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

SJSW and Secretary, Department of Social Services (Social services second review) [2020] AATA 3597 (9 September 2020)
Division:GENERAL DIVISION
File Number: 2019/5876
Re:SJSW
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member C. J. Furnell
Date:9 September 2020
Place:Melbourne

The Tribunal affirms the decision the subject of review.
...............[sgd].........................................................
Senior Member C. J. Furnell
Catchwords
SOCIAL SECURITY – application for disability support pension refused – whether conditions were fully diagnosed, treated and stabilised in the qualification period – whether applicant’s conditions attracted an impairment rating of at least 20 points – whether applicant had a continuing inability to work – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Pistone and Secretary, Department of Family and Community Services [2003] AATA 375
Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558
Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500
Secretary, Department of Social Services v Sziva [2019] FCA 23
Spruill and Secretary, Department of Family and Community Services [2002] AATA 8
REASONS FOR DECISION
Senior Member C. J. Furnell
9 September 2020

On 17 January 2019, the Applicant applied for a disability support pension (a DSP).[1]
[1] T31.
The rejection of that application on 8 May 2019[2] was affirmed by a Centrelink authorised review officer on 28 May 2019[3]. That decision was, in turn, affirmed on 20 August 2019 by the Tribunal’s Social Services and Child Support Division (SSCSD).[4]
[2] T42.
[3] T46.
[4] T2.
The Applicant has now applied to the General Division of the Tribunal for review of the SSCSD’s decision.
What is being reviewed is the decision, as affirmed by the SSCSD.[5]
[5] Social Security (Administration) Act 1999, s 179(2).
In so reviewing that decision, the question in issue is whether the Applicant qualifies for the DSP for which she applied.
For the reasons which follow, I am not satisfied that she does.
WHEN IS AN A PERSON ENTITLED TO A DSP?
An application for a DSP is required to be either granted or rejected.[6]
[6] Ibid, s 36.
It is required to be granted if the Applicant qualifies for the pension and the pension is payable.[7] Hence, two conditions are of relevance; qualification and payability.
[7] Ibid, s 37.
The provisions governing a person’s qualification for a DSP are found in Part 2.3 of the Social Security Act 1991 (the Act).
In particular, s 94 of the Act sets out criteria to be satisfied in order to so qualify. Those criteria include that:
·the person concerned has a physical, intellectual or psychiatric impairment;
·the person’s impairment is of 20 points or more under the “Impairment Tables”; and
·the person has a continuing inability to work (where, as here, there is no involvement in a scheme known as the ‘supported wage system’).
As for payability, the provisions governing this issue are found in the Social Security (Administration) Act 1999 (SSA).
Pursuant to the SSA, a DSP is payable on the “start day” in relation to the pension.[8]
[8] Ibid, s 41.
The start day in relation to a DSP is generally the day on which the claim for the pension is made, unless the person does not then qualify for it, in which case the start day is the first day in the 13-week period after the claim is made on which the person qualifies for the pension.[9] Hence, “…[i]t follows that ….[an applicant’s] entitlement to the DSP must be considered as at the date of his claim and in the 13 weeks thereafter, and that any change in …[the applicant’s] health after that 13 week period is irrelevant save insofar as it may cast light on the position at the relevant time.”[10]
[9] Social Security (Administration) Act 1999, s 42 and Schedule 2, cls 3(1) and 4.
[10] Secretary, Department of Social Services v Sziva [2019] FCA 23 at [26].
Accordingly, for the Applicant to be entitled to a DSP, she must have satisfied the pension qualification criteria on the date of her claim for a DSP or on a day in the period commencing on that date and ending 13 weeks thereafter (the qualifying period (QP)).
The date of the claim is 17 January 2019.[11] The period of thirteen weeks thereafter ends on 18 April 2019. Accordingly, the question in issue in this proceeding is whether the Applicant qualified for the DSP in the period 17 January to 18 April 2019.
[11] If the Applicant had contacted the Respondent about her DSP claim prior to actually making the claim, then the earlier date might have been the date on which the 13-week period commenced. There is nothing before the Tribunal, however, suggesting that she did so - see SSA, s 13.
DID THE APPLICANT HAVE AN IMPAIRMENT IN THE QP?
The Respondent concedes that the Applicant had a physical, intellectual or psychiatric impairment in the QP.
The nature of the impairments she then had, or may then have had, appears not to be in dispute. They comprise (or at least result from) osteoarthritis of the knees, back condition, breast cancer, mood disorder and anxiety, melanoma, gallbladder disorder, patent ductus arteriosus, weakness in the hands, osteopaenia and hypothyroidism.
