropriately qualified medical practitioner;

   (b)the condition has been fully treated;

   (c)the condition has been fully stabilised; and

   (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

   [26] Determination, see s 6(4).

5. In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[27] the following must be considered:[28]

   (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.

   [27] For the purposes of ss 6(4)(a) and (b) of the Determination.

   [28] Determination, see s 6(5).

6. A condition is fully stabilised[29] if:[30]

   (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;[31] or

   (ii)    there is a medical or other compelling reason for the person not to undertake reasonable treatment.

   [29] For the purposes of ss 6(4)(c) and 11(4) of the Determination.

   [30] Determination, see s 6(6).

   [31]         For reasonable treatment see s 6(7) of the Determination.

7. Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.

8. However, before applying the Tables I must first consider Mr Sirett’s medical history, in relation to the condition/s causing the impairment/s.[32]

   [32] Determination, see s 6(2).

9. I will now consider each of Mr Sirett’s Impairments.

Mental Health Impairment – Bipolar/ADHD

Is Mr Sirett’s ADHD permanent and likely to persist for at least 2 years?

1. Dr Van Meer, a psychiatrist, reported in April 2015 that the ADHD condition is being treated with dexamphetamine and that this condition was stabilised.[33]

   [33]         Exhibit 1, T Documents, T36, page 203, Letter from Dr Van Meer dated 17 April 2015.

2. Dr Ferguson reported that in her opinion these conditions are chronic, stable and treated.[34]

   [34]         Exhibit 1, T Documents, T35, page 202, Letter from Dr Ferguson to Centrelink dated 16 March 2015.

3. In the medical report lodged with the claim Dr Ferguson reports that:

   (a)Mr Sirett was being treated with dexamphetamine and future planned treatment included psychiatric review and medication adjustment;[35] and

   (b)this condition would persist for more than 24 months and remain unchanged for the next 2 years.[36]

   [35]         Exhibit 1, T Documents, T32, page 187, Medical Report Form of Dr Ferguson dated 17 February 2015.

   [36]         Exhibit 1, T Documents, T32, page 188, Medical Report Form of Dr Ferguson dated 17 February 2015.

4. The JCA undertaken on 19 February 2015 concluded that because Mr Sirett was continuing to have psychiatric review and possible medical adjustment that this condition was not therefore fully treated or fully stabilised.[37]

   [37]         Exhibit 1, T Documents, T33, page 195, Job Capacity Assessment report dated 19 February 2015.

5. The Respondent concedes that Mr Sirett’s ADHD was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[38]

   [38] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraph [35].

6. The medical evidence supports the Respondent’s concession.

7. I find that during the Qualifying Period Mr Sirett’s mental health impairment (ADHD) was permanent and likely to persist for at least 2 years.

8. I now have to assign an Impairment Rating under the Impairment Tables.

Using the Impairment Tables

1. I have to assess the level of impact of Mr Sirett’s mental health impairment against the descriptors[39] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[40]

   [39] Determination, see ss 3 and 5(3).

   [40] Determination, see ss 3 and 5(3).

2. Section 6 of the Impairment Tables sets out the rules governing the determination of an impairment.

3. The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[41]

   [41] Determination, see s 6(1).

4. I am obliged by the Determination to take the following information into account in applying the Tables:[42]

   (a)the information provided by the health professionals specified in the relevant Table; and

   (b)any additional medical or work capacity information that may be available; and

   (c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.

   [42] Determination, see s 7.

5. I must not take into account the following information in applying the Tables:[43]

   (a)symptoms reported by Mr Sirett in relation to his condition where there is no corroborating evidence;

   (b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Sirett’s local community.

   [43] Determination, see s 8.

6. Which Tables are appropriate are determined by:[44]

   (a)identifying the loss of function; then

   (b)referring to the Table related to the function affected; then

   (c)identifying the correct impairment rating.

   [44] Determination, see s 10(1).

7. Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[45]

   [45] Determination, see s 10(3).

8. If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[46]

   [46] Determination, see s 11(1).

9. The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[47]

   [47] Determination, see s 11(3).

10. Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[48]

Evidence Identifying the Loss of Function

[48] Determination, see s 11(5).

1. In relation to the mental health condition, Dr Ferguson reports:[49]

   (a)this significantly affects Mr Sirett’s functional ability as follows:

   Difficulty planning, poor decision making, poor social skills, poor sleep tiredness, irritability exacerbated by chronic pain

   (b)that, as a result, Mr Sirett experiences “….mood, mood swings, poor sleep, poor concentration and memory, difficult interpersonal relationships, frustration and aggression”.

   [49]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

2. The JCA did not report on the functional impact of this condition however it was noted that Mr Sirett:[50]

   Reports current symptoms include labile mood, mood swings, poor sleep pattern, reduced concentration and memory in addition to periods of frustration that may lead to anger.

   [50]         Exhibit 1, T Documents, T33, page 195, Job Capacity Assessment report dated 23 February 2015.

3. In April 2015 Dr Van Meer, Mr Sirett’s psychiatrist at the time, reported that “[n]otwithstanding the stabilisation of his ADHD he still has residual symptoms.” [51]  He did not elaborate on what those symptoms were.

   [51]         Exhibit 1, T Documents, T36, page 203, Letter from Dr Van Meer dated 17 April 2015.

1. At the hearing before me Mr Sirett gave evidence that:

   ·He currently rents a room in a friend’s house. His friend works in the mines and is often away;

   ·He shops for, and prepares, food by himself;

   ·He drives a car;

   ·The relationship with his wife was strained and in April 2016 they separated;

   ·He has no assistance and needs no assistance at home;

   ·He does not always clean the house;

   ·He travelled overseas just prior to and after his DSP claim being made to visit family and friends.

2. Mr Sirett was clearly frustrated with the DSP claim process, however he had no apparent difficulty concentrating and communicating through the course of the hearing which lasted for over an hour.

3. The question therefore is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.

Relevant Impairment Table and Impairment Rating

1. In light of the evidence I consider that Table 5 of the Determination, which deals with Mental Health Function, is the relevant Table.

2. The introduction to Table 5 provides that:

   ·    Table 5 is to be used where the person has a permanent condition resulting in functional impairment due to a mental health condition (including recurring episodes of mental health impairment).

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

   ·    Self-report of symptoms alone is insufficient.

   ·    There must be corroborating evidence of the person’s impairment.

   ·    Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:

   oa report from the person’s treating doctor;

   osupporting letters, reports or assessments relating to the person’s mental health or psychiatric illness;

   ointerviews with the person and those providing care or support to the person.

   ·    In using Table 5 evidence from a range of sources should be considered in determining which rating applies to the person being assessed.

   ·    The person may not have good self-awareness of their mental health impairment or may not be able to accurately describe its effects.  This is to be kept in mind when discussing issues with the person and reading supporting evidence.

   ·    The signs and symptoms of mental health impairment may vary over time.  The person’s presentation on the day of the assessment should not solely be relied upon.

   ·    For mental health conditions that are episodic or fluctuate, the rating that best reflects the person’s overall functional ability must be applied, taking into account the severity, duration and frequency of the episodes or fluctuations as appropriate.

3. The Respondent submits that an appropriate Impairment Rating is 5 points.[52]

   [52] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraph [37].

4. In order to assign an Impairment Rating of 5 points the evidence would need to show that Mr Sirett has mild difficulties with most of the following:

   (a)self care and independent living;

   Example: The person lives independently but may sometimes neglect self-care, grooming or meals.

   (b)social/recreational activities and travel;

   Example 1: The person is not actively involved when attending social or recreational activities.
   Example 2: The person sometimes is reluctant to travel alone to unfamiliar environments.

   (c)interpersonal relationships;

   Example: The person has interpersonal relationships that are strained with occasional tension or arguments.

   (d)concentration and task completion;

   Example 1: The person has difficulty focusing on complex tasks for more than 1 hour.
   Example 2: The person has some difficulties completing education or training.

