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

Smith and Secretary, Department of Social Services (Social services second review) [2018] AATA 18 (11 January 2018)
Division:GENERAL DIVISION
File Number: 2017/4462
Re:Craig Smith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:11 January 2018
Place:Brisbane

The Tribunal affirms the decision under review.
......................... [SGD]...............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension –whether conditions permanent – 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)
REASONS FOR DECISION
Member D K Grigg
11 January 2018
INTRODUCTION AND CLAIMS HISTORY

On 11 March 2016 Mr Smith lodged a claim for Disability Support Pension (“DSP”) listing his medical conditions as follows:[1]
·left shoulder – degenerative joints, damaged corococlavicalar ligament, sub-luxed tendon , subacromial bursa and bursal bunching, old fracture, arthritis;
·left-hand – significant trauma, screw fixation through distal radius, non-healing scaphoid fracture with avascular necrosis, significant degenerative damage, arthritis;
·lumbar spine – L5/S1 bilateral neuroforminal severe stenosis, L3/4 posterior disc bulge, L4/5 posterior disc bulge and complex osteophyte, L5/S1 loss of disc space and pressing on the L5 nerve root;
·cervical spine/neck – C2/3 degenerating, C3/4 endplate degeneration, disc bulge, C4/5 endplate degeneration, subchondral cysts, joint degeneration, posterior disc bulge, C5/6 loss of disc height, C6/7 endplate degeneration, large calcified disc, severe right foraminal stenosis, C7/T1 endplate degeneration, severe foraminal stenosis, multilevel degeneration.
[1] Exhibit 1, T Documents, T14, page 93, Mr Smith’s Claim for DSP dated 11 March 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Mr Smith’s claim for DSP on the basis that he did not have impairments with a total Impairment Rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T 21, pages 187 – 188, Rejection of claim for DSP dated 22 July 2016.
Claim History
Mr Smith sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”) on 20 August 2016.[3] The subsequent review by the ARO was unsuccessful on the grounds that his permanent impairments did not attract an Impairment Rating of 20 points or more.[4]
[3] Exhibit 1, T Documents, T 22, pages 189 – 192, Mr Smith's request for review.
[4] Exhibit 1, T Documents, T 28, pages 205 – 208, Decision of ARO dated 5 December 2016.
Mr Smith then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal on 27 February 2017.[5] The SSCSD rejected Mr Smith’s claim and affirmed the ARO’s decision on 6 July 2017.[6]
[5] Exhibit 1, T Documents, T 32, page 216, Centrelink Notice of Application for Review of Decision dated 13 March
2017.
[6] Exhibit 1, T Documents, T2, pages 2 – 12, SSCSD’s Decision and Reasons for Decision dated 6 July 2017.
Mr Smith has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T1, page 1, Application for Second Review of Decision dated 26 July 2017.
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”).[8]
(c)Mr Smith must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Mr Smith meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 11 March 2016), unless

Mr Smith becomes qualified within 13 weeks of lodging the claim, in which case his start day is the day he becomes qualified.[9] Therefore, in order to qualify for DSP,
Mr Smith must have met the Section 94 Requirements between 11 March 2016 and 10 June 2016 (“Qualification Period”).
[9] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
As was discussed at the hearing, it is important to keep in mind that medical evidence concerning the functional impact of Mr Smith’s impairments after the Qualification Period, can only be considered if it “cast[s] light on” the functional impact of the impairments during the Qualification Period.[10]
DID MR SMITH HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[10] 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 “impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Mr Smith’s Medical Conditions
[11] Determination, s 3.
Left Hand
In 2011 Mr Smith crushed his left hand which resulted in his needing a screw fixation through the distal radius. An x-ray of his left hand in October 2011 showed that he had a previous non-healing scaphoid fracture with evidence of a vascular necrosis, significant degenerative change within the radio carpal joint and multiple loose bony bodies around the wrist. Dr Leigh Mosel, Radiologist, reported that there was no evidence to suggest an acute bone injury and no significant soft tissue swelling.[12]
[12] Exhibit 1, T Documents, T4, page 42, X-ray report dated 8 October 2011.