DID THE IMPAIRMENT ATTRACT A RATING OF 20 POINTS OR MORE IN THE QP?
I am not satisfied that the Applicant’s impairment is of 20 points or more under the “Impairment Tables.”
Those tables are currently found in an instrument made under s 26 of the Act entitled “Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011” (the Tables). That instrument not only sets out certain tables but also determines rules to be complied with in applying the Tables.
Under the Tables, a rating is assigned to an impairment in an endeavour, essentially, to measure the loss of functional capacity affecting a person’s ability to work which results from a person’s medical condition.
In order for an impairment to be assigned any points, let alone 20 points, it must be capable of being assigned a rating.
In order to be so capable first, the condition causing the impairment must be permanent and second, the impairment must be more likely than not to persist for more than two years.[12]
[12] The Tables, 6(3).
Condition permanent in QP?
In order for a condition (being a medical condition)[13] to be permanent it needs to be:[14]
·fully diagnosed by an appropriately qualified medical practitioner;
·fully treated;
·fully stabilised; and
·more likely than not, in the light of available evidence, to persist for more than two years.
[13] The Tables, 3.
[14] The Tables, 6(4).
In order for a condition to be fully diagnosed, the evidence must show that the condition applied in the relevant QP and that the condition has been diagnosed by an appropriately qualified medical practitioner. It is not necessary, however, to show that such a diagnosis was made in the QP.[15]
[15] Re Eid and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 558 at [88].
In considering whether a condition is fully diagnosed and fully treated it is necessary to consider:[16]
·whether there is corroborating evidence for the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or is planned in the next two years.
[16] The Tables, 6(5).
Lastly, a condition will only be considered to have been fully stabilised if, in circumstances where the treatment for the condition that had been undertaken by the Applicant:
·was “reasonable treatment,”[17] any further reasonable treatment was unlikely to result in significant functional improvement to a level enabling the Applicant to undertake work in the next two years; or
·was not “reasonable treatment,” either significant functional improvement to a level enabling the person to undertake work in the next two years is not expected to result from the undertaking of reasonable treatment or there is a medical or compelling reason for the person not to undertake reasonable treatment.[18]
[17] A concept defined in the Tables, 6(7).
[18] The Tables, 6(6).
I turn now to consider whether those conditions as a result of which the Applicant is said to suffer impairment are permanent and, insofar as they are, the rating to be assigned to them under the Tables.
Osteoarthritis of the knees
I am not satisfied that this condition is permanent. While it was fully diagnosed in the QP it was not then fully treated or fully stabilised.
As for its diagnosis, I note:
·In April 2008, a job capacity report stated that the Applicant suffered from osteoarthritis which led to an inability to sit or stand for long periods.[19]
·In December 2016, a report of a radiological scan suggested arthritic disease in the medial compartment of the Applicant’s left knee.[20]
·In late April 2019 (after the QP), X-rays revealed moderate degenerative arthritis in medial compartment of the Applicant’s right knee and advanced osteoarthritis in the medial compartment of her left knee.[21]
·The Applicant’s general practitioner noted in a referral to an orthopaedic surgeon in July 2019 that the Applicant had suffered osteoarthritis in her knees since 2014.[22]
[19] T4.
[20] T13.
[21] T41.
[22] T53.
This material is corroborative of the Applicant suffering the condition of which she complains.
As to whether there had been treatment for that condition, I note that the Applicant had undertaken sessions of physiotherapy in the period from 2015 to 2017.[23] This, however, would appear to have ceased prior to the QP.
[23] T50 - letter of 24 June 2019 from a Ms Linnane, physiotherapist.
As for planned or continuing treatment, I note that it was only after the QP had expired that:
·X-rays of the Applicant’s knees were conducted.[24]
·The Applicant was referred to an orthopaedic surgeon.[25]
·Surgical and non-surgical treatment options were discussed with an orthopaedic surgeon (including knee replacement surgery), options which were to be revisited in a further 12 months.[26]
·Endeavours to re-engage with treatment by a physiotherapist were undertaken. In the QP, the Applicant was on a waiting list for entry into a physiotherapy program.[27] While before the QP in 2018 her general practitioner referred the Applicant to a physiotherapist for “opinion and management”[28], there is, as the Respondent contended, no evidence that the Applicant acted on that referral.
[24] Ibid.