   (e)behaviour, planning and decision-making;

   Example 1: The person has unusual behaviours that may disturb other people or attract negative attention and may sometimes be more effusive, demanding or obsessive than is appropriate to the situation.
   Example 2: The person has slight difficulties in planning and organising more complex activities.

   (f)work/training capacity.

   Example: The person has occasional interpersonal conflicts at work, education or training that require intervention by a supervisor, manager or teacher or changes in placement or groupings.

5. In order to assign an Impairment Rating of 20 points the evidence would need to show that Mr Sirett has severe difficulties with most of the following:

   (a)self care and independent living;

   Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.

   (b)social/recreational activities and travel;

   Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).

   (c)interpersonal relationships;

   Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
   Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.

   (d)concentration and task completion;

   Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
   Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.

   (e)behaviour, planning and decision-making;

   Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.

   (f)work/training capacity.

   Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.

6. The medical evidence regarding the functional impact of Mr Sirett’s mental health impairments is limited. There is no evidence that:

   (a)Mr Sirett needs regular support to live independently;

   (b)Mr Sirett has difficulty travelling;

   (c)Mr Sirett has difficulty concentrating on any task or conversation for more than 10 minutes;

   (d)Mr Sirett’s behaviour, thoughts and conversation are significantly and frequently disturbed.

7. Based on the medical evidence available and the evidence given by Mr Sirett, I find that Mr Sirett:

   (a)lives independently but may sometimes neglect house cleaning;

   (b)is not actively involved in any social or recreational activities;

   (c)has a strained relationship with his wife with occasional tension or arguments; and

   (d)has some difficulties with behaviour, planning and decision-making.

8. I find, therefore, that his mental health impairments were having a “mild” functional impact on activities in the Qualification Period. Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 5 points.

Spinal Disorder

Is Mr Sirett’s spinal disorder permanent and likely to persist for at least 2 years?

1. In 2011, Dr Laherty, a neurosurgeon, reported that he did “not think that there [was] a surgical solution of his symptoms and [he] acknowledge[d] that for a young man has quite degenerative changes though out his spine”.[53]

   [53]         Exhibit 1, T Documents, T8, page 60, Letter from Dr Laherty dated 14 July 2011.

2. In 2012 Dr Campbell, a neurosurgeon, reported that “At 11 months post injury, Mr Sirett’s condition has reached maximum medical improvement. It is unlikely that there will be any significant alteration in his symptoms in the future.”[54]

   [54]         Exhibit 1, T Documents, T10, pages 78-84, Medico-legal Report of Dr Campbell dated 20 January 2012.

3. X-Ray and ultrasound reports of Mr Sirett’s cervical spine identified:

   ·     Multiple areas of abnormality but the worst affected are the right C5/6 and left C6/7 foramina. I note the anterior and posterior congenital fusion of C2/3 level.[55]

   ·     Moderate degree of cervical spondylosis…evidence of disc and plate degenerative change at C4/5, C5/6 and, to a lesser degree at C6/7…significant foraminal narrowing on the left side at C6/7potentially contacting the left C7 nerve root.[56]

   [55]         Exhibit 1, T Documents, T26, page 164, X-Ray Report of Dr Yousaf, dated 13 May 2014.

   [56]         Exhibit 1, T Documents, T17, pages 133-134, X-Ray Reports of Dr Ratanjee, dated 5 April 2012.

4. In the medical report lodged with the claim Dr Ferguson reports that:

   (a)Mr Sirett was being treated with analgesics, anti-inflammatories, steroid injection and future planned treatment included pain relief, physiotherapy and joint injections as needed;[57] and

   (b)this condition would persist for more than 24 months and the effect of this condition on Mr Sirett’s ability to function would deteriorate within the next 2 years.[58]

   [57]         Exhibit 1, T Documents, T32, page 190, Medical Report Form of Dr Ferguson dated 17 February 2015; see also

   Exhibit 1, T Documents, T28 and T29, pages 167-168, Reports of spinal injection by Dr Daynes dated 21 May

   2014 and 10 June 2014.

   [58]         Exhibit 1, T Documents, T32, page 191, Medical Report Form of Dr Ferguson dated 17 February 2015.