In October 2016, 4 months after the Qualification Period, Dr Lockwood reported that:[13]
[13] Exhibit 1, T Documents, T 26, pages 196 – 198, Report of Dr Lockwood dated 18 October 2016.
(a)Mr Smith injured his left hand in two motor vehicle accidents in 1979 and 1991;
(b)Mr Smith has had six operations on his left hand and still has a screw in situ across the scaphoid fracture;
(c)Mr Smith’s left-hand condition has resulted in a loss of strength, a loss of movement, chronic aching and poor sleep;
(d)Mr Smith frequently drops items, for example a litre of milk, plates and mugs;
(e)Mr Smith cannot:
(i)lift bulky objects;
(ii)screw and unscrew soft drink bottles;
(iii)use a keyboard;
(iv)tie shoelaces; and
(f)Mr Smith treats his left hand condition with Voltaren, Panadol Osteo and Tramadol.
In January 2017 Dr Lockwood reported that Mr Smith has weakness and pain in his left hand.[14]
[14] Exhibit 1, T Documents, T 29, page 211, Medical certificate of Dr Lockwood dated 13 January 2017.
In April 2017 Dr Lockwood reported that Mr Smith has weakness and pain in his right hand which was permanent and stabilised.[15]
[15] Exhibit 1, T Documents, T 34, page 221, Medical certificate of Dr Lockwood dated 13 April 2017.
On 29 May 2017 Mr Smith had a further CT scan of his left wrist which showed that there was a non-union of the scaphoid fracture and advanced secondary osteoarthritis and carpal instability.[16]
[16] Exhibit 1, T Documents, T 35, page 228, CT report dated 29 May 2017.
In June 2017, 12 months after the Qualification Period, Mr Smith reported that his left wrist condition has deteriorated since December 2016 and that he will probably have to have a further operation. Mr Smith also said that his back, neck and shoulder also needs intervention.[17]
[17] Exhibit 1, T Documents, T 35, page 222, Letter from Mr Smith to SSCSD dated 5 June 2017.
Right Hand
Mr Smith has fractured his right hand in the past on multiple occasions. In October 2016 an x-ray indicated:[18]
…osteophyte formation and bony irregularity on the margins of the 1^st metacarpophalangeal joint, the proximal interphalangeal joint of the little finger and to a lesser degree the 1^st and 2^nd metacarpophalangeal joints consistent with arthrosis associated with previous trauma…minor osteophytes…on the margins of the joints…Apparent flexion deformity at the distal interphalangeal joint of the middle finger…
[18] Exhibit 1, T Documents, T25, page 195, X-ray report dated 17 October 2016.
In October 2016 Dr Lockwood reported that:[19]
[19] Exhibit 1, T Documents, T 26, pages 196 – 197, Report of Dr Lockwood dated 18 October 2016.
(a)Mr Smith injured his right hand in 1993 when he caught a falling frame at work and fractured three of his fingers;
(b)Mr Smith’s right-hand condition has caused Mr Smith:
(i)to have a loss of strength;
(ii)pain and aches causing poor sleep;
(iii)to drop items such as plates, mugs and milk;
(iv)to have difficulty using a keyboard; and
(c)Mr Smith treats his right hand condition with Voltaren, Panadol Osteo and Tramadol.
In January 2017 Dr Lockwood reported that Mr Smith has weakness and pain in his right hand.[20]
[20] Exhibit 1, T Documents, T 29, page 211, Medical certificate of Dr Lockwood dated 13 January 2017.
In April 2017 Dr Lockwood reported that Mr Smith has weakness and pain in his right hand which was permanent and stabilised.[21]
[21] Exhibit 1, T Documents, T 34, page 221, Medical certificate of Dr Lockwood dated 13 April 2017.
Left shoulder
An x-ray and ultrasound of Mr Smith’s left shoulder in June 2014 showed that he had:[22]
(a)degenerative features of the AC joint;
(b)bony spurring on the undersurface of the lateral clavicle as well as some acromial spurring;
(c)previous damage to the coracoclavicular ligament;
(d)a supraspinatus tendon, a little heterogeneous in texture;
(e)a prominent subacromial bursa; and
(f)bursal bunching on abduction in keeping with bursal impingement.
[22] Exhibit 1, T Documents, T5, page 43, X-ray and ultrasound report of Dr Paul Newbold dated 24 June 2014.
