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

Smith and Secretary, Department of Social Services (Social services second review) [2018] AATA 3148 (31 August 2018)
Division:GENERAL DIVISION
File Number: 2016/6366
Re:Warren Smith
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:31 August 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)
REASONS FOR DECISION
Member D K Grigg
31 August 2018
INTRODUCTION AND CLAIMS HISTORY

Mr Smith was a recipient of the Disability Support Pension (“DSP”) from 2 October 2001 for a musculoskeletal impairment of his lumbar spine.[1] On 4 March 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, T 26 pages 169 – 174, Decision of ARO dated 28 July 2016; T 30, page 180, Centrelink records.
[2]Exhibit 1, T Documents, T 23, pages 146 – 159, DSP Review Medical Report.
The Medical Report completed by Mr Smith as part of Centrelink’s review, listed his medical conditions as:[3]
·Lower back
·neck and leg and hands
·arthritis and hands
·broken jaw
·colitis
[3]Exhibit 1, T Documents, T 23, pages 157 – 159, DSP Review Medical Report completed by Mr Smith dated 15 April 2016.
As part of Centrelink’s review, Dr Vure, General Practitioner, provided a report and listed Mr Smith’s medical conditions as:[4]
·low back pain – mechanical
·arthralgia – non-inflammatory
·ulcerative colitis
[4]Exhibit 1, T Documents, T 23, pages 146 – 156, DSP Review Medical Report completed by Dr Vure dated 15 April 2016.
Dr Vure reported that:
(a)Mr Smith’s lower back pain:
(i)was being treated with anti-inflammatories;
(ii)caused him pain in his legs;
(iii)limited his ability to bend; and
(iv)was expected to persist for more than 24 months and the effect of this condition on Mr Smith’s ability to function was expected to remain unchanged within the next two years;
(b)Mr Smith’s arthralgia:
(i)was being treated with analgesics;
(ii)caused pain in the small joints of his hands and mild deformity;
(iii)affected Mr Smith’s ability to lift and grip items and caused mild weakness in his left hand;
(iv)was expected to persist for more than 24 months and the effect of this condition on Mr Smith’s ability to function was expected to remain unchanged within the next two years;
(c)Mr Smith’s ulcerative colitis was generally well managed and caused minimal or limited impact on his ability to function.
A Job Capacity Assessment (“JCA”) was then conducted face-to-face with Mr Smith in May 2016 by a registered psychologist and an accredited exercise physiologist. The JCA found that:[5]
(a)Mr Smith’s arthralgia disorder was fully diagnosed, fully treated and stabilised and assigned an impairment rating of 5 points;
(b)Mr Smith’s spinal disorder was fully diagnosed, fully treated and fully stabilised and assigned an impairment rating of 10 points;
(c)Mr Smith’s ulcerative colitis, fractured jaw, ankle pain and tinnitus conditions were not fully diagnosed, treated and stabilised.
[5] Exhibit 1, T Documents, T 24, pages 160 – 166, JCA report dated 25 May 2016.
Following the medical review and Job Capacity Assessment (“JCA”), Centrelink cancelled Mr Smith’s DSP on 26 May 2016.[6]
[6] Exhibit 1, T Documents, T 25, pages 167 – 168, Letter from Centrelink to Mr Smith dated 26 May 2016.
On 6 July 2016 Mr Smith contacted Centrelink regarding the decision to cancel his DSP. A Centrelink officer recorded that Mr Smith said, “he is able to mostly self-care, but, when he is unable to, due to his medical conditions, he simply doesn’t…his young daughter helps him out a lot and he has a friend to help at times also… [he] drives when he is able and …his medical conditions will continue to deteriorate”.[7]
