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

[2020] AATA 157

Smith; Secretary, Department of Social Services and (Social services second review) [2020] AATA 157 (12 February 2020)

Division:GENERAL DIVISION

File Number(s):2017/7245      

Re:Secretary, Department of Social Services  

APPLICANT

Michael SmithAnd  

RESPONDENT

DECISION

Tribunal:Senior Member P J Clauson AM

Date:12 February 2020

Place:Brisbane

The decision of the Administrative Appeals Tribunal Social Services and Child Support Division dated 2 November 2017 is set aside and is substituted by a decision that the respondent did not satisfy paragraphs 94(1)(b) and (c) of the Act and thus did not qualify for DSP at the date of his claim, namely 2 March 2017.

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Senior Member P J Clauson AM

CATCHWORDS

SOCIAL SECURITY – Social Security Act 1991 (Cth) – Disability Support Pension – DSP – decision of AAT1 to remit matter for reconsideration with direction that respondent met paragraphs 94(1)(a) (b) and (c) of the Act – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the Impairment Tables during the Relevant Period – where comorbid symptoms of impairment which is not fully treated or fully stabilised – where Impairment Rating cannot be assigned due to comorbid symptoms – decision under review set aside and substituted

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

Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Pignat and Secretary, Department of Social Services (2017) AATA 2745

REASONS FOR DECISION

Senior Member P J Clauson AM

12 February 2020

INTRODUCTION

1. Mr Michael Smith (“Respondent”) applied for Disability Support Pension (“DSP”) on 2 March 2017. The Respondent’s claim for DSP was rejected initially by the Applicant (the Secretary, Department of Social Services) (“the Department”) on 10 May 2017. The Respondent then sought a review of the Department’s initial decision and on 19 July 2017, an Authorised Review Officer (“ARO”) of the Department affirmed the initial decision. The Respondent subsequently sought a review by the Administrative Appeals Tribunal (Social Services and Child Support Division) (“AAT1”) of the decision of the ARO.

2. On 2 November 2017 the AAT1 decided to set aside the ARO’s decision of 19 July 2017 and remit the matter to the Department for reconsideration with a direction that the Respondent satisfied the requirements of paragraphs 94(1)(a), (b) and (c) of the Social Security Act 1991 (Cth) (“the Act”) as at the date of claim, namely 2 March 2017.

3. On 6 December 2017, the Department lodged an Application for Review (Organisation) of the decision of the AAT1 of 2 November 2017.

   ISSUES

4. The issue before this Tribunal is whether the Respondent, at the date of his claim on 2 March 2017, or within 13 weeks thereafter (“Qualification Period”), satisfied the qualification criteria for DSP.

5. Consideration is also required as to whether the Respondent, during the Qualification Period, satisfied those criteria set out in Section 94 of the Act, in particular, whether within the Qualification Period the Respondent had:

   (a)A physical, intellectual or psychiatric impairment or impairments that attracted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension)Determination 2011 (Cth) (“the Impairment Tables Determination”); and

   (b)A continuing inability to work.

   BACKGROUND

6. As outlined above, the Respondent lodged a claim for DSP on 2 March 2017.[1]

   [1] T Documents 43, Folios 206 to 235.

7. On 1 May 2017 a Job Capacity Assessment (“JCA”) was completed by an Occupational Therapist (“the Assessor”)[2] which recommended that the Respondent’s Hepatitis C, hemochromatosis and cirrhosis conditions were fully diagnosed, fully treated and fully stabilised, but caused no impairment and thus attracted an Impairment Rating of zero points under Table 1 of the Impairment Tables Determination. The JCA found also that the Respondent had a work capacity within two years of 23 to 29 hours per week.

   [2] T Documents 45, Folios 237 to 242.

8. The initial decision was made on 10 May 2017 to reject the respondent’s claim for DSP on the basis that the JCA concluded he did not have an Impairment Rating of 20 points or more under the Impairment Tables Determination.[3]

   [3] T Documents 46, Folios 243 to 244.