In January and April 2016 Dr Prasad reported that Mr Smith had bilateral shoulder tendinitis.[23]
[23] Exhibit 1, T Documents, T 11 and T 15, page 59 and 94, Medical Certificates of Dr Prasad dated 29 January 2016
and 19 April 2016.
Mr Smith had an ultrasound of his left shoulder in May 2016 which showed “subdeltoid bursal thickening which bunches on abduction consistent with impingement [and a] limited range of movement in all directions due to pain”.[24]
[24] Exhibit 1, T Documents, T 16, page 95, Ultrasound report dated 24 May 2016.
In October 2016 Dr Lockwood reported that:[25]
[25] Exhibit 1, T Documents, T 26, pages 196 – 197, Report of Dr Lockwood dated 18 October 2016.
(a)Mr Smith damaged his clavicle following a motorbike accident in 1978;
(b)as a result of his left shoulder condition Mr Smith:
(i)has a loss of movement above shoulder height;
(ii)has weakness in all movements;
(iii)has pain which interferes with his sleep;
(iv)has difficulty getting mugs, towels, anything from top shelves;
(v)cannot hang out washing;
(vi)has difficulty taking out the rubbish especially if there is any jarring of bins;
(vii)cannot prune back trees;
(viii)cannot clean gutters;
(ix)cannot wash the car; and
(c)Mr Smith treats his left shoulder condition with medications (Voltaren, Panadol Osteo and Tramadol), steroids and local anaesthetic to the subdeltoid bursa.
In January 2017 Dr Lockwood reported that Mr Smith has bilateral shoulder tendinitis, which has resulted in Mr Smith having a loss of movement above his shoulder height, weakness and pain.[26]
[26] Exhibit 1, T Documents, T 29, page 211, Medical certificate of Dr Lockwood dated 13 January 2017.
In April 2017 Dr Lockwood reported that Mr Smith’s bilateral shoulder tendinitis has resulted in Mr Smith having a loss of movement above his shoulder height, weakness and pain and was permanent and stabilised.[27]
[27] Exhibit 1, T Documents, T 34, page 221, Medical Certificate of Dr Lockwood dated 13 April 2017.
In June 2017 Mr Smith reported that his shoulder needs intervention.[28]
[28] Exhibit 1, T Documents, T 35, page 222, Letter from Mr Smith to SSCSD dated 5 June 2017.
Spinal Conditions - back and neck
Throughout 2014 and 2015 Dr Prasad reported that Mr Smith had degenerative disc disease of his cervical/lumbar spine and that it was causing him chronic neck/back pain, paraesthesia in both legs and arms.[29]
[29] Exhibit 1, T Documents, T7 – T8 and T10, pages 48 – 55, 58, Medical Certificates of Dr Prasad dated 5 March
2014, 2 April 2014, 5 May 2014, 2 June 2014, 21 August 2014, 28 November 2014, 21 April 2015, 4 August 2015 and 27 November 2015.
In January 2016 Dr Prasad reported that Mr Smith’s spinal condition would affect him for more than 24 months and that he was suffering from back pain, stiffness and limited movements. Dr Prasad also reported that Mr Smith was treating the condition with analgesics, anti-inflammatory, hydrotherapy and sauna treatment.[30]
[30] Exhibit 1, T Documents, T 11, page 59, Medical Certificate of Dr Prasad dated 29 January 2016.
In February 2016 Mr Smith had a CT scan of his cervical spine which indicated multilevel degenerative changes, at least moderate central canal stenosis at C6/7 with severe right C6/7 and left C7/T1 foraminal stenosis.[31]
[31] Exhibit 1, T Documents, T 12, page 60, CT report dated 29 February 2016.
A further x-ray and CT scan of Mr Smith’s lumbar spine was taken in March 2016 and indicated:[32]
Multilevel changes present in the lumbar spine. Most significantly, there is bilateral neuroforaminal stenosis (severe on the right) at the L5/S1 level. Overall appearances have not changed significantly since the previous CT dated 6/3/2014.
[32] Exhibit 1, T Documents, T 13, page 61, X-ray and CT report dated 9 March 2016.