[7] Exhibit 1, T Documents, T 31, page 188, Centrelink records.
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.[8]
[8] Exhibit 1, T Documents, T 26 pages 169 – 174, Decision of ARO dated 28 July 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 27 October 2016.[9]
[9] Exhibit 1, T Documents, T2, pages 3 – 7, SSCSD’s Decision and Reasons for Decision dated 27 October 2016.
Mr Smith has sought a review of the SSCSD’s decision by this Tribunal.[10]
[10] Exhibit 1, T Documents, T1, pages 1 – 2, Mr Smith’s Application for Review dated 22 November 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”);[11] and
(c)Mr Smith must have a continuing inability to work.
[11] 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 section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[12]
[12] 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 26 May 2016 (“Qualification Date”).
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 “casts 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 “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”.[14]
Mr Smith’s Medical Conditions
[14] Determination, s 3.
Spinal Conditions - back and neck
In August 1997 Mr Smith was reviewed by Dr Leong Tan, Consultant Neurosurgeon, regarding a large sequestrated fragment which had migrated distally in Mr Smith’s spine and was causing compression of the right L5 nerve root.[15] Dr Tan reported that he had provided Mr Smith with information regarding the pros and cons of conservative treatment or surgery and that it was important for Mr Smith to continue his walking exercises and swimming.
[15] Exhibit 1, T Documents, T6, page 55, report of Dr Tan dated 11 August 1997.
In September 2016 Dr Muhammad Ali, General Practitioner, reported that Mr Smith had a cervical neck injury which began in 1989 but no further details were provided.[16]
[16] Exhibit 1, T Documents, T 28, page 178, Medical Certificate of Dr Ali dated 2 September 2016.
In October 2016 Dr Ali reported that the prognosis of Mr Smith’s cervical neck injury was uncertain.[17]
[17] Exhibit 1, T Documents, T 29, page 179, Medical Certificate of Dr Ali dated 5 October 2016.
Between December 2016 and February 2017 Dr Ali reported that Mr Smith was still experiencing cervical neck pain.[18]
[18] Exhibit 1, T Documents, ST12, page 20, Medical Certificate of Dr Ali dated 9 December 2016; ST12, page 21
Medical Certificate of Dr Ali dated 9 February 2017.
Arthralgia/Arthritis
In May 1997 Mr Smith was reviewed by Dr Howard Hope, Consultant Gastroenterologist and Physician, in relation to arthralgia.[19] Dr Hope reported that for 12 months Mr Smith had been experiencing pain in the proximal interphalangeal joint of his left little finger and pain in the left lateral aspect of the ankle radiating into the upper foot on his left side. Dr Hope recorded that Mr Smith fractured his left ankle 6-7 years ago. Dr Hope reports that he could find no objective abnormality in the joints and that patients sometimes experience arthralgia whilst on Mesasal (which Mr Smith was taking for his ulcerative colitis) and that he had asked him to wean himself off that.
[19] Exhibit 1, T Documents, T4, page 48, report of Dr Howard Hope dated 14 May 1997.
In April 2018 Dr Douglas Gray, Consultant Rheumatologist, reported that Mr Smith had presented with arthralgia (in his feet, hands, neck and shoulders) in 2004 and had been treated with NSAIDs. Dr Gray recommended that Mr Smith be seen by an orthopaedic surgeon, have further x-rays and an MRI taken and also that he change his medication.[20]
