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

Smith and Secretary, Department of Social Services (Social services second review) [2018] AATA 397 (6 March 2018)
Division:GENERAL DIVISION
File Number: 2017/0051
Re:Ian Smith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:6 March 2018
Place:Brisbane

The Tribunal affirms the decision under review.
........................[Sgd]................................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
CASES
Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342
Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404
Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534
Gallacher v Secretary, Department of Social Services [2015] FCA 1123.
REASONS FOR DECISION
Member D K Grigg
6 March 2018
INTRODUCTION AND CLAIMS HISTORY

Mr Smith was a recipient of the Disability Support Pension (“DSP”) from 19 August 2011.[1] On 6 May 2016 the Department of Human Services (“Centrelink”) issued Mr Smith with a medical report form to be completed for the purposes of reviewing his eligibility for DSP.[2]
[1] Exhibit 1, T Documents, T36, page 163, Centrelink record.
[2] Exhibit 1, T Documents, T28, pages 112-124, DSP Medical Report form issued 6 May 2016.
The Medical Reports completed by Mr Smith and Dr Punya Gamaralalage, General Practitioner, as part of Centrelink’s review, listed Mr Smith’s medical conditions as:[3]
·Lumbar spondylosis; and
·Arthritis.
[3] Exhibit 1, T Documents, T28, pages 113 and 118-122, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.
Dr Gamaralalage also reported that Mr Smith was obese and had diabetes, but that these conditions were generally well managed and caused minimal or limited impact on his ability to function.[4]
[4] Exhibit 1, T Documents, T28, page 123, DSP Medical Report form completed by Mr Smith and Dr Gamaralalage
dated 10 May 2016.
Mr Smith reported that, as a result of his conditions, he cannot:
(a)do most things for more than 1.5 hours due to the “unbearable” pain in his back, shoulder and hips; and
(b)sit or stand for too long.[5]
[5] Exhibit 1, T Documents, T28, page 114, DSP Medical Report form completed by Mr Smith and Dr Gamaralalage
dated 10 May 2016.
Following the medical review, Centrelink cancelled Mr Smith’s DSP on 10 June 2016.[6]
[6] Exhibit 1, T Documents, T29, pages 125 – 126, Letter from Centrelink to Mr Smith dated 10 June 2016.
Mr Smith sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Smith’s medical conditions did not attract 20 points or more under the Impairment Tables.[7]
[7] Exhibit 1, T Documents, T32, pages 137 – 142, Decision of ARO and Notes dated 3 August 2016.
Mr Smith then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Smith’s claim and affirmed the ARO’s decision on 24 November 2016.[8]
[8]Exhibit 1, T Documents, T3, pages 5 – 11, SSCSD’s Decision and Reasons for Decision dated 24 November 2016.
Mr Smith has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T2, pages 3 – 4, Mr Smith’s Application for Review dated 27 December 2016.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (“the Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Smith must have a physical, intellectual or psychiatric impairment;
(b)Mr Smith’s impairment/s 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”);[10] and
(c)Mr Smith must have a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”), the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of subsection 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[11]
[11] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Smith must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 10 June 2016 (“Qualification Date”).[12]
[12] Exhibit 1, T Documents, T29, pages 125-126, Letter from Centrelink to Mr Smith dated 10 June 2016.
It is important to keep in mind that medical evidence concerning the functional impact of Mr Smith’s impairments after the Qualification Date can be considered if it “cast[s] light on” the functional impact of the impairment/s as at the Qualification Date.[13]
DID MR SMITH HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[13]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?
The Determination defines “[I]mpairment” 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”.[14]
Mr Smith’s Medical Conditions
[14] Determination, s 3.
Spinal Conditions
In June 2010, a CT scan of Mr Smith’s lumbar spine indicated that he had multilevel degenerative changes which were particularly severe at L5/S1.[15]
[15] Exhibit 1, T Documents, T5, page 43, CT report of Dr Doyle dated 29 June 2010.
In January 2011 Mr Smith was diagnosed as having lumbar spondylosis, which is part of the disease process of osteoarthritis. A report from Dr Vern Madden, General Practitioner, indicates that lumbar spondylosis causes disc degeneration, with Mr Smith’s first episode occurring in approximately 2008.[16]
[16] Exhibit 1, T Documents, T9, pages 55 – 56, Report of Dr Madden dated 24 January 2011.
Dr Madden and Dr Leo Zeller, Orthopaedic Surgeon, reported in July 2011 that Mr Smith’s pain associated with his lumbar spondylosis, which is variable from day to day, was behaving in a manner typical of the condition and was unlikely to significantly improve in the foreseeable future.[17]
[17] Exhibit 1, T Documents, T19, pages 86 – 87, Report of Dr Madden dated 14 July 2011; T 20, pages 88 – 89,
Report of Dr Zeller dated 14 July 2011.
A further CT scan of Mr Smith’s lumbosacral spine was taken in December 2012 and indicated spondylotic changes at L5/S1 level, bilateral foraminal stenosis at L5/S1 without convincing evidence of significant foraminal nerve root compression and no significant disc protrusion or compromise of the spinal canal.[18]