9. The Respondent sought review by an ARO of this decision to reject his claim for DSP on 19 July 2017. The ARO reviewed and affirmed the initial decision[4] agreeing with the findings of the JCA. The ARO also found the Respondent had not completed the Program of Support requirements within the meaning of subsection 94(2) of the Act.

   [4] T Documents 49, Folios 247 to 255.

10. The Respondent then applied for a review of the decision by the ARO and the AAT1 set aside that decision on 2 November 2017 and remitted the matter to the Department with a direction that the Respondent had satisfied paragraphs 94(1)(a), (b) and (c) of the Act at the date of claim and, subject to any payability requirements, it would have followed that he would qualify for DSP.[5] Relevant to this review, the AAT1 concluded that the Respondent’s Hepatitis C, hemochromatosis and liver fibrosis conditions were fully diagnosed, fully treated and fully stabilised and further, they constituted a severe impairment under subsection 94(3B) of the Act as they attracted an Impairment Rating of 20 points under Table 1 of the Impairment Tables Determination.

    [5] T Documents 2, Folios 4 to 10.

11. The Department, following the decision by the AAT1, applied to the General Division of this Tribunal for review of the decision of AAT1.[6]

    [6] T Documents 1, Folios 1 to 3.

12. A file review of the evidence relevant to the Respondent’s conditions during the Qualification Period was undertaken on 27 July 2018 by Dr David Jones, an Occupational Physician. Dr Jones opined that the Respondent’s Hepatitis C, hemochromatosis and liver fibrosis conditions were fully diagnosed, fully treated and fully stabilised. Dr Jones also concluded that the Respondent’s sleep apnoea condition was not fully treated and fully stabilised at the Qualification Period. Dr Jones also concluded that it was not possible to attribute the Respondent’s symptoms of fatigue to any of the conditions that were fully diagnosed, fully treated and fully stabilised. Dr Jones further concluded that with the appropriate treatment, the Respondent would be at least capable of conducting light and/or sedentary work for at least 15 hours a week within two years.[7]

    [7] Report of Dr Jones dated 30 July 2018.

    LEGISLATION

13. To qualify for DSP, a person must satisfy the criteria contained in section 94 of the Act. So far as is relevant to this review, they are:

    (a)The person has a physical, intellectual or psychiatric impairment or impairment(s) (paragraph 94(1)(a));

    (b)The person’s impairment(s) is/are of 20 points or more under the Impairment Tables (paragraph 94(1)(b)); and

    (c)The person has a continuing inability to work (subparagraph 94(1)(c)(i)).

14. The Impairment Tables are located in the Impairment Tables Determination which was made pursuant to Section 26 of the Act and came into force on 1 January 2012.

15. Clause 5(1) of the Impairment Tables Determination provides that in applying the Impairment Tables, regard must be had to the principles set out in Clauses 5(2) and (3). Importantly, Clause 5(2) explains that the Tables are function-based rather than diagnosis-based (Clause 5(2)(b)), and describes functional activities, abilities, symptoms and limitations - Clause 5(2)(c). Consequently, the Impairment Tables are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions - Clause 5(2)(d).

16. The impairment of a person is assessed on the basis of what a person can or could do, and not on what the person chooses to do or what others do for them - Clause 6(1).

17. An Impairment Rating can only be assigned to an impairment if the condition causing the impairment is permanent and the resulting impairment is likely to persist for more than two years - Clause 6(3).

18. To be a permanent condition, it must be:

    (a)Fully diagnosed by a medical practitioner;

    (b)Fully treated; and

    (c)Fully stabilised;

    and more likely than not to persist for more than two years - Clause 6(4).

19. In determining whether a condition has been fully diagnosed and fully treated, the Tribunal is required to consider whether there is corroborating evidence of the condition, what treatment or rehabilitation has occurred and whether treatment is continuing or planned for the next two years - Clause 6(5).