5. The JCA undertaken on 19 February 2015 concluded that this condition was fully diagnosed, fully treated and fully stabilised.[59]

   [59]         Exhibit 1, T Documents, T33, page 195, Job Capacity Assessment report dated 19 February 2015.

6. The Respondent concedes that Mr Sirett’s spinal condition was fully diagnosed, fully treated and fully stabilised in the Qualification Period.[60]

   [60] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraph [41].

7. The medical evidence supports the Respondent’s concession.

8. I find that during the Qualification Period Mr Sirett’s spinal impairment was permanent and likely to persist for at least 2 years.

9. I now have to assign an impairment rating under the Impairment Tables.

Evidence Identifying the Loss of Function

1. In relation to the chronic back and neck pain condition Dr Ferguson reports:[61]

   (a)it significantly affects Mr Sirett’s “lifting, bending, carrying” ability; and

   (b)that, as a result, Mr Sirett experiences “headaches, “chronic neck and back pain”, “exacerbation by depressed mood” and “pain lifting/carrying”.

   [61]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

2. The JCA reported on the functional impact of Mr Sirett’s condition:-[62]

   Current symptoms include chronic neck and low back pain and reduced range of movement…which impact on postural tolerances.

   Able to sit in or drive a car for at least 30 minutes

   Difficulty moving his neck in all directions and was observed to have difficulty demonstrating rotation of the neck (needed to rotate his trunk to look over his shoulder)

   [62]         Exhibit 1, T Documents, T33, pages 195, 197, Job Capacity Assessment report dated 23 February 2015.

3. At the hearing before me Mr Sirett gave evidence that:

   (a)He can drive a car

   (b)He can bend down and pick things up off the floor, although it is difficult

   (c)He can turn his head to his shoulder.

4. The question therefore is what the relevant Table to be considered is and what, if any, Impairment Rating should be assigned.

Relevant Impairment Table and Impairment Rating

1. In light of the evidence I consider that Table 4 of the Determination, which deals with Spinal Function, is the relevant Table.

2. 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 diagnosis of the condition must be made by an appropriately qualified medical practitioner.

   ·   Self-report of symptoms alone is insufficient.

   ·   There must be corroborating evidence of the person’s impairment.

   ·   Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:

   oa report from the person’s treating doctor;

   oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);

   oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.

   In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

3. The JCA gave an Impairment Rating of 10 points for this condition.[63]

   [63]         Exhibit 1, T Documents, T33, page 197, Job Capacity Assessment report dated 23 February 2015.

4. The Respondent submits that an appropriate Impairment Rating is 10 points.[64]

   [64] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraph [42].

5. In order to assign an Impairment Rating of 20 points the evidence would need to show that Mr Sirett is unable to:

   (a)perform any overhead activities; or

   (b)turn his head, or bend his neck, without moving his trunk; or

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

   (d)remain seated for at least 10 minutes.

6. In order to assign an Impairment Rating of 10 points the evidence would need to show that Mr Sirett is unable to:

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

   (i)    he is unable to sustain overhead activities (e.g. accessing items over head height); or

   (ii)    he has difficulty moving his head to look in all directions (e.g. turning his head to look over their shoulder); or

   (iii)   he is unable to bend forward to pick up a light object placed at knee height; or

   (iv)   he needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

7. At the JCA Mr Sirett demonstrated difficulty moving his head to look over his shoulder. He is able to sit in a car for at least 30 minutes. There is no evidence that Mr Sirett is unable to perform any overhead activities, or bend forward to pick up a light object from a desk or table, or remain seated for at least 10 minutes.

8. I find, therefore, that his spinal impairment was having a “moderate” functional impact on activities in the Qualification Period. Therefore, the appropriate impairment rating to be assigned for this condition under Table 5 of the Impairment Tables is 10 points.

Gastro-oesophageal reflux disease (“GORD”)

Is Mr Sirett’s GORD permanent and likely to persist for at least 2 years?