[18] Exhibit 1, T Documents, T24, pages 107 – 108, CT report of Dr Archibold dated 10 December 2012.
Dr Gamaralalage reported in May 2016 that:[19]
(a)Mr Smith was treating his lumbar spine condition with physiotherapy, Panadeine Forte and Tramadol and that treatment would need to continue;
(b)Mr Smith had back pain when bending or standing longer than one hour and mild to moderate effects from his analgesics;
(c)Mr Smith’s spinal condition has impacted on his ability to walk, bend, stand more than one hour and lift or carry more than 5 kg; and
(d)Mr Smith’s spinal condition was a permanent condition and would remain unchanged within the next two years.
[19] Exhibit 1, T Documents, T28, pages 118-120, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.
In June 2016 Dr Madden confirmed that lumbar disc degeneration does not get better and that generally the prognosis is for gradually increasing symptoms over time which he says is what happened to Mr Smith. Dr Madden reports that:[20]
(a)there had been a significant decrease in the range of motion in his thoracolumbar spine to about 50% of normal range and that it was quite difficult for Mr Smith to bend forward to pick up a light object placed at knee height; and
(b)Mr Smith can do light work around the house, such as dishes and occasional sweeping or vacuuming, but heavier work such as gardening is beyond his abilities.
[20] Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
Dr Gamaralalage reported in August 2016 that Mr Smith’s Spinal Impairment was stabilised.[21]
[21] Exhibit 1, T Documents, T34, page 160, Medical certificate of Dr Gamaralalage dated 23 August 2016.
Dr Gamaralalage reported in November 2016 that Mr Smith’s Spinal Impairment was causing a “severe functional impact” and that Mr Smith cannot:[22]
(a)perform overhead activities;
(b)bend forward to pick up a light object from a desk or table; and
(c)remain seated for more than 15 minutes.
[22] Exhibit 1, T Documents, T35, pages 161-162, Report of Dr Gamaralalage dated 7 November 2016.
A further x-ray of Mr Smith’s pelvis, hips and lumbosacral spine in February 2017 indicated:[23]
(a)sacroilitis (inflammation of both sacroiliac joints);
(b)lumbar spondylosis most marked at the L5/S1 level where there is a narrowed degenerative disc;
(c)left lateral osteophytes compressing the exiting left L5 nerve root in the neural exit canal; and
(d)minor central canal narrowing at the L4/5 level.
[23] Exhibit 5, X-Ray Report dated 3 February 2017.
Dr Gamaralalage reported in February 2017 that Mr Smith’s Spinal Impairment was stabilised but can get worse and prolonged sitting and standing made his back pain worse.[24]
[24] Exhibit 4, Medical certificate of Dr Gamaralalage dated 3 February 2017.
Dr Gamaralalage reported in March 2017 that Mr Smith’s Spinal Impairment was causing a moderate functional impact and that Mr Smith:[25]
(a)is able to sit in a car for at least 30 minutes;
(b)is unable to sustain overhead activities;
(c)has difficulty moving his head to look in all directions; and
(d)needs assistance to get up out of a chair.
[25] Exhibit 6, Report of Dr Gamaralalage dated 15 March 2017.
In May 2017 Dr Gamaralalage answered a questionnaire regarding Mr Smith’s Spinal Impairment as at June 2016. Dr Gamaralalage reported that as at June 2016 Mr Smith:[26]
(a)always had pain while undertaking overhead activities and it takes between 2 to 3 days for him to recover;
(b)could not do repetitive activities;
(c)could not turn his head without moving his trunk due to severe pain and stiffness;
(d)could bend forward to pick up a light object from a desk or table but with significant pain and could only do so once in the same day. The pain from doing this required strong analgesia and took him at least 2 days to recover; and
(e)could remain seated with pain but after 30 minutes he had to stand up.
[26] Exhibit 7, Report of Dr Gamaralalage dated 24 May 2017.
Shoulder
In February 2014 an x-ray and ultrasound of Mr Smith’s right shoulder indicated that he had:
·“moderately advanced osteoarthritic changes at the glenohumeral joint”;[27]and
·“limited movement. Bursal thickening is present… degenerative change at the acromioclavicular joint”[28].
[27] Exhibit 1, T Documents, T25, page 109, X-ray report dated 27 February 2014.
[28] Exhibit 1, T Documents, T26, page 110, Ultrasound report dated 28 February 2014.
In October 2015 Ms Jacqueline Scott, Physiotherapist, confirmed that she had been treating Mr Smith since 2010 for various injuries and more recently for his degenerative arthritis, which greatly reduced his right shoulder movement. Ms Scott notes that Mr Smith was working hard to reduce his weight, but that he was very limited in his exercise capability because of his degenerative lumbar spine changes.[29]
[29] Exhibit 1, T Documents, T27, page 111, Report of Ms Scott dated 28 October 2015.
Dr Gamaralalage reported in May 2016 that:[30]
(a)Mr Smith had treated his shoulder arthritis with steroid injections, physiotherapy and analgesics and that the future planned treatment was further physiotherapy and analgesics;
(b)Mr Smith had pain while resting and pain with movements of his shoulder;
(c)Mr Smith’s shoulder movements were restricted and it was difficult to do a full range of movements;
(d)Mr Smith had difficulty lifting and carrying heavy objects due to the pain; and
(e)Mr Smith’s shoulder condition is likely to remain unchanged in the next two years.