[20] Exhibit 5, Report of Dr Gray, dated 27 April 2018.
Ulcerative colitis
Mr Smith was first diagnosed with ulcerative colitis in January 1995.[21] In 1997 Mr Smith was treating this condition with medication. The medication was reviewed by Dr Hope in 1997 and, due to potential side effects, a trial period off the medication was recommended.[22]
[21] Exhibit 1, T Documents, T4, page 48, report of Dr Howard Hope dated 14 May 1997.
[22] Exhibit 1, T Documents, T4, page 48, report of Dr Howard Hope dated 14 May 1997.
Dr Gary reported that Mr Smith’s ulcerative colitis condition appeared reasonably well managed.[23]
[23] Exhibit 5, Report of Dr Gray, dated 27 April 2018.
Jaw Pain
The medical evidence indicates that in 2003 Mr Smith was king hit in the jaw as a result of which he suffered a fracture and underwent open reduction internal fixation of the left mandibular body fractures and closed reduction of the right parasymphyseal fractures.[24]
[24] Exhibit 1, T Documents, ST11, pages 15 – 19, Consultation Records of Dr Arthur Bilski, Oral and Maxillofacial
Surgeon between 21 February 2004 and 23 July 2004.
In August 2016 an x-ray of Mr Smith’s mandibular joint was taken which indicated that there was no mandibular abnormality.[25]
[25] Exhibit 1, T Documents, ST1, page 1, x-ray report dated 10 August 2016.
In September 2016 Dr Ali reported that:[26]
(a)Mr Smith had mandibular pain following a fracture that he suffered in 2003;
(b)Mr Smith was treating his mandibular pain with analgesia; and
(c)the planned treatment was for repeat scans and a referral to a maxillofacial surgeon.
[26] Exhibit 1, T Documents, T 28, page 178, Medical Certificate of Dr Ali dated 2 September 2016.
In December 2016 and February 2017 Dr Ali reported that Mr Smith was still experiencing mandibular pain following the fracture he suffered in 2003.[27]
[27] Exhibit 1, T Documents, ST12, page 20, Medical Certificate of Dr Ali dated 9 December 2016; ST12, page 21
Medical Certificate of Dr Ali dated 9 February 2017.
Subarachnoid haemorrhage/Tinnitis
In September 2016 Dr Ali reported that Mr Smith had a subarachnoid haemorrhage which occurred in 1989 but no further details were provided.[28]
[28] Exhibit 1, T Documents, T 28, page 178, Medical Certificate of Dr Ali dated 2 September 2016.
In December 2016 Mr Smith had an MRI of his head because of unexplained chronic headaches associated with tinnitus. The MRI found an “anterior communicating artery aneurysm with evidence of previous haemorrhage” and suggested that Mr Smith be referred to a neurosurgeon/interventional neuroradiologist.[29]
[29] Exhibit 1, T Documents, ST2, page 2, MR report dated 6 December 2016.
In December 2016 Dr Ali reported that Mr Smith was to be referred to a neurosurgeon regarding his aneurysm and haemorrhage.[30]
[30] Exhibit 1, T Documents, ST12, page 20, Medical Certificate of Dr Ali dated 9 December 2016.
In February 2017 Dr Ali reported that Mr Smith was scheduled to have neurosurgery on 20 March 2017.[31]
[31] Exhibit 1, T Documents, ST12, page 21 Medical Certificate of Dr Ali dated 9 February 2017
Upper Limb Conditions – Carpal Tunnel Syndrome/Elbow Neuropathy
In May 2017 Dr Ventzi Bonev, Neurologist, reported that Mr Smith had:[32]
(a)bilateral carpal tunnel syndrome which was moderate on the left side and mild on the right side; and
(b)mild focal ulnar neuropathy at the elbows bilaterally.
[32] Exhibit 1, T Documents, ST3, pages 3 – 4, Report of Dr Bonev dated 9 May 2017.
In May 2017 Dr Ali reported that Mr Smith was awaiting surgery for carpal tunnel syndrome release on the left-hand side.[33]