In April 2016 Dr Prasad reported that Mr Smith’s spinal condition would affect him for more than 24 months and that he was suffering from back pain, stiffness and limited movements. Dr Prasad also reported that Mr Smith was treating the condition with analgesics, anti-inflammatory, hydrotherapy and sauna treatment.[33]
[33] Exhibit 1, T Documents, T 15, page 94, Medical Certificate of Dr Prasad dated 19 April 2016.
In or around early 2016 Dr Francis Ghan, Orthopaedic Surgeon, reported that he had reviewed Mr Smith’s lumbar CAT scan of 2014 which demonstrated no abnormalities.[34]
[34] Exhibit 1, T Documents, T 17, page 170, Report of Dr Ghan undated.
In June 2016 Dr Michael Lockwood, General Practitioner, reported that:[35]
(a)Mr Smith’s major problem is that of low back pain with radiation in the L5 dermatome right side;
(b)Mr Smith continues to have severe pain which limits activities such as day-to-day living, shopping, driving and light maintenance;
(c)Mr Smith cannot manage with a constantly bent back, cannot manage heavy lifting and cannot manage repetitive bending and lifting;
(d)Mr Smith is treating the condition with Panadol, Brufen and Tramadol;
(e)Mr Smith has been totally unable to engage in any occupation, business, profession or employment since 20 March 2014; and
(f)Mr Smith remains permanently incapacitated to the extent that he is unlikely ever to engage in any gainful occupation, business profession or employment, with respect to his education, training and experience.
[35] Exhibit 1, T Documents, T 18, page 176, Letter from Dr Lockwood to Ms Godfrey, Claims Assessor, dated 28
June 2016.
In July and October 2016 Dr Lockwood reported that Mr Smith’s degenerative disc disease of the cervical and lumbar spine was causing him back pain, stiffness and limited movements and was likely to persist.[36]
[36] Exhibit 1, T Documents, T 19, page 177, Medical certificate of Dr Lockwood dated 14 July 2016; T 24, page 194,
Medical certificate of Dr Lockwood dated 15 October 2016.
In October 2016 Dr Lockwood reported that:[37]
[37] Exhibit 1, T Documents, T 26, pages 196 – 197, Report of Dr Lockwood dated 18 October 2016.
(a)Mr Smith had hurt his neck in three separate motor vehicle accidents in 1977, 2004 and 2008;
(b)as a result of his cervical spine condition Mr Smith:
(i)suffers from severe neck pain when looking up and when looking down;
(ii)has poor sleep due to pain;
(iii)has pain when twisting his neck from side to side;
(iv)cannot read easily;
(v)cannot use computer easily;
(vi)cannot watch TV easily;
(vii)cannot hang out washing;
(viii)is unable to do any gardening;
(ix)cannot mow the lawns easily;
(x)cannot vacuum or sweep floors;
(xi)cannot prepare food easily;
(xii)cannot perform any overhead activities; and
(c)Mr Smith treats his cervical spine condition with Voltaren, Panadol Osteo and Tramadol.
In January 2017 Dr Lockwood reported that Mr Smith’s degenerative disc disease of the cervical and lumbar spine was causing him back pain, stiffness and limited movement.[38]
[38] Exhibit 1, T Documents, T 29, page 211, Medical Certificate of Dr Lockwood dated 13 January 2017.
In March 2017 Dr Lockwood completed a Mobility Allowance Medical Report and reported that Mr Smith:[39]
(a)has severe lumbar sacral pain;
(b)cannot walk 400 m;
(c)cannot stand on public transport;
(d)has moderate difficulty sitting in public transport;
(e)has serious difficulty crossing streets and negotiating curbs;
(f)has serious difficulty negotiating steps in and out of public transport;
(g)has serious difficulty negotiating a large flight of steps; and
(h)will have severe lumbar sacral pain permanently.
[39] Exhibit 1, T Documents, T 33, pages 217 – 220, Medical Report for Mobility Allowance of Dr Lockwood dated 24
March 2017.
In April 2017 Dr Lockwood reported that Mr Smith’s degenerative disc disease of the cervical and lumbar spine was causing him back pain, stiffness and limited movement.[40]
[40] Exhibit 1, T Documents, T 34, page 221, Medical Certificates of Dr Lockwood dated 13 April 2017.