[25] T39 - referral of 18 April 2019. See also T53 18 July 2019 letter of referral to Mr Humadi.
[26] T56 - 24 July 2019 letter of Mr Humadi.
[27] Evidence given by the Applicant in the course of the hearing.
[28] T24 - letter of 1 June 2018.
As for the fact that in the QP further physiotherapy was contemplated, I do not see that as a bar to a conclusion that the Applicant’s condition was fully treated. A cessation of all additional treatment is not a precondition to a DSP entitlement. Here, physiotherapy sessions in the past had not enabled the Applicant to address her condition. While the 2018 referral was expressed to be not only for management but also for opinion, in reality, there is nothing to suggest that re-engaging with a physiotherapist would have involved anything other than management of the Applicant’s condition, especially as the Applicant had, in the 2015 to 2017 period, already been treated by the physiotherapist to whom the referral was addressed.
As for the options the Applicant apparently discussed with an orthopaedic surgeon, in the circumstances, I do see that the failure to have considered them until after the QP precludes a conclusion that the relevant condition had been fully treated and fully stabilised in or before expiry of the QP.
It has been said that a condition could not be considered to be permanent (or to have stabilised) if it is still being treated and further surgery is contemplated.[29] While this ought be understood only in the context of the specific, proposed treatment and surgery, here remedial (as opposed to, say, investigative or experimental) knee replacement surgery within two years of the QP was clearly contemplated by the surgeon to whom the Applicant had been referred. The Applicant maintained that such surgery could not have been undertaken in that time frame because of the medication she was taking for her other conditions. I am not, however, satisfied that this is the case. It was clearly not an opinion shared by the surgeon. Moreover, the Applicant contends that she could not afford such surgery,[30] but it is clear that the option being considered by her surgeon was one that involved the procedure being undertaken through the public hospital system.
[29] See Pistone and Secretary, Department of Family and Community Services [2003] AATA 375 at [26].
[30] Email from the Applicant to the Tribunal on 25 February 2020.
Back condition
I am satisfied that this condition is permanent. It was fully diagnosed, fully treated and fully stabilised at the time of the QP and more likely than not, in the light of available evidence, to persist for more than two years.
As for its diagnosis, I note that:
·On 9 March 2013, the Applicant’s general practitioner described her history as one of “Chronic LBP-OA L3/4 for 7 yrs unable to bend down to care for her fungal nail infection”.[31] While the latter part of this comment is self-explanatory, the earlier part is, I interpret, a reference to the Applicant suffering since 2006, as a result of osteoarthritis, lower back pain (LBP) in the region of the L3/4 vertebrae. This interpretation is consistent with the Applicant’s general practitioner noting in July 2019, in a referral to an orthopaedic surgeon, that the Applicant had suffered LBP since 2005.[32]
·In a referral in June 2018, the Applicant’s general practitioner referred to her as having mild degenerative disc disease and degenerative facet joints in the lower lumbar spine.[33]
·In September 2018, X-rays of the Applicant’s cervical region revealed “marked C5/6 and C6/7 and mild to moderate C4/5 degenerative disc disease.”[34]
[31] T60.1.
[32] T53.
[33] T24.
[34] T26.
This material is corroborative of the Applicant suffering the condition of which she complains.
As to whether there had been treatment for that condition, I note that the Applicant had undertaken sessions of physiotherapy in 2013[35] and in the 2015 to 2017 period[36] (the latter sessions of treatment being also directed to the Applicant’s condition affecting her knees). This, however, would appear to have ceased prior to the QP. While before the QP in 2018 her general practitioner referred the Applicant to a physiotherapist for “opinion and management”,[37] there is, as the Respondent contended, no evidence that the Applicant acted on the referral.
[35] T55.
[36] T50 - letter of 24 June 2019 from a Ms Linnane, physiotherapist.
[37] T24 - letter of 1 June 2018 - this referral related to the Applicant’s back and knees’ conditions.
Again, however, and for the reason I expressed earlier, I do not see the fact that in the QP further physiotherapy was contemplated as being a bar to a conclusion that the Applicant’s condition was fully treated (or fully stabilised).
Indeed, I find the Applicant’s condition to have been fully treated and stabilised in the QP, noting that it was not contended that she had not engaged in, or that she was planning to (or ought reasonably to be planning to) engage in, a form of treatment in which she had not already engaged.[38]
[38] I refer here to not only physiotherapy but also to over the counter pain and anti-inflammatory medication which the Applicant was said in a job capacity assessment report submitted on 30 April 2020 to be taking.