20. A condition is fully stabilised if one of two circumstances is satisfied. First, the person has undertaken reasonable treatment and further reasonable treatment is unlikely to result in significant functional improvement enabling the person to work in the next two years. Second, where a person has not undertaken reasonable treatment, but significant improvement of the above type is not expected even if reasonable treatment were undertaken or if there is a medical or compelling reason for not undertaking such treatment - Clause 6(6).

21. “Reasonable Treatment” is defined in the Impairment Tables Determination as being treatment that:

    (a)Is available at a location reasonable accessible to the person;

    (b)Is at a reasonable cost;

    (c)Can reliably be expected to result in a substantial improvement in functional capacity;

    (d)Is regularly undertaken or performed;

    (e)Has a high success rate; and

    (f)Carries a low risk to the person.[8]

    [8] Impairment Tables Determination s 6(7).

22. A key requirement for consideration in this matter is to be found in Schedule 2, Part 2, Clause 4 of the Social Security Administration Act 1999 (Cth). This provision provides that a DSP claim must be assessed on the person’s medical conditions within 13 weeks from the date the claim is made.

23. This requirement was explained by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at Folio 34 as follows:

    “In the Tribunal’s consideration as to whether a condition has been stabilised and is likely to persist for the foreseeable future, the Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all of the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly preferred by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances”.

    CONSIDERATION

    Hepatitis C, Hemochromatosis, Liver Fibrosis, Severe Obstructive Sleep Apnoea, Chronic Fatigue

24. The Department concedes, and I accept, that the Respondent has impairments for the purposes of paragraph 94(1)(a) of the Act, namely Hepatitis C, hemochromatosis and liver fibrosis, together with severe obstructive sleep apnoea and chronic fatigue.[9] The Department concedes that the Respondent’s Hepatitis C, hemochromatosis and liver fibrosis conditions were fully diagnosed, fully treated and fully stabilised at the Qualification Period and as such any impairment arising from these conditions is capable of being rated under the Impairment Tables Determination.[10]

    [9] Secretary’s Statement of Facts & Contentions dated 25 September 2018, paragraph 30.

    [10] Secretary’s Statement of Facts & Contentions dated 25 September 2018, paragraph 31.

25. The Department’s submissions contend, however, that while the Respondent’s severe obstructive sleep apnoea condition was fully diagnosed, it was not fully treated and fully stabilised as at the Qualification Period and, as such, any impairment arising from that condition cannot be rated under the Impairment Tables Determination.[11]

    [11] Secretary’s Statement of Facts & Contentions dated 25 September 2018, paragraph 32.

26. I will now consider whether the Respondent’s impairments can attract Impairment Ratings under the Impairment Tables during the Qualification Period.

27. The Respondent has co-existing conditions, some of which are fully diagnosed, fully treated and fully stabilised and others which are fully diagnosed but not fully treated and fully stabilised, and the symptoms of which together cannot be severed entirely from comorbid existing symptoms of fatigue. It is therefore necessary, given the circumstances in this matter, to examine the historical medical records relative to the Qualification Period.

28. The Tribunal notes the following medical evidence concerning the Respondent’s Hepatitis C, hemochromatosis, liver fibrosis, chronic fatigue and severe obstructive sleep apnoea conditions relevant to the Qualification Period.

29. In a report dated 9 June 2016, Dr Mazhar Haque, a Gastroenterologist, reported the Respondent suffered from Hepatitis C, fatty liver, possible hemochromatosis and impaired glucose tolerance.[12] Dr Haque recommended the Respondent undertake a fibro scan to determine his cirrhotic status and undertake Harvoni treatment for his Hepatitis C condition.

    [12] Supplementary T Documents 24, Folios 49 to 50.