In June 2017 Mr Smith reported that his back and neck conditions need intervention.[41]
[41] Exhibit 1, T Documents, T 35, page 222, Letter from Mr Smith to SSCSD dated 5 June 2017.
Chronic Pain
Mr Smith’s conditions outlined above are causing him pain. In early 2017, 6 months after the Qualification Period, Mr Smith was referred to a pain management clinic and he was placed on a waitlist.[42] Mr Smith was reviewed by the pain clinic on 8 August 2017.[43] Dr Aman Ahuja reported that Mr Smith had an irreversible condition and he did not believe surgery or intervention would improve his pain. Dr Ahuja says given that Mr Smith has engaged with a multi-disciplinary pain service there is limited further engagement expected to improve his symptoms.
[42] Exhibit 1, T Documents, T35, page 231, Letter from Townsville Hospital to Mr Smith dated 2 March 2017.
[43] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, Attachment A, Report of Dr
Ahuja dated 8 August 2017.
Conclusion on Impairments

The Secretary accepts that Mr Smith suffered from physical impairments for the purposes of section 94(1)(a) of the Act, during the Qualification Period.[44]
[44] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 24.
Given the medical evidence, the Tribunal finds that Mr Smith suffered from a Left Hand Impairment, Right Hand Impairment, Shoulder Impairment and Spinal Impairment for the purposes of section 94(1)(a) of the Act during the Qualification Period.
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.[45] They are function based[46] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[47]
[45] Determination, ss 4(2) and 5(2)(a).
[46] Determination, ss 5(2)(b) and (c).
[47] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Smith’s impairments if:[48]
(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.
[48] 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:[49]
(a)the condition has been “fully diagnosed”[50] by an “appropriately qualified medical practitioner”[51];
(b)the condition has been “fully treated”[52];
(c)the condition has been “fully stabilised”[53]; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[49] Determination, see s 6(4).
[50] For the purposes of s 6(4)(a) of the Determination.
[51] Determination, see s 3.
[52] For the purposes of s 6(4) (b) of the Determination.
[53] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
In determining whether a condition has been “fully diagnosed”[54] by an appropriately qualified medical practitioner and whether it has been “fully treated”[55] the following must be considered:[56]
(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.
[54] For the purposes of s 6(4)(a) of the Determination.
[55] For the purposes of s 6(4) (b) of the Determination.
[56] Determination, see s 6(5).
A condition is “fully stabilised”[57] if:[58]
(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”;[59] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[57] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[58] Determination, see s 6(6).
[59] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years.[60] If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.[61]
[60] Determination, see s 6(3)(b).
[61] Determination, see s 6(3).
Before applying the Tables the Tribunal must first consider Mr Smith’s medical history, in relation to the conditions causing the impairments.[62]
[62] Determination, see s 6(2).
HAND AND SHOULDER IMPAIRMENTS
Are Mr Smith’s Hand and Shoulder Impairments permanent and likely to persist for at least 2 years?
The medical evidence supports a finding that Mr Smith’s Hand and Shoulder Impairments are fully diagnosed, fully treated and fully stabilised. This is conceded by the Secretary.[63]
[63] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 10 November 2017, para 42.
Therefore, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Smith’s impairments have to be assessed against the “descriptor[s]”[64] (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”).[65]
[64] Determination, see ss 3 and 5(3).
[65] 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.[66]
[66] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[67]
(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.
[67] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[68]
(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’ local community.
[68] Determination, see s 8.
Which Tables are appropriate are determined by:[69]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct Impairment Rating.
[69] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[70]
[70] 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.[71]
[71] 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.[72]
[72] 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.[73]
[73] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 2 of the Determination, which deals with upper limb function, 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:
o    a report from the person’s treating doctor;
o    a 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);
o    a report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
o    results of diagnostic tests (e.g. X-Rays or other imagery);
o    results of physical tests or assessments.
·    For the purposes of this Table upper limbs extend from the shoulder to the fingers.
To obtain a 5-point rating the corroborating evidence would need to show that
Mr Smith 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.