As for the condition being likely to persist for two years, I infer this to be so given, in particular, the fact that the Applicant had, by the time of the QP, already suffered from it for around 12 to 13 years.
Having found that the Applicant’s back condition was permanent in the QP, I turn now to consider the rating to be assigned under the Tables to the impairment that results from the condition.
Before doing so, however, I should mention some general matters concerning application of the Tables.
First, under the Tables an impairment to which a rating can be assigned is not a necessary result of a diagnosed or permanent condition.[39]
[39] The Tables, 6(8), 10(5).
Second, the Tables comprise a number of individual tables. The correct one or ones to be utilised depends on the nature of the relevant impairment. As indicated earlier, an impairment is a loss of functional capacity affecting a person’s ability to work that results from a medical condition. The particular loss of function will determine the table to be applied.[40] Multiple tables can, however, be used if a particular condition causes multiple losses of function,[41] but the same impairment cannot be double counted, whether through the use of multiple tables[42] or because multiple conditions cause or contribute to the same impairment.[43]
[40] The Tables, 10(1).
[41] The Tables, 10(3).
[42] The Tables, 10(4).
[43] The Tables, 10(5)(6).
Third, self-reported symptoms are generally insufficient to justify assignment of a rating under the Tables absent corroborating evidence.[44]
[44] The Tables, 8(1).
In the case of the Applicant’s back condition, the tables to be utilised comprise Table 1 (Functions requiring Physical Exertion and Stamina) and Table 4 (concerning spinal function).
As I mentioned, the appropriate table or tables to be applied depends on the nature of the impairment or impairments that result from the relevant condition.
Here, the impairments resulting from the condition for which there is corroborating evidence have been described as:
·An inability to “bend down to care for her fungal nail infection”.[45]
·An inability to carry out heavy household tasks such as lawn mowing due to long term symptoms of fatigue (albeit that the Applicant was said to be able to perform most tasks around her home).[46]
·Limits on forward flexion and on the ability to sit for extended periods due to chronic lower back pain.[47]
·“Impacts on full functionality of activities of daily living”[48] (albeit that the making of broad conclusionary statements such as this does not assist the Tribunal in identifying the impairment rating appropriate to a particular condition).
·An inability to walk for more than 10 minutes without significant pain.[49]
·Serious difficulty in walking 400 metres, climbing stairs and standing on public transport.[50]
·Moderate difficulty in negotiating steps in and out of public transport, sitting in public transport and crossing streets and negotiating kerbs.[51]
[45] T60.1.
[46] See additional medical evidence for DSP record of 24 April 2020. Record of discussion with the Applicant’s general practitioner.
[47] Ibid.
[48] T50 - letter of 24 June 2019 from a Ms Linnane, physiotherapist.
[49] City of Whittlesea application for disabled parking permit of 9 September 2019.
[50] Medical report of 3 October 2019 in relation to mobility allowance application.
[51] Ibid.
The Applicant elaborated on her impairments in a number of emails and in evidence before the Tribunal. In this regard:
·In May 2019, the Applicant reported that she struggled climbing and descending stairs and had difficulty with day-to-day tasks such as doing up buttons,[52] difficulty with kneeling and squatting and difficulty if she sat or stood for more than an hour.[53]
·In August 2019 the Applicant reported that she had difficulty in picking up small items, in doing household chores and in getting up from chairs (without pain) and that she was unable to walk more than 10 minutes or use stairs without significant pain, unable to walk around shopping centres without resting after 10 minutes and unable to sit for over an hour without having to stretch.[54]
·In February 2020 the Applicant reported that due to chronic pain and a need to rest she struggled with everyday activities, felt exhausted after simple physical activities and did not use public transport.[55]
·At the hearing of this proceeding the Applicant reported that she was unable to walk to the local shops (noting that she did her own shopping but had to drive her car to do so), unable to use public transport and unable to bend and pick up light objects.
[52] A point reiterated by the applicant in July 2019 - T54.
[53] T45.
[54] T59.
[55] Email from Applicant to the Tribunal dated 25 February 2020.

As for both the corroborative material and the Applicant’s comments on her impairments, I note that:
·Some were generated or made after the QP. There is, however, nothing in the material before me suggestive of a dramatic deterioration in the Applicant’s condition such as to render it likely that they materially misrepresent the position that subsisted in the QP.