30. On a sleep study report dated 27 June 2016, Dr Sean L Tolhurst, a Respiratory and Sleep Physician, reported that the Respondent suffered from severe obstructive sleep apnoea and Dr Tolhurst further recommended the Respondent undertake a CPAP titration study.[13]

    [13] Supplementary T Documents 25, Folio 51.

31. On 5 August 2016, Dr Jim Griffin, a General Practitioner, in a Medical Certificate, reported that the Respondent suffered from cirrhosis, hemochromatosis and Hepatitis C. He further stated the conditions were permanent and caused ‘chronic fatigue’.[14]

    [14] T Documents 36, Folio 198.

32. Dr Haque reported that the Respondent suffered from advanced fibrosis or early cirrhosis in a report dated 6 September 2016. He again recommended that the Respondent commence Harvoni treatment.[15]

    [15] Supplementary T Documents 29, Folio 57.

33. On 28 September 2016, Dr Alan Woolard, a General Practitioner, in a Medical Certificate, reported that the Respondent suffered from cirrhosis, hemochromatosis and Hepatitis C and he stated that the conditions were permanent and caused ‘chronic fatigue and inability to concentrate’.[16]

    [16] T Documents 39, Folio 201.

34. Dr Haque, in a report dated 27 October 2017, reported that the Respondent was doing very well on Harvoni, however, he was still feeling ‘a bit tired’.[17]

    [17] Supplementary T Documents 33, Folio 62.

35. On 18 July 2017, Dr Haque reported that the Respondent had achieved sustained virologic response after 12 weeks of Harvoni treatment.[18] He also stated that the Respondent’s Hepatitis C condition was fully treated and fully stabilised and he noted that the Respondent still suffered from ‘some tiredness’. He further noted in that report that the Respondent’s liver function tests were essentially normal.

    [18] Supplementary T Documents 38, Folio 76.

36. Dr Adam Mair, a General and Acute Care Internal Medicine Physician, assessed the Respondent on 10 August 2017.[19] Dr Mair considered the impact and underlying cause of the Respondent’s symptoms, including chronic fatigue, headache and poor memory. He concluded that ‘… most of [the Respondent]’s symptoms are due to his severe untreated sleep apnoea condition...’. He recommended further that the Respondent undertake treatment for his severe obstructive sleep apnoea condition.

    [19] Supplementary T Documents 39, Folios 77 and 78.

37. In his report dated 18 October 2017, Dr Simon Anstey, an Otolaryngologist, reported that the Respondent suffered from a deviated septum that could be resolved with appropriate surgery.[20]

    [20] Supplementary T Documents 40, Folio 79.

38. On 6 November 2017, Dr Mair, in a letter, noted that the Respondent had decided not to go ahead with further sleep apnoea treatment.[21]

    [21] Supplementary T Documents 41, Folio 80.

39. On 1 May 2018, a report was prepared by Dr Zoe Scounos, a Sleep Physician, following a home diagnostic study, which reported that the Respondent was suffering from severe obstructive sleep apnoea and Dr Scounos recommended a review by a Sleep Physician and CPAP therapy.[22]

    [22] Supplementary T Documents 45, Folios 90 and 91.

40. Dr Haque, in a medical report dated 8 May 2018, stated that he was unsure as to whether the Respondent’s fatigue is caused by the liver fibrosis condition and also noted the sleep apnoea condition may be the cause of that impairment.[23]

    [23] Supplementary T Documents 46, Folio 93.

41. In a report dated 27 July 2018, Dr Jones, retained by the Department, reviewed the medical evidence associated with the Respondent’s claim and found that the Respondent’s Hepatitis C, hemochromatosis and liver fibrosis conditions were fully diagnosed, fully treated and fully stabilised.[24]

    [24] Attachment “A” to the Secretary’s Statement of Facts, Issues & Contentions.