1. In relation to Mr Sirett’s claimed GORD condition, there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Ferguson reports that this condition is well managed and causes minimal or limited impact on Mr Sirett’s ability to function.[65]

   [65]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

2. An ultrasound of Mr Sirett’s abdomen in May 2014 found “mild fatty change within the liver. Otherwise normal examination.”[66]

   [66]         Exhibit 1, T Documents, T28, page 166, Ultrasound report re Mr Sirett’s abdomen by Dr Daynes dated 22 May

   2014.

3. The JCA undertaken on 19 February 2015 reported that Mr Sirett confirmed that this condition was well managed and causing limited impact on function. The JCA concluded that this condition was fully diagnosed, fully treated and fully stabilised [67]

   [67]         Exhibit 1, T Documents, T33, page 195, Job Capacity Assessment report dated 19 February 2015.

4. The Respondent disagrees and submits that this condition was not fully diagnosed, fully treated and fully stabilised in the Qualification Period because of evidence given by Mr Sirett at the SSCSD that he had a gastroscopy in June 2015 and was waiting to have a biopsy.[68]

   [68]         See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraphs [52]-[53] and

   Exhibit 1, T Documents, T2, page 8, SSCSD Decision dated 9 July 2015, at para 29.

5. There is no indication from Dr Ferguson of treatment being used for this condition or indeed any other information.

6. I find that there is insufficient evidence to determine whether Mr Sirett’s GORD is fully diagnosed, fully treated and fully stabilised.

Hernia  - umbilical

Is Mr Sirett’s umbilical hernia permanent and likely to persist for at least 2 years?

1. Whilst acknowledging that Mr Sirett suffers from umbilical hernia there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Ferguson reports that this condition is well managed and causes minimal or limited impact on Mr Sirett’s ability to function.[69] Dr Ferguson reported that Mr Sirett was awaiting surgery.[70]

   [69]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

   [70]         Exhibit 1, T Documents, T32, pages 192, Medical report form completed by Dr Ferguson dated 17 February 2015.

2. The JCA undertaken on 19 February 2015 reported that Mr Sirett reports pain symptoms and that he is unable to lift/carry and is awaiting surgery and concluded the condition was therefore temporary.[71]

   [71]         Exhibit 1, T Documents, T33, page 196, Job Capacity Assessment report dated 19 February 2015.

3. Mr Sirett was on a surgery waitlist at the time of the claim.[72]

   [72]         Exhibit 1, T Documents, T25, page 163, Letter from Outpatients – Surgical Waiting List, dated 30 April 2014.

4. The Respondent agrees with the JCA.[73]

   [73]         See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 16 February 2016, paragraphs [49]-[50].

5. I find that Mr Sirett’s umbilical hernia was fully diagnosed but not fully treated and not fully stabilised during the Qualification Period.

   Shoulder and Upper Arm Disorder

6. X-Ray and ultrasound reports of Mr Sirett’s right shoulder identified:

   Subdeltoid bursitis with impingement.[74]

   [74]         Exhibit 1, T Documents, T18, page 135, X-Ray and Ultrasound Report of Dr Young, dated 11 April 2012.

7. In 2012 Mr Sirett had a steroid injection in his right shoulders to assist with the pain.[75] However Mr Sirett indicated to the JCA that he was not sure if they were effective and was yet to return to his GP for further review.[76]

   [75]         Exhibit 1, T Documents, T18, page 136, Radiology request for Ultrasound guided steroid injection 11 April 2012.

   [76]         Exhibit 1, T Documents, T 20, page 124, Job Capacity Assessment report dated 5 March 2015.

8. The Respondent submitted that Mr Sirett’s shoulder disorder was not fully diagnosed, not fully treated and not fully stablised.[77]

   [77]         See Exhibit 2, Respondent’s Statement of Facts and Contentions dated 16 February 2016, paras [46]-[48].

9. In March 2015 the JCA reported that Mr Sirett reported that he:[78]

   (a)was waiting review with an orthopaedic specialist;

   (b)has had physiotherapy;

   (c)continues to take pain medication; and

   (d)has constant pain and reduced range of movement.

   [78]         Exhibit 1, T Documents, T33, pages 194-199, at 196, Job Capacity Assessment report dated 23 February 2015.