[33] Exhibit 1, T Documents, ST12, page 21 Medical Certificate of Dr Ali dated 9 February 2017.
Asthma, COPD, bursitis, right ankle pain (“Other conditions”)
A Health Summary Report prepared in May 2017 indicates that in addition to the medical conditions outlined above Mr Smith’s current active health problems included asthma, chronic obstructive pulmonary disease (COPD) and Olecranon bursitis (left).[34]
[34] Exhibit 1, T Documents, ST3, pages 6 – 7, Health Summary Report dated 12 May 2017.
An x-ray of Mr Smith’s right ankle, left hip and right foot in June 2017 found:[35]
(a)moderate osteoarthritis of the right ankle joint;
(b)mild osteoarthritis of the talonavicular and 1^st MTP joint; and
(c)mild osteoarthritis of the left hip joint.
[35] Exhibit 1, T Documents, ST5, page 8, X-ray Report dated 30 June 2017.
An ultrasound guided injection and x-ray of Mr Smith’s right shoulder in October/November 2017 found bursitis and degenerative changes in the AC joint and glenohumeral joint.[36]
[36] Exhibit 1, T Documents, ST6-ST8, pages 9 – 11, ultrasound/injection and x-ray Reports dated 10 October 2017,
18 October 2017 and 2 November 2017; ST12, page 23 Medical Certificate of Dr Ali dated 10 October 2017.
Conclusion on Impairments
The Secretary accepts that Mr Smith suffered from physical impairments for the purposes of section 94(1)(a) at the Qualification Date.[37]
[37] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 9 March 2018, para 30.
Given the medical evidence the Tribunal finds that Mr Smith suffered from a Lumbar Spine Impairment, and Arthralgia Impairment for the purposes of section 94(1)(a) at the Qualification Date.
In relation to Mr Smith’s cervical spine, ulcerative colitis, jaw pain, subarachnoid haemorrhage, Carpal Tunnel Syndrome/Elbow Neuropathy and Other conditions, at the Qualification Date:
(a)there is little to no evidence regarding the diagnosis or treatment; or
(b)treatment and investigations were ongoing; or
(c)the conditions had not been fully diagnosed; or
(d)the conditions were having minimal impact on Mr Smith’s ability to function.
These conditions cannot be considered impairments for the purposes of the Act and cannot be considered for the purpose of this DSP application. Mr Smith can lodge a new DSP application if those conditions are now permanent and are having an impact on his ability to function.
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.[38] They are function based[39] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[40]
[38] Determination, s 4(2) and 5(2)(a).
[39] Determination, s 5(2)(b) and (c).
[40] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Smith’s impairments if:[41]
(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.
[41] 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:[42]
(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.
[42] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[43] the following must be considered:[44]
(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.
[43] For the purposes of ss 6(4)(a) and (b) of the Determination.
[44] Determination, see s 6(5).
A condition is “fully stabilised”[45] if:[46]
(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;[47] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[45] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[46] Determination, see s 6(6).
[47] 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. 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.[48]
LUMBAR SPINE IMPAIRMENT
[48] Determination, see s 6(2).
Is Mr Smith’s Lumbar Spine Impairment permanent and likely to persist for at least 2 years?