[30] Exhibit 1, T Documents, T28, pages 121-122, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.
Dr Madden reported in June 2016 that because of Mr Smith’s osteoarthritis in the shoulders, he has difficulty reaching above shoulder height and that Mr Smith told him that he is not able to hang washing out unless the line has been lowered to shoulder height. Dr Madden reports that this is entirely in keeping with the examination he performed, which shows his flexion and abduction were both limited to about 100 degrees, meaning that he can only access to shoulder height and would have difficulty reaching up to pick up objects.[31]
[31] Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
Dr Gamaralalage reported in August 2016 that Mr Smith’s shoulder condition was stabilised.[32]
[32] Exhibit 1, T Documents, T34, page 160, Medical certificate completed by Dr Gamaralalage dated 23 August
2016.
Dr Gamaralalage reported in November 2016 that Mr Smith’s shoulder condition is causing a moderate functional impact and that Mr Smith:[33]
(a)cannot pick up a 1 litre carton full of liquid from the ground;
(b)cannot tie shoe laces due to back pain;
(c)use a keyboard for more than 10 minutes due to pain in the wrists and hands;
(d)can hold a pencil or pen and do up buttons; and
(e)can unscrew a lid on a soft drink bottle.
[33] Exhibit 1, T Documents, T35, pages 161-162, Report of Dr Gamaralalage dated 7 November 2016.
A further x-ray of Mr Smith’s shoulders in February 2017 indicated degenerative changes in the acromioclavicular joints.[34]
[34] Exhibit 5, X-Ray Report dated 3 February 2017.
Dr Gamaralalage reported in February 2017 that Mr Smith’s shoulder condition was stabilised but can get worse and heavy lifting made his shoulder pain worse.[35]
[35] Exhibit 4, Medical certificate of Dr Gamaralalage dated 3 February 2017.
Dr Gamaralalage reported in March 2017 that Mr Smith’s shoulder condition is causing a moderate functional impact and that Mr Smith has difficulty:[36]
(a)picking up a 1 litre carton full of liquid;
(b)picking up a light but bulky object requiring the use of 2 hands together;
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces; and
(e)unscrewing a lid on a soft drink bottle.
[36] Exhibit 6, Report of Dr Gamaralalage dated 15 March 2017.
Obesity
Dr Gamaralalage reported in May 2016 that Mr Smith was obese but that the condition was generally well managed and caused minimal or limited impact on Mr Smith’s ability to function.[37]
[37] Exhibit 1, T Documents, T28, page 123, DSP Medical Report form completed by Mr Smith and Dr Gamaralalage
dated 10 May 2016.
Dr Madden reported in June 2016 that Mr Smith was categorised as morbidly obese and that it has affected his well-being. Dr Madden reported that he noticed Mr Smith was very fatigued during the interview and that this prevented him from doing physically active tasks and that Mr Smith reported an example of needing to use a handrail to pull himself upstairs.[38]
[38] Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
Dr Gamaralalage reported in August 2016 that Mr Smith’s obesity condition was stabilised.[39]
[39] Exhibit 1, T Documents, T34, page 160, Medical certificate of Dr Gamaralalage dated 23 August 2016.
Conclusion on Impairments
The Secretary accepts that Mr Smith suffered from impairment[s] for the purposes of section 94(1)(a) at the Qualification Date.[40]
[40] See Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 12 May 2017, para 5.1.
Given the medical evidence, the Tribunal finds that Mr Smith suffered from a Spinal Impairment and Shoulder Impairment for the purposes of section 94(1)(a) of the Act at the Qualification Date.
Whilst the Tribunal acknowledges that Mr Smith also suffers from diabetes, there is limited medical evidence in relation to this condition. There is no corroborating evidence regarding whether or not the condition was fully treated or fully stabilised as at the Qualification Date. The Tribunal also notes that Dr Madden reported in June 2016 that Mr Smith’s diabetes was not causing any restrictions on his ability to function and was well controlled.[41] Therefore, this condition cannot be considered in relation to this application. Mr Smith accepted this at the hearing.
[41] Exhibit 1, T Documents, T31, pages 135-136, Medical report of Dr Madden, dated 13 June 2016.
The Tribunal also acknowledges that Mr Smith is obese, however, there is limited medical evidence in relation to this condition. There is no corroborating evidence regarding whether or not the condition was fully treated as at the Qualification Date. There is also contradictory evidence, in that Dr Gamaralalage reports that Mr Smith’s obesity is well managed, stable, and caused minimal or limited impact on his ability to function, yet Dr Madden reports it was affecting his well-being. Given the lack of relevant information, this condition cannot be considered in relation to this application. Mr Smith accepted this at the hearing.
DO MR SMITH’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[42] They are function based[43] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[44]
[42] Determination, s 4(2) and 5(2)(a).
[43] Determination, s 5(2)(b) and (c).
[44] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Smith’s impairments if:[45]
(a)Mr Smith’s conditions causing the impairments are permanent; and
(b)the impairments that result from the conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[45] Determination, see s 6(3).
Mr Smith’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[46]
(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.
[46] Determination, see s 6(4).

