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

Slee and Secretary, Department of Social Services (Social services second review) [2016] AATA 594 (12 August 2016)

Division

GENERAL DIVISION

File Number

2015/4861

Re

Kingsley Slee

APPLICANT

And

Secretary, Department of Social Services

RESPONDENT

DECISION

Tribunal
Senior Member R W Dunne

Date 12 August 2016

Place Adelaide
The Tribunal sets aside the decision under review and in substitution decides that the applicant is eligible to receive the disability support pension from 25 March 2015.

......................[Sgd]...........................................
Senior Member R W Dunne
CATCHWORDS
SOCIAL SECURITY – disability support pension – Impairment Tables considered – whether the applicant has an impairment rating of 20 points or more under the Impairment Tables – medical report and job capacity assessment report considered – oral evidence of applicant's treating doctor – whether the applicant has a severe impairment – decision under review set aside.

LEGISLATION
Social Security Act 1991 (Cth), s 94

Social Security (Administration) Act 1999 (Cth), s 42, Schedule 2 clauses 3 and 4(1)

CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922

Re Fanning and Secretary, Department of Social Services [2014] AATA 447
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Gallacher v Secretary, Department of Social Services [2015] FCA 1123

Re Ulukut and Secretary, Department of Social Services [2014] AATA 399

SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011

Guidelines to the Rules for Applying the Impairment Tables

REASONS FOR DECISION
Senior Member R W Dunne
12 August 2016
INTRODUCTION

Kingsley Slee is the applicant in these proceedings. He lodged a claim for disability support pension (“DSP”) on 25 March 2015. DSP is a benefit payable under s 94 of the Social Security Act 1991 (“Act”).
The claim was rejected and on review by an authorised review officer (“ARO”) the decision was affirmed. On further review by the Social Services & Child Support Division of the Administrative Appeals Tribunal (“AAT1”) the ARO’s decision was again affirmed.
The applicant applied to this Tribunal for review of the decision of AAT1.
At the hearing, the applicant represented himself and the respondent was represented by Mr C Visser (from Program Litigation and Review Section, Department of Human Services). I received into evidence the T documents[1] lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.
[1] Exhibit R1.
ISSUE FOR THE TRIBUNAL
The issue for the Tribunal, in relevantly considering s 94 of the Act, is whether Mr Slee was qualified to receive DSP on the date of his claim, being 25 March 2015, or within 13 weeks thereafter, that is, by 24 June 2015 (“Relevant Period”).
In respect of the Relevant Period, the respondent accepted that the applicant satisfied subsection 94(1)(a) of the Act in relation to the following impairments:
(a)osteoarthritis affecting spine; and
(b)chronic post viral syndrome.
Further, in respect of the Relevant Period, the respondent did not accept that the applicant’s impairments attracted a total impairment rating of at least 20 points under subsection 94(1)(b) of the Act.
LEGISLATION
The criteria for the grant of DSP are set out in the provisions of s 94 of the Act, which relevantly read:
“Qualification for disability support pension
(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
(d) the person has turned 16; and
(da) in a case where the following apply:
(i)    the person is under 35 years of age or is a reviewed 2008-2011 DSP starter;
(ii)the Secretary is satisfied that the person is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(iii)if the person has one or more dependent children--the youngest dependent child is 6 years of age or over;
the person meets any participation requirements that apply to the person under section 94A; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(ea) one of the following applies:
(i)    the person is an Australian resident;
(ia)the person is absent from Australia and the Secretary has made a determination in relation to the person under subsection 1218AAA(1);
(ii)the person is absent from Australia and all the circumstances described in paragraphs 1218AA(1)(a), (b), (c), (d) and (e) exist in relation to the person.
Note 1:For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2:    For Impairment Tables see subsection 23(1) and sections 26 and 27.
Continuing inability to work
(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) ot the person is a reviewed 2008-2011 DSP starter who has 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) If:
(a)a person is receiving disability support pension; and
(b)the Secretary gives the person a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension; and
(c)the person is not a reviewed 2008-2011 DSP starter;
then paragraph (2)(aa) of this section does not apply in relation to that assessment.
Severe impairment
(3B)A person’s impairment is a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.
Example 1:A person’s impairment is of 30 points under the Impairment Tables, made up of 20 points under one Impairment Table and 10 points under another Impairment Table. The person has a severe impairment.
Example 2:A person’s impairment is of 40 points under the Impairment Tables, made up of 20 points under one Impairment Table and 20 points under another Impairment Table. The person has a severe impairment.