To obtain a 10-point rating the corroborating evidence would need to show that
Mr Smith has difficulty with most of the following:
(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 (e.g. a cardboard box);
(c)holding and using a pen or pencil;
(d)doing up buttons or tying shoelaces;
(e)using a standard computer keyboard;
(f)unscrewing a lid on a soft-drink bottle.
To obtain a 20-point rating the corroborating evidence would need to show that most of the following apply to Mr Smith:
(a)[he] has limited movement or coordination in both arms or both hands, or has an amputation rendering a hand or arm non-functional;
(b)[he] has severe difficulty handling, moving or carrying most objects even when using or wearing any prosthesis or assistive device that they have and usually use;
(c)[he] has difficulty using a computer keyboard despite appropriate adaptations;
(d)[he] has severe difficulty using a pen or pencil;
(e)[he] has severe difficulty turning the pages of a book without assistance.
Evidence of impact on function
The JCA reported in July 2016 that Mr Smith said:[74]
(a)he had restricted movement in his left arm;
(b)he cannot sleep flat on his back or on his left shoulder as this aggravates pain and so he can never get comfortable leading to broken sleep most nights;
(c)he avoids wearing button up shirts; and
(d)spends his day reading, watching TV and researching about his health on the computer.
[74] Exhibit 1, T Documents, T 20, pages 179-180, JCA report dated 22 July 2016.
The JCA reported that an Impairment Rating under Table 2 could not be assigned because there was no medical evidence of the functional impacts of Mr Smith’s upper limb impairments.[75]
[75] Exhibit 1, T Documents, T 20, page 183, JCA report dated 22 July 2016.
The Secretary contends that no more than a 5-point rating under Table 2 is appropriate and points out that:[76]
(a)during the Qualification period Mr Smith was able to undertake employment as a “store person/forklift driver” until March 2014 which would have required a reasonable level of fine manipulation skills;
(b)Mr Smith was clearly able to operate a forklift even though the medical evidence indicates that his shoulder tendonitis was onset in 1978 and his right and left hand pain and weakness as being 1993;
(c)Mr Smith only ceased working as a forklift driver due to the exacerbation of his spinal condition;[77]
(d)there is an absence of corroborative medical evidence verifying the level of functional impairment resulting from Mr Smith's upper limb conditions during the Qualification Period;
(e)Mr Smith told the JCA that his right hand condition caused no specific functional impact;[78] and
(f)Mr Smith did not refer to his right hand in his DSP claim form.
[76]         Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 10 November 2017, para 43-45.
[77]         Exhibit 1, T Documents, T17, page 165, Employment Separation Certificate dated 26 February 2016; T17, page
166, TPD Claim-Employer’s Statement dated 26 February 2016.
[78]         Exhibit 1, T Documents, T 20, page 179, JCA report dated 22 July 2016.
Mr Smith submits that a 20-point rating is appropriate under Table 2 because:[79]
(a)he cannot pick up a 1 litre carton of fluid with one hand;
(b)he cannot pick up a light, bulky object with 2 hands;
(c)writing is extremely painful; and
(d)he wears slip-on shoes and shirts without buttons to avoid having to tie shoelaces and do buttons up.
[79] Exhibit 1, T Documents, T22, page 189, Submission of Mr Smith dated 20 August 2016.
The difficulty for the Tribunal is that there is no corroborative medical evidence verifying the level of functional impairment resulting from Mr Smith's upper limb conditions during the Qualification Period. The introduction to Table 2 specifically provides that self-report of symptoms alone is insufficient. The October 2016 report of Dr Lockwood which does address the functional impact is 4 months after the Qualification Period.
In the circumstances the highest Impairment Rating that could be given is 5 points, given that the October 2016 report confirms what Mr Smith told the JCA regarding his difficulty doing up buttons. A higher rating cannot be given because it is unclear from this report whether it is reflective of Mr Smith’s impairments during the Qualification Period. Mr Smith has told the Tribunal that there has been a deterioration of his condition since he lodged his claim in March 2016. If Mr Smith’s impairments have deteriorated, he can lodge a new DSP claim which the Tribunal understands he has done recently.
SPINAL IMPAIRMENT
Is Mr Smith’s Spinal Impairment permanent and likely to persist for at least 2 years?
The Secretary contends that Mr Smith's spinal conditions were not fully diagnosed, treated or stabilised during the Qualification Period.[80]
[80] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 33.