42. Dr Jones opined, however, that the Respondent’s symptomatic fatigue was not fully treated and fully stabilised at the Qualification Period as that fatigue was most likely factorial, deriving from the combination of the Hepatitis C infection, obstructive sleep apnoea, deconditioning and psychosocial factors such as illness beliefs. Dr Jones also found that the Respondent’s severe obstructive sleep apnoea condition was not fully treated and fully stabilised at the Qualification Period. Dr Jones considered that the treatment for the sleep apnoea, if undertaken, would likely result in an improvement in the Respondent’s fatigue symptoms within a few weeks.

43. On 23 August 2018, in a medical report, Dr Sajid Qamar, a General Physician, reported that the Respondent started CPAP therapy in June 2018.[25] It was stated that the Respondent did not report any improvement in his symptoms since commencing treatment.

    [25] Attachment “B” to the Secretary’s Statement of Facts, Issues & Contentions.

44. The Tribunal notes that the Respondent received a diagnosis of severe obstructive sleep apnoea as early as July 2016 and only commenced treatment for that condition in June 2018, some two years after diagnosis and some 16 months after the Qualification Period.[26]

    [26] Attachment “B” to the Secretary’s Statement of Facts, Issues & Contentions.

45. It is also interesting to note that when the Respondent underwent the sleep study which gave rise to the report by Dr Zoe Scounos, the Respondent:

    “Rated his quality of sleep on the study night as average, awakening feeling refreshed”.[27]

    [27] Supplementary T Documents 45, Folio 90; ibid.

46. Also, the Respondent’s evidence to this Tribunal was that the sleep apnoea events since he had been using the CPAP machine had reduced down to three events per hour.[28] However, when asked by Mr Warren on behalf of the Department about the problem with his septum, the Respondent stated:

    “Well, that - that’s neither here nor there; he said, “that won’t change anything with your OSA because it’s only minor.”

    [28] See Transcript, page 12.

1. It is not clear to the Tribunal as to who proffered this advice. However, it is to be noted that Dr Anstey in his report of 18 October 2017 recommended rectification of the issue. The Tribunal views this as an indication that this was a condition that may have been contributing in the minds of the Respondent’s treaters to his fatigue condition which would have been extant in an untreated state during the Qualification Period.

2. The Tribunal accepts the Department’s submissions that the Respondent’s symptomatic fatigue or chronic fatigue condition was not fully treated or fully stabilised as at the Qualification Period because the medical evidence available to the Tribunal clearly indicates that treatment for these conditions was still ongoing after the Qualification Period. Indeed, one of the treatments for the condition, namely CPAP therapy, was not commenced until June 2018 as indicated in the report of Dr Qamar of 23 August 2018.[29]

   [29] See Attachment “B” to the Secretary’s Statement of Facts, Issues & Contentions; ibid.

3. Further, as late as May 2018, Dr Haque, the Respondent’s treating Gastroenterologist, stated he could not be sure that the Respondent’s fatigue was caused by the liver fibrosis condition. Dr Haque further noted that by 18 July 2017 just over one month after the Qualification Period, that the Respondent’s liver function was shown to be normal, which finding presumably informed his later view in May 2018 noted above.

4. Dr Jones’ evidence, by way of his review of the medical evidence during the Qualification Period and following, was corroborative of the Department’s contention that the fatigue conditions had not been fully treated and fully stabilised as at the Qualification Period. This report[30] indicated that the fatigue suffered by the Respondent was most likely derived from a combination of the hepatic conditions, the sleep apnoea condition and deconditioning and psychosocial factors such as illness belief. Dr Jones reaffirmed this view when questioned by the Respondent at Hearing.[31] Dr Jones’ report also confirmed that he considered the Respondent’s sleep apnoea not to be fully treated and stabilised prior to or during the Qualification Period.[32] The report also noted that Dr Anstey’s recommendation for corrective surgery of the Respondent’s septum would be likely to assist with nasal breathing at night and ‘might also be expected to result in some fairly immediate symptomatic improvement in his sleep patterns and thereafter fatigue levels’.[33]

   [30] Attachment “A” to the Secretary’s Statement of Facts, Issues & Contentions.