·Much of the loss of function evidenced by them may be attributable to the Applicant’s knee condition as opposed to her back condition.[56] As will become apparent, however, there would be no difference to the ultimate outcome of this proceeding even were I to attribute all the loss of function identified in the material and comments to the Applicant’s back condition.
[56] T56 - 24 July 2019 - letter of Mr Humadi, after referring to the Applicant’s long-standing left knee and lower back pain the orthopaedic surgeon, commented that her left knee was the main problem and was really affecting her activities of daily living.
As for the Applicant’s comments on her impairments, I do not accept that in the QP she was unable to:
·Use public transport. There is no evidence corroborating that inability. Moreover, I note that prior to the hearing the Applicant had merely stated that she did not use public transport, not that she was unable to do so.[57] Lastly, medical evidence submitted by the Applicant indicated that she would only have moderate difficulty in using public transport, as long as she was able to obtain a seat.[58]
·Bend and pick up light objects. Again, there is no evidence corroborating that inability. Moreover, I note that prior to the hearing the Applicant’s position appeared to be that she had difficulty in picking up small items, not that she was unable to do so.[59]
[57] Email from Applicant to the Tribunal dated 25 February 2020.
[58] Medical report of 3 October 2019 in relation to mobility allowance application.
[59] T59.
Given the nature of the foregoing impairments said to result from the Applicant’s back condition, I find that Tables 1 and 4 ought be utilised to assess the rating attributable to the impairments.
In terms of Table 4 (spinal function), I find that the Applicant’s back condition attracts a rating of five points. The descriptor that is most consistent with the impairments resulting from the condition is that the Applicant has some difficulty bending to knee level and straightening up again.
The Applicant contended that her impairments warranted a rating of 10 points under Table 4 on the basis that she was unable to bend forward and pick up light objects placed at knee height. As I stated earlier, however, I do not accept that she suffered from that inability in the QP.
In terms of Table 1 (Functions requiring Physical Exertion and Stamina), I find that the Applicant’s back condition attracts a rating of 10 points. The impairments previously identified are:
·Ones that may properly be characterised as ones which cause the Applicant frequently to experience symptoms such as fatigue when performing day to day activities around the home, symptoms which result in her being unable to walk far outside the home and needing to drive or get other transport to local shops or community facilities.
·Not ones which rendered the Applicant unable to use public transport, walk around a shopping centre or supermarket or perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).[60]
[60] As for the Applicant’s capacity to perform work-related tasks, I refer to a job capacity assessment report of 23 April 2019 at T40 in which it was concluded that the Applicant had a baseline work capacity of 8 to 14 hours per week in relation to light, semi-skilled, work, for example in a service industry.
The Applicant contended that her impairments warranted a rating of 20 points under Table 1 on the basis that she was unable to use public transport. As I stated earlier, however, I do not accept that she suffered from that inability in the QP.
As an aside, I note that the Applicant’s construction of Table 1 would have a rating of 20 points potentially being applicable in circumstances where, say, fatigue caused an applicant to be unable to do any one of four things specified in the table. While in this proceeding it is not necessary for me to come to a conclusion on the matter, I believe it likely that a proper construction of the table would have the rating only being applicable where the inability applies to all four things. First, as I see it, that reflects a more grammatically correct construction given that the four things identified describe a single inability, rather than there being discrete inabilities. Second, elsewhere in the Tables where a descriptor ends with the disjunctive “or” (as in table 1) and it is intended that the relevant rating apply where any one of several matters are satisfied, the expression used is “at least one of the following applies.”[61]
[61] See Tables 3, 4, 6, 8, 9 and 10.
Breast cancer
I am not satisfied that this condition is permanent. While it was fully diagnosed in the QP, it was not then fully treated or fully stabilised.
The Respondent contended that the Applicant’s breast cancer was fully diagnosed. For the reasons identified in the Respondent’s Statement of Facts and Contentions of 15 May 2020, the Respondent was right to do so. The following is an extract from that statement:
57. On 21 November 2016, a biopsy report conducted by Professor Hill indicated the presence of a carcinoma in the Applicant’s right breast (T6). That same day a pathology report identified the cells as a metastatic carcinoma (T7).
58. Dr Catherine Poliness, breast surgeon, reported on 23 November 2016 that the Applicant’s right breast had “an infiltrating carcinoma and the lymph node has cells consistent with metastatic breast cancer” (T8).
59. On 24 November 2016, a biopsy of the Applicant’s left breast revealed “small foci (1-2mm) of invasive carcinoma” (T9).