In determining whether a condition has been “fully diagnosed”[47] by an appropriately qualified medical practitioner and whether it has been “fully treated”[48] the following must be considered:[49]
(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.
[47] For the purposes of s 6(4)(a) of the Determination.
[48] For the purposes of ss 6(4)(a) and (b) of the Determination.
[49] Determination, see s 6(5).
A condition is “fully stabilised”[50] if:[51]
(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;[52] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[50] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[51] Determination, see s 6(6).
[52] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant 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.
Before applying the Tables, the Tribunal must first consider Mr Smith’s medical history, in relation to the conditions causing the Impairments.[53]
SPINAL IMPAIRMENT
[53] Determination, see s 6(2).
Is Mr Smith’s Spinal Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Smith’s Spinal Impairment was permanent at the Qualification Date.[54]
[54] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 12 May 2017, para 6.1(a).
The medical evidence before the Tribunal supports a finding that Mr Smith’s Spinal Impairment is permanent for the purposes of the Act. There is certainly no evidence which suggests that Mr Smith has not undertaken recommended, appropriate or reasonable treatment. As a result, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Smith’s Impairment has to be assessed against the descriptors[55], (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).[56]
[55] Determination, see ss 3 and 5(3).
[56] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
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.[57]
[57] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[58]
(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.
[58] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[59]
(a)symptoms reported by Mr Smith in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Smith’s local community.
[59] Determination, see s 8.
Which Tables are appropriate are determined by:[60]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct Impairment Rating.
[60] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[61]
[61] Determination, see s 10(3).
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.[62]
[62] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[63]
[63] Determination, see s 11(3).
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.[64]
[64] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·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.
To obtain a five-point rating the corroborating evidence would need to show that
Mr Smith has some difficulty in:
(i)activities over head height (e.g. activities requiring [him] to look upwards); or
(ii)bending to knee level and straightening up again without difficulty; or
(iii)turning [his] trunk or moving [his] head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that