Example 3:A person’s impairment is of 20 points under the Impairment Tables, made up of 10 points each under 2 separate Impairment Tables. The person does not have a severe impairment.
Active participation in a program of support
(3C)A person has actively participated in a program of support if the person has satisfied the requirements specified in a legislative instrument made by the Minister for the purposes of this subsection.
(3D)The Secretary must comply with any guidelines in force under subsection (3E) in deciding whether the Secretary is satisfied as mentioned in paragraph (2)(aa).
(3E)The Minister may, by legislative instrument, make guidelines for the purposes of subsection (3D).
Doing work independently of a program of support
(4)A person is treated as doing work independently of a program of support if the Secretary is satisfied that to do the work the person:
(a) is unlikely to need a program of support; or
(b) is likely to need a program of support provided occasionally; or
(c) is likely to need a program of support that is not ongoing.
Other definitions
(5)In this section:
program of support means a program that:
(a) is designed to assist persons to prepare for, find or maintain work; and
(b) either:
(i)is funded(wholly or partly) by the Commonwealth; or
(ii)is of a type that the Secretary considers is similar to a program that is designed to assist persons to prepare for, find or maintain work and that is funded (wholly or partly) by the Commonwealth.
reviewed 2008-2011 DSP starter means a person for whom all the following conditions are met:
(a) the person made (or is taken to have made) a claim for disability support pension before 3 September 2011;
(b) a determination granting the claim took effect after 2007;
(c) on or after 1 July 2014 the person was given a notice under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
(d) when the notice was given, the person was under 35 years of age;
(e) before the notice was given, either:
(i) there was a record that the Secretary was satisfied that the person was able to do work that was for at least 8 hours per week on wages at or above the relevant minimum wage and that existed in Australia, even if not within the person’s locally accessible labour market; or
(ii) there was no record that the Secretary had considered whether the person was able to do work described in subparagraph (i);
(f) after the notice was given, the Secretary decided not to determine under section 80 of the Administration Act that the disability support pension for the person is to be cancelled;
(g) as a result of the assessment involving the notice, the Secretary is satisfied that the person:
(i) does not have a severe impairment within the meaning of subsection (3B); and
(ii) is able to do work that is for at least 8 hours per week on wages at or above the relevant minimum wage and that exists in Australia, even if not within the person’s locally accessible labour market;
(h) the person does not have a dependent child under 6 years of age.
Note 1:Section 63 of the Administration Act lets the Secretary notify a person that the person must give information to the Secretary or undergo a medical, psychiatric or psychological examination and give the Secretary a report on the examination.
Note 2:Section 80 of the Administration Act lets the Secretary determine that disability support pension paid to a person is to be cancelled if the person is not or was not qualified for the pension, or if the pension is not or was not payable to the person (which may apply because the person did not comply with the notice under section 63 of that Act).
training activity means one or more of the following activities, whether or not the activity is designed specifically for people with physical, intellectual or psychiatric impairments:
(a) education;
(b) pre-vocational training;
(c) vocational training;
(d) vocational rehabilitation;
(e) work-related training (including on-the-job training).
work means work:
(a) that is for at least 15 hours per week on wages that are at or above the relevant minimum wage; and
(b) that exists in Australia, even if not within the person's locally accessible labour market.
…”
Also relevant in these proceedings is s 42 of, and clauses 3 and 4(1) of Schedule 2 to, the Social Security (Administration) Act 1999 (“Administration Act”). Where a person makes a claim for DSP, clause 3 in Schedule 2 provides the general rule for a start date as the day on which the claim is made. Otherwise, a person’s qualification for DSP is to be considered during the ensuing 13 weeks from the date when the claim is made, in accordance with clause 4(1) in Schedule 2 to the Administration Act. Clause 4(1) reads:
“4 Start day—early claim
(1) If:
(a)a person (other than a detained person) makes a claim for a relevant social security payment; and
(b)the person is not, on the day on which the claim is made, qualified for the payment; and
(c)assuming the person does not sooner die, the person will, because of the passage of time or the occurrence of an event, become qualified for the payment within the period of 13 weeks after the day on which the claim is made; and
(d)the person becomes so qualified within that period;
the claim is taken to be made on the first day on which the person is qualified for the social security payment.