60. The report on a full bone scan, performed on 28 November 2016 to determine whether the Applicant’s cancer was in her bones, stated the clinical history was “for staging of node positive carcinoma of the breast” (T13).
61. A bilateral breast ultrasound on 12 December 2016 noted the Applicant had known cancer in both breasts (T14). A CT of the Applicant’s brain, chest, abdomen and pelvis noted the scans were “consistent with right breast cancer with metastatic lymphadenopathy in the right axilla” and identified a solid lesion in the left breast (T15).
62. Austin Hospital wrote to the Applicant on 12 January 2017 confirming that she had been put on the waiting list for a “Bilateral Ultra Sound Wire Local Excision & Right Axillary Clearance & Left Sentinel Node Biopsy +/- Left Nodal Clearance with Category 1 urgency.” (T20)
63. Dr Bala certified on 22 March 2019 that the Applicant was diagnosed with breast cancer in November 2016 and since then had been under the case of specialists for surgery, radiotherapy and chemotherapy (T38). Likewise, Dr Brendan Nolan, endocrinologist, noted on 16 July 2019 the Applicant’s medical history included breast cancer, “which was treated with lumpectomy, axillary clearance, chemotherapy, XRT, Herceptin and still continues on anastrazole” (T52).
The Respondent also contended that the Applicant’s breast cancer condition was not fully treated and stabilised.
As to that contention, the medical condition here being treated was breast cancer or, at least, the Applicant’s risk of recurrence of breast cancer. To address that condition the Applicant was, at the time of the QP (as well as at the time of the hearing of this proceeding), undergoing hormone therapy.[62] As will be seen later, the impairments said by the Applicant to result from her breast cancer condition largely flow from the alleged side effects of that therapy.
[62] T34 - letter of January 2019 of Dr Stewart, endocrinologist.
The Respondent’s contention that the Applicant’s condition was not fully treated would appear to be based on the proposition that the “management of her breast cancer through hormone therapy”[63] was subject to change at the time of the QP.
[63] Respondent’s Statement of Facts and Contentions of 15 May 2020 [64].
In this regard, the Applicant’s hormone therapy was initially delivered by Arimidex (the active ingredient apparently being anastrazole). In June 2018, the Applicant’s general practitioner noted that since taking Arimidex the Applicant’s arthritic pain had worsened.[64] That this is so is reinforced by the report of an endocrinologist in July 2019 who suggested that anastrazole causes arthralgia.[65]
[64] T60.1.
[65] T52.
In January 2019, the Applicant discussed options that did not involve the use of Arimidex with a Dr Stewart.[66] They apparently entailed changing to “letrozole” or “examestane”, or a change to “tam” given a better “MS” (which I infer is a reference to musculoskeletal) profile (albeit with reduced efficacy). The Applicant is also said to have raised with Dr Stewart the option of stopping all “ET” (which I infer is a reference to estrogen therapy), to which Dr Stewart would appear to have responded by stating that it would raise the risk of breast cancer recurrence.
[66] T33.
The result of that discussion in January 2019 appeared to be a decision to trial letrozole, with a review in “3/12.”
Hence, at the time of the QP, a new (in terms of the Applicant’s medical history) medication for delivery of hormone therapy was being trialled.
As I see it, generally, the trialling of alternative medications for delivery of a particular means or type of treatment (in this case, hormone therapy) is not suggestive of plans to deliver different treatments and, hence, would not generally be inconsistent with a finding that a condition had been fully treated.
Here, however, the relevant loss of functional capacity (or impairment) is said to result not directly from a medical condition but, indirectly, from the medication used to treat a condition. In such a case, it seems to me to be appropriate to characterise a plan to use a different medication as a plan to use a different treatment. Were it otherwise, an entitlement to a DSP might arise at a time despite there then being hopes of being able to address the impairments said to result from the condition by implementation of a plan to alter the particular medication employed. Put briefly, were it otherwise, an entitlement to a DSP might arise at a time when there were hopes that the impairments complained of would be relatively short-lived.
As such, I accept the Respondent’s contention that, at the time of the QP, the Applicant’s breast cancer condition was not fully treated.
I note, however, that even if I am wrong in this and the Applicant’s breast cancer condition ought properly be considered to have been fully treated (and, indeed, fully stabilised) at the time of the QP, no points under the Tables would be attributed to the impairments resulting from her condition additional to those relating to her back condition.
In this regard, both the Applicant and Respondent accepted that Table 1 of the Tables was the table appropriate for the rating of any impairments from the breast cancer condition.