Mr Smith:
(1)…is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[he] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[he] has difficulty moving [his] head to look in all directions (e.g. turning [his] head to look over [his] shoulder); or
(c)[he] is unable to bend forward to pick up a light object placed at knee height; or
(d)[he] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20-point rating the corroborating evidence would need to show that

Mr Smith:
(1)…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.
Evidence of impact on function
The JCA reported in June 2016 that:[65]
[65] Exhibit 1, T Documents, T30, pages 127-134, JCA report dated 10 June 2016.
·Mr Smith was observed to:
ostand once (after 25 minutes) during a 40 minute appointment;
owalk at a moderate pace without a limp; and
orequire the support of a desk to rise to a standing position.
·Mr Smith said:
ohe walks 30-40 minutes everyday;
olives alone and is able to perform all daily living activities;
ocan use a chainsaw to cut wood up to 30 minutes;
ocan use a ride-on mower for 45 minutes;
ocan twist his trunk left to right with pain;
ocan drive a car;
ohas difficulty bending to put on his shoes; and
ohe is an approved carer for a neighbour who has a physical disability and provides daily support of between 3 to 5 hours per day, 5 days a week including: personal grooming, helping him transfer to his scooter, dressing and taking him to appointments and occasional shopping assistance.
The corroborating medical evidence available around the Qualification Date indicates that:
(a)Mr Smith had back pain when bending or standing for longer than one hour; [66]
(b)Mr Smith’s spinal condition has impacted on his ability to walk, bend, stand for more than one hour and lift or carry more than 5 kg; [67]
(c)there had been a significant decrease in the range of motion in his thoracolumbar spine to about 50% of normal range and it was quite difficult for Mr Smith to bend forward to pick up a light object placed at knee height;[68] and
(d)Mr Smith can do light house work such as dishes and occasional sweeping or vacuuming, but heavier work such as gardening is beyond his abilities.[69]
[66]         Exhibit 1, T Documents, T28, pages 118-120, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.
[67]         Exhibit 1, T Documents, T28, pages 118-120, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.
[68]         Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
[69]         Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
The JCA concluded that an appropriate Impairment Rating under Table 4 for Mr Smith’s Spinal Impairment was 5 points.[70] The JCA report was prepared prior to the report from Dr Madden. A 5-point Impairment Rating is also what is contended by the Secretary.[71] Mr Smith contends that his Spinal Impairment is having a moderate impact on his ability to function.
[70] Exhibit 1, T Documents, T30, pages 127-134, JCA report dated 10 June 2016.
[71] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 12 May 2017, para 6.1(a).
In May 2017 Dr Gamaralalage answered a questionnaire regarding Mr Smith’s spinal condition as at June 2016. Dr Gamaralalage reported that as at June 2016 Mr Smith:[72]
(a)always had pain while undertaking overhead activities and it takes between 2 to 3 days for him to recover;
(b)could not do repetitive activities;
(c)could not turn his head without moving his trunk due to severe pain and stiffness;
(d)could bend forward to pick up a light object from a desk or table but with significant pain and could only do this movement once in the same day. The pain from doing this required strong analgesia and took him at least 2 days to recover; and
(e)could remain seated with pain, but after 30 minutes he had to stand up.
[72] Exhibit 7, Report of Dr Gamaralalage dated 24 May 2017.
At the hearing Mr Smith said he can still drive but he rarely does and that now he cannot look over his shoulders. Mr Smith said he had neck pain as well as spinal pain. The difficulty for the Tribunal is that there is no diagnosis of any neck condition within the material before the Tribunal. It is also unclear whether Mr Smith is having difficulty turning his head because of a neck condition, spinal condition or shoulder condition. Mr Smith believes they are related. Mr Smith also acknowledged that his Spinal Impairment has deteriorated over the last 12 months.
Mr Smith also acknowledged that he had previously been paid a carer’s allowance for assistance he provided his neighbour. Mr Smith says that was emotional support and that he did not tell the JCA that he assisted with personal grooming, helping his neighbour transfer to his scooter, dressing, taking him to appointments and occasional shopping assistance. Mr Smith says the carer form he lodged would confirm the nature of the support he provided. Subsequent to the hearing, Ms Campbell obtained a copy of the Carer Payment/Carer Allowance Form completed by Mr Smith on 3 July 2014. In that form Mr Smith indicated that the person he was caring for:[73]
(a)had physical disabilities;
(b)required a significant amount of care every day, the equivalent of a normal working day;
(c)needs help with personal grooming;