…”
As already said, the Relevant Period for assessing Mr Slee’s entitlement to DSP for the purpose of these proceedings is the 13 week period from 25 March 2015 to 24 June 2015.
SOCIAL SECURITY (TABLES FOR THE ASSESSMENT OF WORK-RELATED IMPAIRMENT FOR DISABILTIY SUPPORT PENSION) DETERMINATION 2011 (“Determination”)
The Impairment Tables were previously set out in Schedule 1B to the Act. The Determination, under s 26(1) of the Act, commenced on 1 January 2012. In the Determination, the Rules for applying the Tables relevantly read:
“6.      Applying the Tables
Assessing functional capacity
(1)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.
Applying the Tables
(2)The Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.
Note:For additional information that must be taken into account in applying the Tables see section 7.
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.
Impairment has no functional impact
(8)The presence of a diagnosed condition does not necessarily mean that there will be an impairment to which an impairment rating may be assigned.
Example: A person may be diagnosed with hypertension but with appropriate treatment the impairment resulting from this condition may not result in any functional impact.
Assessing functional impact of pain
(9)There is no Table dealing specifically with pain and 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).
7 Information that must be taken into account in applying the Tables
(1)Subject to subsection (2), in applying the Tables the following information must be taken into account:
(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.
(2)A person may be asked to demonstrate abilities described in the Tables.
8 Information that must not be taken into account in applying the Tables
(1) Symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence.
Note: Examples of the corroborating evidence that may be taken into account are set out in the Introduction of each Table in Part 3 of this Determination.
(2) Unless required under the Tables, the impact of non-medical factors when assessing a person’s impairment must not be taken into account.
Example: Unless specifically referred to by a descriptor in a Table, the following must not be taken into account in assessing an impairment: the availability of suitable work in the person’s local community; English language competence; age; gender; level of education; numeracy and literacy skills; level of work skills and experience; social or domestic situation; level of personal motivation; or religious or cultural factors.
9 Use of aids, equipment and assistive technology
A person’s impairment is to be assessed when the person is using or wearing any aids, equipment or assistive technology that the person has and usually uses.
10 Selecting the applicable Table and assessing impairments
Selection steps
(1) Table selection is to be made by applying the following steps:
(a) identify the loss of function; then
(b) refer to the Table related to the function affected; then
(c) identify the correct impairment rating.
(2) The Table specific to the impairment being rated must always be applied to that impairment unless the instructions in a Table specify otherwise.
Single condition causing multiple impairments
(3) Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.
Example: A stroke may affect different functions, thus resulting in multiple impairments which could be assessed under a number of different Tables including: upper and lower limb function (Tables 2 and 3); brain function (Table 7); communication function (Table 8); and visual function (Table 12).
(4) When using more than one Table to assess multiple impairments resulting from a single condition, impairment ratings for the same impairment must not be assigned under more than one Table.
Multiple conditions causing a common impairment
(5) 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.
(6) Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
11 Assigning an impairment rating
(1) In assigning an impairment rating:
(a) an impairment rating can only be assigned in accordance with the rating points in each Table; and
(b) a rating cannot be assigned between consecutive impairment ratings; and
Example: A rating of 15 cannot be assigned between 10 and 20.
(c) if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied; and
(d) a rating cannot be assigned in excess of the maximum rating specified in each Table.
(2) In deciding whether an impairment has no, mild, moderate, severe or extreme functional impact upon a person, the relative descriptors for each impairment rating in a Table should be compared to determine which impairment rating is to be applied.
Descriptors involving performing activities
(3) When determining whether a descriptor applies that involves a person performing an activity, the descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.
Example: If, under Table 2, a person is being assessed as to whether they can unscrew a lid of a soft drink bottle, the relevant impairment rating can only be assigned where the person is generally able to do that activity whenever they attempt it.
Episodic and fluctuating conditions
(4) 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.
No impairment resulting from a condition
(5) To avoid doubt, 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.”
BACKGROUND