I have attributed to the Applicant’s back condition the fatigue which I concluded attracts a rating of 10 points under Table 1. Where, as here, there are a variety of conditions resulting in fatigue, the apportionment of that fatigue amongst the conditions is rather ad hoc. The rules prescribed for applying the Tables provide that where “two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table”[67] and, in such circumstances, it would be “ inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.”[68]
[67] The Tables, 10(5).
[68] The Tables, 10(6). See also Spruill and Secretary, Department of Family and Community Services [2002] AATA 8 at [49] where the applicant could not distinguish between the effects of his respiratory and his heart conditions but his major symptom was shortness of breath, Table 1 (of the pre-1 January 2012 Tables) was used and only used once.
Hence, despite the Applicant’s urgings to the contrary, having taken the fatigue she suffered from in the QP into account in determining the appropriate points rating in relation to her back condition, I could not, in effect, double count by again taking the fatigue she suffers from in attributing points under Table 1 in relation to her breast cancer condition.
Mood disorder and anxiety
I am not satisfied that this condition is permanent. It was not fully diagnosed, fully treated or fully stabilised at the time of the QP.
While a job capacity assessment report of April 2008[69] suggested that the Applicant might have been diagnosed as suffering from anxiety and depression in March 2008, there is no evidence before the Tribunal of the diagnosis or of who made it. Even if diagnosed by the time of the QP, it certainly was not then fully treated or stabilised. In this regard, it was not until after expiry of the QP that the Applicant had her first counselling session with a psychologist (not having seen a psychiatrist or clinical psychologist).[70]
[69] T4.
[70] T43.
Melanoma
I am satisfied that this condition is permanent. It was fully diagnosed, fully treated and fully stabilised at the time of the QP. It does not, however, attract an impairment rating.
A melanoma was removed from the Applicant in March 2016.[71] Subsequent treatment for the condition involved periodic, routine, dermatological checks.[72]
[71] T5.
[72] Such as those reflected at T21 and T44.
Despite her expressed reluctance to work outside, the Applicant did not identify that she suffered any loss of function as a result of the condition and nor was any such loss apparent from the material before me.
As such, as concluded in the job capacity assessment report of April 2019,[73] no points under the Tables ought be attributed to this condition.
[73] T40.
Gallbladder disorder
I am satisfied that this condition is permanent. It was fully diagnosed, fully treated and fully stabilised at the time of the QP. It does not, however, attract an impairment rating.
The Applicant was hospitalised in April 2018 and underwent a laparascopic cholecystectomy,[74] apparently to address chronic cholecystitis and cholelithiasis.[75]
[74] T22.
[75] T23.
There is no material before me, however, on the basis of which I could be satisfied of any loss of function as a result of her gallbladder condition (or as a result of the treatment she undertook in relation to it).
As such, as concluded in the job capacity assessment report of April 2019,[76] no points under the Tables ought be attributed to this condition.
[76] T40.
Patent ductus arteriosus
I am not satisfied that this condition is permanent. While it was fully diagnosed in the QP, it was not then fully treated or fully stabilised.
In this regard, in a radiological report of December 2016[77] reference was made to there being an abnormal flow in the Applicant’s pulmonary artery consistent with there being a small patent ductus arteriosus.
[77] T15.
There is no material before me, however, on the basis of which I could be satisfied that the Applicant had, whether in or before the QP, undertaken any treatment for the condition.[78]
[78] I note that the Applicant had apparently seen a cardiologist in June 2019, after expiry of the QP, T48.
Weakness in the hands
I am not satisfied that this condition is permanent.
The Applicant did not seek to adduce any evidence concerning the condition at the hearing of this proceeding. When combined with the paucity of material before me about the condition (comprising, insofar as it exists, almost entirely uncorroborated, self-reported, symptoms),[79] I am unable to find that the condition was, in the QP, fully diagnosed, fully treated or fully stabilised.
[79]T45 - statement of May 2019. See also T59 - Applicant email of 19 August 2019
Osteopaenia
I am not satisfied that this condition is permanent. Even if fully diagnosed, it was not, in the QP, fully treated or fully stabilised.
Bone density scans in February 2017[80] and again in August 2018[81] revealed that the Applicant was osteopenic in the right femoral neck region and left hip.
[80] T17.
[81] T25.
In August 2018, it was recommended that secondary causes of accelerated bone loss be excluded and that anti-fracture therapy be considered.[82] There is no material before me suggestive of either of these things occurring.