The Secretary relies on the results of a further JCA conducted in November 2016. The November JCA reported:[81]
'Given the continuing recommendations for treatment (injections, hydrotherapy, sauna and possible surgical intervention) this condition is not considered fully treated. There is no evidence of pain management I pain specialist intervention and given that pain is a primary functional impact, it would be assumed as a relevant and necessary intervention. This condition is not considered fully stabilised, as there is a possibility of functional improvement with treatment I intervention and specialist confirms that an exacerbation of symptoms is currently occurring, also indicating a lack of stability in condition.'
[81] Exhibit 1, T Documents, T27, page 201, JCA Report 10 November 2016.
This assessment is 5 months after the Qualification Period. The JCA conducted in July 2016 concluded that the Spinal Impairment was permanent for the purposes of the Act because any further specialist intervention was only likely to aid in the management of the condition, rather than necessarily lead to any significant functional improvements.[82]
[82] Exhibit 1, T Documents, pages 180-181, JCA Report 22 July 2016.
The Secretary submits that because Mr Smith had not seen a pain specialist until approximately 14 months after the Qualification Period, he could not be considered to be fully treated.[83]
[83] Exhibit 2, Secretary’s Statement of Facts and Contentions dated 10 November 2017, para 35.
As at 2014 the origin of Mr Smith’s low back pain was uncertain. Dr Graham, Occupational Physician, reported in 2014 that while the CT scan showed “significant degenerative change” it “does not fit entirely with his presentation” and the “overall impression is one of significant exaggeration of his claimed symptoms”.[84] In Dr Graham’s opinion, further investigation was required and a possible trial of treatment, including either a facet joint injection or foraminal block in the event the degenerative change identified in the CT scan was determined to be the source of Mr Smith's pain.
[84] Exhibit 1, T Documents, T6, pages 44-47, Report of Dr Graham dated 18 July 2014.
Mr Smith did seek the opinion of Dr Kumar, rehabilitation specialist, on 21 February 2017, but this was approximately nine months outside the Qualification Period.[85]
[85] Exhibit 1, T Documents, T35, page 237, Invoice for consultation with Dr Kumar dated 21 February 2017.
The Secretary submits that “a referral to a Pain Clinic was required to correctly diagnose, investigate and treat the Applicant's spinal pain during the qualification period. Pain management clinics utilise multi-disciplinary teams to treat chronic pain, and involve doctors specialising in pain medicine, anaesthesia, neurology, rheumatology, psychiatry and/or rehabilitation medicine to assist in identifying the source of the Applicant's pain, and in the delivery of appropriate treatment”.[86]
[86] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 10 November 2017, para 38.
The Tribunal agrees with the Secretary’s submission. The Tribunal finds that there is insufficient evidence that Mr Smith’s Spinal Impairment has been fully diagnosed and that he had not been fully treated during the Qualification Period. There is no reason why pain management would not have been considered reasonable treatment[87] to have considered and trialled during the Qualification Period. Further, without a proper understanding of the cause of Mr Smith’s pain, it is not clear that the cause has been fully treated. Therefore, Mr Smith’s Spinal impairment was not permanent during the Qualification Period and no impairment rating can be assigned.
[87] The definition of reasonable treatment section 6(7) of the Determination requires not that treatment be available in
a location that is reasonably accessible and that any treatment be reliably expected to result in a substantial improvement in functional capacity and have a high success rate.
WERE MR SMITH’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. Mr Smith does not qualify for DSP because his permanent impairments have only been assigned a 5 point impairment rating.
DID MR SMITH HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has found that Mr Smith’s Impairments were either not permanent or did not attract a 20-point Impairment Rating during the Qualification Period, it is not necessary 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 because he did not qualify for DSP at the Qualification Period.
The decision under review is affirmed.

I certify that the preceding 85 (eighty -five) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.......................... [SGD]..............................................
Associate
Dated: 11 January 2018
Date of hearing:  19 December 2017
Applicant:  By telephone
Advocate for the Respondent:           Ms Claire Campbell, Seconded Lawyer

Solicitors for the Respondent: Department of Human Services

[2018] AATA 18

11 January 2018

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