The material facts in these proceedings are not in dispute and are largely extracted from the statement of facts and contentions of the respondent.
As part of his claim for DSP the applicant also lodged a “Medical Report – disability support pension” form dated 24 March 2015.[2] This was completed by his treating practitioner, Dr R Gadd. In the medical report form Dr Gadd records that the applicant had consulted Professor David Shaw concerning the chronic post viral syndrome.[3]
[2] Exhibit R1, T15 p 211-221.
[3] Exhibit R1, T15 p 217.
On 5 May 2015, a Job Capacity Assessment was conducted to assist in the determination of the applicant’s qualification for DSP.[4] The assessor found that the applicant suffered from a spinal disorder, a chronic post viral syndrome, a gastroenterological condition and a right little finger amputation. Of all these conditions, only the amputation was considered by the assessor to be fully diagnosed, fully treated and fully stabilised and thus capable of having an impairment rating assigned to it under the Impairment Tables. The assessor assigned an impairment rating of zero points for this condition under Table 2.
[4] Exhibit R1, T16 p 222-229.
The assessor said in relation to the spinal disorder that (1) there is no verified evidence of any involvement with a specialist to advise on appropriate treatment options; (2) there is no verified evidence of involvement with any physical therapy; and (3) there is no evidence of involvement with any pain management clinics/specialists. The assessor also said that the applicant may benefit from a multi-disciplinary approach to pain management with advice on pain perceptions, strategic use of appropriate medications, bench marking and pacing techniques, and appropriate physical therapy and activity levels.
In his medical report, Dr Gadd reported that the applicant is unable to perform any overhead activities and that he is unable to move his head without moving his trunk.
The respondent submitted that the applicant’s qualification for DSP is to be solely determined during the Relevant Period and that the decisions of the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs[5] and Re Fanning and Secretary, Department of Social Services[6] were relevant, as were the decisions of the Federal Court in Harris v Secretary, Department of Employment and Workplace Relations[7] and Gallacher v Secretary, Department of Social Services[8].
[5] [2012] AATA 922.
[6] [2014] AATA 447.
[7] [2007] FCA 404.
[8] [2015] FCA 1123.
IMPAIRMENT TABLES
The Impairment Tables are function-based rather than diagnosis-based. They are designed to assign ratings to determine the level of functional impact of impairments and not to assess conditions.
In ReUlukut and Secretary, Department of Social Services,[9] the Tribunal (Senior Member Isenberg) referred to the Rules for the application of the Impairment Tables as follows at [5]:
“… The Tables are function-based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impairment. Impairment is defined to mean a loss of functional capacity affecting a person’s ability to work that results from the person’s condition: s 3 of the Determination. A claimant’s impairment is to 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: s 6(1) of the Determination.
The Tables may only be applied after the person’s medical history has been considered. An impairment can only be allocated if a condition is permanent, i.e. fully diagnosed, treated and stabilised, and likely to persist for more than two years: s 6(2)-6(4) of the Determination. …”
[9] [2014] AATA 399.
In determining whether a condition has been fully diagnosed and fully treated, the following must be considered:
·whether there is corroborating evidence of the condition;
·what treatment or rehabilitation has occurred in relation to the condition; and
·whether treatment is continuing or is planned in the next 2 years (subsection 6(5) of the Determination).
A condition is fully stabilised if:
·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
·the person has not undertaken reasonable treatment for the condition and either:
(a) 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
(b) there is a medical or other compelling reason for the person not to undertake reasonable treatment.
The existence of a diagnosed condition will not necessarily result in a rating being assigned under the Tables. Where an impairment has no functional impact, no rating will be assigned (subsection 6(8) of the Rules).
Section 8 of the Impairment Tables sets out information that is not to be taken into account. In particular, self-reported symptoms reported by a person in relation to their own condition can only be taken into account where there is corroborating medical evidence.
EVIDENCE
Evidence of Applicant
It was the applicant’s evidence that he had been involved in a motorbike accident in 2000 and he said his hips “don’t sit square”. In 2011, a friend had asked him to help change a tyre on a car, but when the tyre lever slipped the tip of his right little finger was amputated. When the amputated tip could not be reattached, he had to have an operation to trim the stump, and later operations were also necessary. He said he had not been undertaking any physical therapies and had not seen any osteoarthritis specialists. He had seen Professor Shaw at the Royal Adelaide Hospital in relation to the CMV (CMV – cytomegalovirus) infection.
When cross-examined by Mr Visser, the applicant said that he no longer consumed alcohol, that he could wash his hair in the bath and that he did not shower unless he had to. At his home, there were no high cupboards because they were all shoulder height and he could lean forward to reach them. He was constantly in pain in his shoulders, his hips and his neck. In his kitchen he had to stand because all the shelves were in the middle of the room. When he was asked what caused pain in his spine, the applicant said it was fibromyalgia. He said he walked with his dog two times each day for 10-15 minutes. He could not wear lace-up shoes because he could not bend over to tie the laces. His shirts were not buttoned and were all pull ons.