(d)needs major help to be physically transferred from a bed to a chair;
(e)walks with the help of someone;
(f)needs some help dressing;
(g)needs help using stairs; and
(h)was dependant on help to bathe.
[73] Carer Payment/Carer Allowance Form completed by Mr Smith on 3 July 2014; Carer Payment and/or Carer
Allowance Medical Report completed by Dr Reedy on 30 June 2014.
Mr Smith declared to Centrelink that he spent:[74]
(a)6 hours per week assisting the person he was caring for with mobility;
(b)1 hour per week assisting the person he was caring for with personal hygiene;
(c)10 hours per week assisting the person he was caring for with communication;
(d)3 hours per week assisting the person he was caring for with his treatment; and
(e)10 hours per week assisting the person he was caring for with safety and behaviour.
[74] Carer Allowance Questionnaire completed by Mr Smith on 18 July 2014.
Mr Smith received the Carer Allowance for approximately 2 years until 12 July 2016 when the caree went into hospital.[75]
[75] Centrelink record dated 12 July 2016.
This information is consistent with what the JCA reported that Mr Smith had told them and entirely inconsistent with what Mr Smith told this Tribunal.
Dr Gamaralalage’s May 2017 report would support a 10-point rating. However, Dr Gamaralalage reported that this was the functional impact as at June 2016,.It is inconsistent with the evidence available at the Qualification Date, in particular with Mr Smith’s self-report to the JCA. Further, Dr Gamaralalage’s May 2017 report appears inconsistent with her November 2016 report where she described Mr Smith’s condition as “severe” only to 4 months later describe the condition as “moderate”.
Even if the Tribunal accepts that consistent evidence would indicate that an appropriate rating falls between 5 and 10 points, the Determination provides that 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.[76]
[76] Determination, see s 11(1).
The medical evidence indicates that Mr Smith’s Spinal Impairment has deteriorated since the Qualification Date, in which case it would be open to Mr Smith to reapply for DSP. For the purposes of this application Mr Smith’s Spinal Impairment has to be considered as at the Qualification Date.
The Tribunal considers that an appropriate Impairment Rating for Mr Smith’s Spinal Impairment under Table 4 is 5 points.
SHOULDER IMPAIRMENT
Is Mr Smith’s Shoulder Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Smith’s Shoulder Impairment was permanent at the Qualification Date.[77]
[77] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 12 May 2017, para 6.7.
The medical evidence before the Tribunal supports a finding that Mr Smith’s Shoulder Impairment is permanent for the purposes of the Act. There is certainly no evidence which suggests that Mr Smith has not undertaken recommended, appropriate or reasonable treatment. As a result, an Impairment Rating can be assigned.
Relevant Impairment Table and Impairment Rating
Table 2 of the Determination, which deals with upper limb functions, is the relevant Table.
The Introduction to Table 2 of the Determination provides:
·Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms.
·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 purposes 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 associated with upper limb impairment (e.g. arthritis or other condition affecting upper limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting upper limb coordination, inflammation or injury of the muscles or tendons of the upper limbs, amputation or absence of whole or part of upper limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
oFor the purposes of this Table upper limbs extend from the shoulder to the fingers.
To obtain a five-point rating the corroborating evidence would be to show that
Mr Smith:
(1)…can manage most daily activities requiring the use of the hands and arms, but has some difficulty with most of the following:
(a)picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b) handling very small objects (e.g. coins);
(c) doing up buttons;
(d)reaching up or out to pick up objects.
Evidence of impact on function
In addition to the evidence referred to in paragraph 68 above, the JCA also reported that Mr Smith said he:[78]
(a)is able to hang washing on the clothesline because he had had it lowered to shoulder height; and
(b)is restricted in lifting his right arm above shoulder height.
[78] Exhibit 1, T Documents, T30, page 129, JCA report dated 10 June 2016.
Mr Smith told the SSCSD that he is able to:[79]
·take a shower and wash his hair;
·dress himself and do up buttons (with difficulty);
·use utensils;
·write with a pen or pencil;
·handle coins; and
·use a mobile phone.
[79] Exhibit 1, T Documents, T3, pages 5-11, Decision of the SSCSD dated 24 November 2016.
Dr Gamaralalage reported in May 2016 that:[80]
·Mr Smith experienced pain while resting and pain with movements of his shoulder;
·Mr Smith’s shoulder movements were restricted and it was difficult for him to do a full range of movements; and
·Mr Smith had difficulty lifting and carrying heavy objects due to the pain.
[80] Exhibit 1, T Documents, T28, pages 121-122, DSP Medical Report form completed by Mr Smith and Dr
Gamaralalage dated 10 May 2016.