[82] Ibid.
There is also no material before me suggestive of the Applicant having suffered any loss of function as a result of her osteopaenia.
Hypothyroidism
I am not satisfied that this condition is permanent. It was not fully diagnosed, fully treated or fully stabilised in the QP.
The result of a thyroid function test undertaken in September 2018 was said to be consistent with either primary hypothyroidism or inadequate hormone replacement therapy,[83] while a report on the day following the test characterised the result as consistent with subclinical hypothyroidism.[84]
[83] T27.
[84] T28.
A further thyroid function test undertaken in March 2019 was said to suggest slight under-replacement or poor compliance, resulting in a recommendation that the Applicant’s medication be reviewed and that a further test be undertaken six to eight weeks later.[85]
[85] T36.
The foregoing suggests that, at the time of the QP, additional testing was required in order to be confident of a diagnosis in relation to the condition. In addition, it suggests that treatment options will still then being considered.
These suggestions are reinforced when regard is had to the fact that the Applicant first consulted a specialist in relation to the condition after expiry of the QP. In this regard, presumably as a result of the March 2019 recommendation (or of the suggestion in an April 2019 job capacity assessment report that specialist review was required),[86] the Applicant was reviewed by an endocrinologist in June or July 2018.[87]
[86] T40.
[87] T54.
CONTINUING INABILITY TO WORK
I turn now to the last criterion I mentioned that needs to be satisfied for the Applicant to qualify for the DSP; she must have had a continuing inability to work in the QP.
I am not satisfied that the Applicant satisfies this criterion. She would only be considered to have satisfied it if:
·she had actively participated in a program of support; and
·the impairment she suffered as a result of those of her relevant medical conditions[88] was of itself sufficient to prevent her from doing any “work” independently of a program of support within the next two years.[89]
[88] Noting that an impairment not assigned a rating under the Impairment Tables is to be disregarded- Secretary, Department of Family and Community Services v Michael (2001) 116 FCR 500.
[89] The Act, s 94(2).
Both these requirements would need to have been satisfied for the Applicant to be considered to have a continuing inability to work. Neither of them were.
The Applicant did not actively participate in a program of support. The requirements she would need to have met to be considered to have done so are set out in in cl 7 of an instrument made for the purposes of s 94(3C) of the Act.[90] The Applicant would seem to have not participated at all in any program of support whatsoever.[91]
[90] Social Security (Active Participation for Disability Support Pension) Determination 2014.
[91] Annexure A to the Respondent’s Statement of Facts and Contentions of 15 May 2020.
The Applicant appears to have accepted that she did not meet those requirements. Her contention seemed, however, to be that she was not obliged to do so because her impairment was “severe” (noting that, in the context of such an impairment, it is not necessary to participate in a program of support).[92] I reject that contention. A severe impairment is one that is of 20 points or more under the Tables, of which 20 points or more are under a single table.[93] As is clear from what I said earlier, I do not accept that the Applicant suffered from such an impairment in the QP.
[92] The Act, ss 94(2)(aa) and 94(3B).
[93] The Act, s 94(3B).

As for the second requirement of the continuing inability to work criterion, the Applicant did not suffer an impairment which was of itself sufficient to prevent her from doing any “work” independently of a program of support within the next two years.
In this regard the concept of “work” is limited so that it only extends to work:
·that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
·that exists in Australia, even if not within the person’s locally accessible labour market.[94]
[94] The Act, s 94(5).
There is no material before me on which I can be satisfied that the Applicant’s impairment was, in the QP, of itself sufficient to prevent her from doing work of at least 15 hours per week in the two years following the QP. Indeed, to the contrary, there is material before me which suggests that she was not then so prevented. Here, I refer to a job capacity assessment undertaken in April 2019, the report of which concluded that the Applicant had a capacity, within two years and with “intervention”, to work between 15 and 22 hours per week.[95]
[95] T40.
CONCLUSION
I affirm the decision the subject of review.

I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member C. J. Furnell

.........................[sgd]...............................................
Associate
Dated: 9 September 2020

Date of hearing: 18 August 2020

Applicant: By telephone

Advocate for the Respondent: Ms Peta Heffernan

Solicitors for the Respondent: Australian Government Solicitor

[2020] AATA 3597

9 September 2020

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Date of hearing:	18 August 2020
Applicant:	By telephone
Advocate for the Respondent:	Ms Peta Heffernan
Solicitors for the Respondent:	Australian Government Solicitor