Evidence of Dr Gadd
For the applicant, Dr Gadd gave evidence by telephone. When he was referred to his medical report, he noted that the applicant’s “Condition 1” was osteoarthritis affecting spine. He then referred to page 21 concerning Table 4 of the Impairment Tables in the Determination.[10] In the descriptors for 20 points under Table 4 (severe functional impact on activities involving spinal function) the person is unable to:
(a)perform any overhead activities; or
(b)turn their head or bend their neck without moving their trunk.
[10] Exhibit R1, T5 p 49.
When asked about the other descriptors, Dr Gadd said that the applicant satisfied the first two and as they were alternatives he only needed to satisfy one. When he was told that the job capacity assessor had not assigned any points under Table 4, Dr Gadd questioned how the assessor could ignore his own tables for impairment. He then said he wanted to know where the assessor had got his medical degree from. He said his qualification was because he was the applicant’s treating doctor. He reiterated that he rated the applicant’s impairment from what he saw of him, from radiology examination and from clinical assessment. He said that on that item alone, he believed the applicant qualified for 20 points for osteoarthritis affecting the spine.
Dr Gadd then referred to item (i) on page 9 of his medical report (impact on ability to function),[11] where he noted that the applicant was
“unable to perform light day to day household actions eg folding and putting away laundry or light gardening and has difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours”.
When referred to Table 1 (Functions requiring Physical Exertion and Stamina), he said the applicant satisfied (1)(a)(ii) and (b)(ii) in the 10 point descriptor for moderate functional impact on activities requiring physical exertion or stamina in that Table. In doing so, he said the applicant gained another 10 points under Table 1 for the post-viral condition, totalling overall 30 impairment points. When questioned further, Dr Gadd was unable to comment on any instructions about the applicant’s conditions once he had reached 20 points.
[11] Exhibit R1, T5 p 219.
Mr Visser cross-examined Dr Gadd about radiological investigations. When Mr Visser suggested that the radiological examination did not showing anything particularly bad, Dr Gadd said that when assessing a patient’s physical disabilities, radiology only gives part of the picture and the other part is the clinical assessment of the patient’s range of movement. He said that unfortunately radiology is not absolutely specific. At its best, radiology gives an indication as to the structure, but it does not say very much at all about the function. When asked whether the applicant had fibromyalgia, Dr Gadd said fibromyalgia would be more consistent with the applicant’s post-viral type syndrome and there is no test that can either prove or disprove it, as it is based on clinical assessment. He said that he did not know whether the applicant had been seen by a physiotherapist, but it would make no difference anyway. He also said that the applicant had “difficulty” moving his head, without moving his whole trunk. And in this, difficulty meant pain. Mr Visser asked why, in the medical certificates he had provided to the respondent, Dr Gadd had not written that the applicant was suffering from osteoarthritis of the spine. Dr Gadd said that, in the certificate on 12 May 2015,[12] the viral arthropathy, the CMV and the amputated little finger were the major factors why the applicant was unable to perform work. The viral arthropathy and the amputated right little finger were affecting him more than a severe impairment of his spine. Dr Gadd also said that he was writing medical certificates as to why the applicant was unable to work, not necessarily providing a complete report on his disabilities. In relation to the CMV condition, he sent the applicant to Professor Shaw in relation to his history of CMV. So when the Professor says the current symptoms do not fit that of CMV, he is talking about acute CMV.[13]
[12] Exhibit R1, T22 p 249.
[13] Exhibit R1, T22 p 241.
I referred Dr Gadd to Table 4 and his opinion that the osteoarthritis was severe. That the respondent had done a review of the applicant’s claim, and that the ARO had said that the condition was permanent, but it could not be considered to be fully diagnosed, treated and stabilised. In responding to what I put to him, Dr Gadd said he could not understand how the respondent could say that, given that (1) he has radiological evidence of arthropathy, and (2) his clinical assessment is to address the requirement for functional impact on activities. Table 4 does not say anatomical impact, it says functional impact. He said that when he mentioned clinical assessment, this implies that he has actually assessed the individual’s range of movement and their ability to perform the activities that are described in the Impairment Tables. And that assessment would have been made at or around the time of his medical report dated 24 March 2015.
CONSIDERATION
Was the applicant qualified to receive DSP on the date of his claim, being 25 March 2015, or within 13 weeks thereafter, that is, by 24 June 2015?