Dr Madden reported in June 2016 that because of Mr Smith’s osteoarthritis in the shoulders, he has difficulty reaching above shoulder height and would have difficulty reaching up to pick up objects.[81]
[81] Exhibit 1, T Documents, T31, pages 135 – 136, Report of Dr Madden dated 13 June 2016.
At the hearing Mr Smith said that because of his Shoulder Impairment he can no longer go fishing and cannot play darts. He told the Tribunal he lives by himself and while he cannot carry a heavy shopping bag, he is capable of carrying a carton of milk and a loaf of bread. Mr Smith also said he does not tend to wear button up shirts anymore.
There is no corroborating evidence around the Qualification Date that Mr Smith had difficulty handling very small objects (e.g. coins) or doing up buttons. A rating of 5 points requires that Mr Smith have difficulty with “most” of the descriptors. Therefore, a 5-point Impairment Rating is not appropriate. As a result the appropriate Impairment Rating under Table 2 as at the Qualification Date was zero points.
If Mr Smith’s Shoulder Impairment has deteriorated since the Qualification Date, the case is open to Mr Smith to reapply for DSP. However, for the purposes of this application Mr Smith’s Shoulder Impairment has to be considered as at the Qualification Date.
WERE MR SMITH’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
Mr Smith does not qualify for DSP, because his Impairments have not attracted the minimum Impairment Rating of 20 points, as required pursuant to section 94(1)(b) of the Act.
DID MR SMITH HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has concluded that Mr Smith’s Impairments were not permanent at the Qualification Date, it is unnecessary for me to consider whether Mr Smith had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Smith’s claim fails. He did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 96 (ninety-six) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

......................[Sgd]..................................................
Associate
Dated: 6 March 2018

Date of hearing: 13 February 2018

Date final submissions received: 27 February 2018

Applicant: By Phone

Advocate for the Respondent: Ms Claire Campbell

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 397

6 March 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Appeal

Date of hearing:	13 February 2018
Date final submissions received:	27 February 2018
Applicant:	By Phone
Advocate for the Respondent:	Ms Claire Campbell
Solicitors for the Respondent:	Sparke Helmore Lawyers