10. The JCA determined that Mr Sirett’s shoulder disorder was temporary and not fully treated and not fully stablised.[79]

    [79]         Exhibit 1, T Documents, T33, pages 194-199, at 196, Job Capacity Assessment report dated 23 February 2015.

11. Whilst acknowledging that Mr Sirett suffers from Subdeltoid bursitis in his right shoulder, there is no evidence to establish that this condition affects his functional capacity or caused impairment during the Qualification Period. Dr Ferguson reports that this condition is well managed and causes minimal or limited impact on Mr Sirett’s ability to function.[80]

    [80]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

    2015.

1. Based on the medical evidence available as at the date of Mr Sirett’s claim I find that he had been fully diagnosed with subdeltoid bursitis of the right shoulder.[81] However, I find that Mr Sirett’s upper limb condition has not been fully treated or fully stabilised as, during the Qualifying Period, from the evidence available it is unclear:

   (a)what further treatment would be continued or planned. Apart from the steroid injections, there is no evidence of continued or planned treatment of Mr Sirett’s upper limb condition, although Mr Sirett says he is awaiting review by an orthopaedic specialist. No treatment had been explored during the Qualifying Period.

   (b)whether any further reasonable treatment is likely to result in significant functional improvement to a level enabling Mr Sirett to undertake work in the next 2 years; and, therefore

   (c)whether Mr Sirett has undertaken reasonable treatment for the condition.

   [81]         Exhibit 1, T Documents, T 17, pages 94-104, Medical report form completed by Dr Rafiq dated 14 January

   2015. A number of radiology reports detailing the results of x-rays of Mr Sirett’s elbows and shoulders and an ultrasound scan of Mr Sirett’s left shoulder were attached to Dr Rafiq’s medical report form: see Exhibit 1, T Documents, T 12 and T13, pages 87-88, Medical reports of Dr Robert Taylor, Fraser Coast Radiology dated 22 December 2014 and 23 December 2014.

2. I find that during the Qualifying Period Mr Sirett’s upper limb impairment was not fully treated or fully stabilised during the Qualifying Period and therefore is not permanent and no Impairment Rating can be assigned.

Mr Sirett’s Chronic Pain

1. In association with his other medical conditions, Mr Sirett has chronic pain.[82]

   [82]         Exhibit 1, T Documents, T32, pages 183-193, Medical report form completed by Dr Ferguson dated 17 February

   2015.

2. I find that Mr Sirett was fully diagnosed with chronic pain resulting from his osteoarthritis during the Qualifying Period.

3. Section 6(9) of the Determination relevantly provides that as there is no Table dealing specifically with pain and that when assessing pain the following must be considered:

   (a)acute pain is a symptom which may result in short term loss of functional capacity in more than one area of the body; and

   (b)chronic pain is a condition and, where it has been diagnosed, any resulting impairment should be assessed using the Table relevant to the area of function affected; and

   (c)whether the condition causing pain has been fully diagnosed, fully treated and fully stabilised for the purposes of subsections 6(5) and (6).

4. I have already found that the condition causing the chronic pain, the spinal condition, has been fully diagnosed, fully treated and fully stabilised and I have assigned an Impairment Rating to that condition. I do not consider that the evidence justifies any increase in that Impairment Rating.

WERE MR SIRETT’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: s 94(1)(b)?

1. I have found that the Impairment Rating for Mr Sirett’s mental health impairment was 5 points and 10 points for his spinal impairment. This is a total of 15 points.

2. To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b).

DID MR SIRETT’S HAVE A CONTINUING INABILITY TO WORK: s 94(1)(c)(i)?

1. I have concluded that Mr Sirett’s impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period therefore it is unnecessary for me to consider whether Mr Sirett had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.

CONCLUSION

1. Mr Sirett’s claim fails. His impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period and as a result he does not qualify for DSP at the relevant time.

2. The decision under review is affirmed.

I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

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

Associate

Dated 1 August 2016

Date of hearing	1 July 2016
Applicant	(self-represented)
Advocate for the Respondent	Robert Hamilton
Solicitors for the Respondent	Department of Human Services - FOI and Litigation Team