The Impairment Tables provide the mechanism to assign ratings for the level of functional impact of an impairment. As has been said in paragraphs 16-17 of these reasons, the Impairment Tables are based on function rather than diagnosis and they describe functional activities, abilities, symptoms and limitations. Subsection 6(3) of the Determination states that an impairment rating can only be assigned to an impairment if the person’s condition causing that impairment is permanent and that the impairment results from a condition that is more likely than not to persist for more than 2 years. The Impairment Tables provide that a condition is permanent if it has been fully diagnosed, fully treated and fully stabilised. The functional capacity which is rated under the Impairment Tables concerns the question of an individual’s capacity to work.
Table 4 of the Impairment Tables concerns spinal function. The introduction to Table 4 states that is should 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 to Table 4 also states that the diagnosis of the condition must be made by an appropriately qualified medical practitioner. The corroborating evidence of the person’s impairment may include a report from the person’s treating doctor and may include:
“…a report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (eg spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy …)”
For a severe functional impact on activities involving spinal function, 20 impairment points are allocated. The 20 point descriptors in Table 4 include:
1The person is unable to:
(a)perform any overhead activities; or
(b)turn their head, or bend their neck, without moving their trunk;”
In giving his oral evidence by telephone, Dr Gadd was satisfied that the applicant qualified for two of the four descriptor criteria for a 20 point severe functional impact. He pointed out that the criteria are not “and”, they are “or”. In other words, the applicant only needs to satisfy one of those criteria. When he was told that the job capacity assessor did not assign any points in Table 4, Dr Gadd said he could not understand how the assessor could ignore the Impairment Tables that were provided in the Determination. He said he wanted to know where the assessor obtained his medical degree. He said he was satisfied himself about the Tables “because I’m his treating doctor”.
The respondent asserted that the job capacity assessor, the ARO and AAT1 all agreed that the only fully diagnosed, fully treated and fully stabilised condition that the applicant suffered from was his right little finger amputation, and this was rated at zero points. The respondent contended that this was the correct assessment of the applicant’s impairments. In my view, this contention is not supportable on all the evidence.
In relation to the applicant’s condition of chronic post viral syndrome, in item (i) on page 9 of his medical report (under impact on ability to function), Dr Gadd had written that the applicant was:
“Unable to perform light day to day household activities eg folding or putting away laundry or light gardening and has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationery nature for a continuous shift of at least 3 hours.”
Although Dr Gadd was referring to Table 4, it became apparent to me that it was his intention to refer to the 10 point descriptor in Table 1, and the criteria under (1)(a)(ii) and (b)(ii).
In his closing submissions for the respondent, Mr Visser contended that Professor Shaw in his May 2012 report found that there was no evidence of CMV infection. Professor Shaw said the “CMV serology is notoriously difficult to interpret”. As his treating doctor, Dr Gadd said that when Professor Shaw said the applicant’s current symptoms do not fit that of cytomegalovirus infection, he is talking about acute CMV. Dr Gadd also said that, in relation to radiological examination, when assessing a patient’s physical disabilities, radiology only gives part of the picture and the other part is the clinical assessment of the patient’s range of movement. Unfortunately, radiology is not absolutely specific.
SUMMARY
To summarise, based on the extensive oral evidence of Dr Gadd as the applicant’s treating doctor (since July 2003), I am satisfied that the applicant had a combined impairment rating of 30 points under Table 4 (20) and Table 1 (10) of the Impairment Tables during the Relevant Period. As such, the criterion in s 94(1)(b) of the Act is satisfied. Mr Slee has a severe impairment within the meaning of s 94(3B) of the Act because of an impairment rating of 20 points under a single impairment table.
In view of the finding that Mr Slee has a severe impairment, there is no need for him to have actively engaged in a program of support within the meaning of s 94(3C) of the Act.
DECISION
For the reasons set out above, the Tribunal sets aside the decision under review and in substitution decides that the applicant is eligible to receive the disability support pension from 25 March 2015.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member R W Dunne
...................[Sgd]....................................
Administrative Assistant
Dated 12 August 2016

Date(s) of hearing 7 June 2016

Applicant In person

Advocate for the Respondent Mr C Visser

Solicitors for the Respondent Dept of Human Services

[2016] AATA 594

12 August 2016

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Administrative Law

Statutory Interpretation

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Appeal

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Statutory Construction

Standing

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Division	GENERAL DIVISION
File Number	2015/4861
Re	Kingsley Slee
APPLICANT
And	Secretary, Department of Social Services
RESPONDENT

Tribunal	Senior Member R W Dunne
Date	12 August 2016
Place	Adelaide

Date(s) of hearing	7 June 2016
Applicant	In person
Advocate for the Respondent	Mr C Visser
Solicitors for the Respondent	Dept of Human Services