In May 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Smith by a Registered Psychologist and an Accredited Exercise Physiologist. The JCA concluded that Mr Smith’s Spinal Impairment was fully diagnosed, fully treated and fully stabilised.[49]
[49] Exhibit 1, T Documents, T24, page 160, JCA report dated 25 May 2018.
The Secretary accepts that Mr Smith’s Lumbar Spine Impairment was permanent at the Qualification Date.[50]
[50] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 9 March 2018, para 43.
The Tribunal accepts that Mr Smith’s Lumbar Spine Impairment was permanent at the Qualification Date.
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[51] (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).[52]
[51] Determination, see ss 3 and 5(3).
[52] 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.[53]
[53] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[54]
(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.
[54] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[55]
(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.
[55] Determination, see s 8.
Which Tables are appropriate are determined by:[56]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[56] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[57]
[57] 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.[58]
[58] 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.[59]
[59] 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.[60]
[60] 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 5-point rating the corroborating evidence would be 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
In 2004 Dr Glover, General Practitioner, reported that Mr Smith had difficulty with prolonged sitting and standing for more than 10 minutes and was unable to bend.[61]
[61] Exhibit 1, T Documents, T20, pages 109-124, Report of Dr Glover dated 17 June 2004.
In 2005 Dr Glover reported that Mr Smith could sit and stand for a maximum of 20 minutes and had to avoid bending.[62]
[62] Exhibit 1, T Documents, T22, pages 131-145, Report of Dr Glover dated 18 August 2005.
Dr Vure reported in April 2016 that Mr Smith had limited bending.[63]
[63] Exhibit 1, T Documents, T23, pages 146-159, Report of Dr Glover dated 15 April 2016.
The JCA reported in May 2016 that Mr Smith said:[64]
·He can drive a car for 45 minutes
·He is unable to bend forward repetitively to pick up a light object at knee height
[64] Exhibit 1, T Documents, T24, page 163, JCA report dated 25 May 2016.
Mr Smith told the SSCSD in October 2016 that:[65]
(a)he could drive a car for 40 minutes
(b)he had difficulties with pain when performing overhead activities and bending to knee height and moving his head.
[65] Exhibit 1, T Documents, T2, page 5, SSCSD’s Decision and Reasons for Decision dated 27 October 2016.
Dr McNab, Mr Smith’s current General Practitioner, made himself available to the Tribunal to give evidence. Dr McNab acknowledged however that he had only commenced treating Mr Smith in January 2018, more than 12 months after the Qualification Date, and did not have first hand knowledge of Mr Smith’s condition at the Qualification Date.
The JCA concluded that an appropriate Impairment Rating under Table 4 for Mr Smith’sSpinal Impairment was 10 points.[66]
[66] Exhibit 1, T Documents, T24, page 163, JCA report dated 25 May 2016.
A 5-point Impairment Rating is what is contended by the Secretary.[67]
[67] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 9 March 2018, para 47.
It may be 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. However, for the purposes of this application Mr Smith’s Spinal Impairment has to be considered as at the Qualification Date.
The lack of corroborating medical evidence at the Qualification Date makes the Tribunal’s task more difficult.
Based on the information available the Tribunal finds that the functional impact of Mr Smith’s Lumbar Spine Impairment at the Qualification Date falls between 5 and 10 points. As a result, the lower of the 2 ratings is to be assigned because all of the descriptors for 10-point rating are not satisfied.[68]
ARTHRALGIA IMPAIRMENT
[68] Determination, see s 11(1).
Is Mr Smith’s Arthralgia Impairment permanent and likely to persist for at least 2 years?
The Tribunal finds that Mr Smith’s Arthralgia Impairment was permanent at the Qualification Date.
As a result, an Impairment Rating can be assigned.
Relevant Impairment Table and Impairment Rating
The evidence regarding what impact Mr Smith’s arthralgia is having on his ability to function relates to the use of his hands. There is some evidence regarding his shoulder however it is unclear whether this relates to his bursitis or the arthralgia. There is no evidence regarding how the arthralgia in Mr Smith’s feet affects his ability to function.
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:
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.
·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 be to show that
Mr Smith can manage most daily activities requiring the use of the hands and arms buthas 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 be 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
Evidence of impact on function
The SSCSD found that Mr Smith could perform all of the tasks in the 10-point rating except tying shoelaces and that therefore a 5-point rating was appropriate.[69]
[69] Exhibit 1, T Documents, T2, page 5, SSCSD’s Decision and Reasons for Decision dated 27 October 2016.
Dr Vure reported in April 2016 that Mr Smith had mild weakness in his left hand and that lifting and gripping were affected.[70]
[70] Exhibit 1, T Documents, T23, pages 146-159, Report of Dr Glover dated 15 April 2016.
The JCA reported in May 2016 that Mr Smith said he had some difficulty:[71]
(a)handling very small objects like coins
(b)doing up buttons; and
(c)reaching out to pick up objects.
[71] Exhibit 1, T Documents, T24, page 163, JCA report dated 25 May 2016.
There is limited corroborating evidence regarding how Mr Smith’s Arthralgia Impairment affects his ability to function. However, the evidence available indicates that an appropriate Impairment Rating under Table 2 is 5 points.
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 permanent Impairments only attracted a 10 point Impairment Rating at the Qualification Date it is unnecessary 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’ claim fails. He did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 94 (ninety - four) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

...........................[Sgd].............................................
Associate
Dated: 31 August 2018

Date of hearing:

Applicant’s Representative:

14 August 2018

Mr Steve Sherman (By telephone)

Applicant: In person

Solicitors for the Respondent: Department of Human Services

Advocate for the Respondent: Ms Maleah Underhill, Senior Government Lawyer

[2018] AATA 3148

31 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Remedies

Date of hearing: Applicant’s Representative:	14 August 2018 Mr Steve Sherman (By telephone)
Applicant:	In person
Solicitors for the Respondent:	Department of Human Services
Advocate for the Respondent:	Ms Maleah Underhill, Senior Government Lawyer