   [31] Transcript, page 38, lines 30 to 41.

   [32] Ibid page 9.

   [33] Ibid page 8(h).

5. The Respondent provided evidence to the Tribunal at Hearing and it is to be noted that many of his answers under cross-examination by Mr Warren, to quite simple and straightforward questions, carry a degree of obfuscation which was, at times, difficult to understand. The Respondent, when asked by Mr Warren regarding some current employment, confirmed he had been engaged in work for 68 hours and 75 hours in two separate fortnights ending on 24 October 2018 and 7 November 2018 respectively.[34] For a question that required either a yes or no answer, it took some two pages of transcript to elicit the answer.[35] As the question was relating to the Respondent’s work capacity, the Tribunal could not but help form the view that the Respondent was not at all enthusiastic to engage deeply in that topic.

   [34] See Exhibit 6, Statement of Earnings.

   [35] Transcript, pages 27 and 28.

6. The Respondent’s evidence generally indicated that the medical opinion could not isolate any one cause of his fatigue condition but that he suffered from it and that it caused him to be debilitated sufficiently to lead him to seek DSP. He failed to understand seemingly, that it was essential that reasonable treatments available to him as suggested by his medical advisors had to be undertaken before the condition could be considered fully treated and stabilised to be capable of being assigned an Impairment Rating under the appropriate Impairment Tables.

7. The Respondent in his evidence at Hearing[36] indicated that he effectively did not accept that part of the cause of his fatigue condition could be related to ‘psychological issues as touched upon by Dr Jones in his report of 27 July 2018’[37] where he states:

   “There are specific therapeutic interventions which can be undertaken for symptomatic fatigue, including cognitive behaviour therapy and exercise programs to assist with the deconditioning resulting from reduced activity levels.”

   [36] Transcript page 41, lines 5 to 25.

   [37] Ibid page 7.

8. The Respondent stated that he had been turning up for work, albeit for a short-term contract, and this indicated that he was dealing with the issues identified by Dr Jones on his own terms. Whilst this is a commendable effort on the part of the Respondent, it does not address the potential issues Dr Jones was referring to, namely:

   “Physical deconditioning, and psychological influences, such as illness beliefs which prevent drawing a conclusion that normal liver function tests should equate to resolution of any associated fatigue symptoms.”

9. In other words, there may be other causes beyond the fully diagnosed, fully treated and fully stabilised liver conditions that need to be fully diagnosed, fully treated and fully stabilised before any Impairment Rating can be assigned to the Respondent’s fatigue conditions under the Impairment Tables. It is clear to this Tribunal that Dr Jones felt that the Respondent could benefit from treatments to assist him to cope with the fatigue that affected him whilst at work and generally.

10. This Tribunal considers that the Respondent is suffering from combined conditions of which some are fully diagnosed, fully treated and fully stabilised, namely the Hepatitis C, hemochromatosis and liver fibrosis conditions, and others that, at the Qualification Period, were not fully treated and fully stabilised. The evidence before the Tribunal indicates that at the Qualification Period, it was not possible to define any functional impact of the fully diagnosed, fully treated and fully stabilised Hepatitis C, hemochromatosis and liver fibrosis conditions as distinct and severable from that of the comorbid fatigue symptoms which were then untreated. Thus, the Tribunal is not able to assign an Impairment Rating greater than zero to any functional impact caused by the Respondent’s fully diagnosed, fully treated and fully stabilised conditions as it cannot on the evidence before it, be satisfied of the degree to which those conditions, and only those conditions, cause the reported functional impacts. The Tribunal considers that the principle enunciated in the case of Pignat and Secretary, Department of Social Services (2017) AATA 2745 is applicable to the circumstances in this matter and thus, any impairment arising from the Respondent’s Hepatitis C, hemochromatosis and liver fibrosis conditions cannot be assigned any points greater than zero under Table 1 of the Impairment Table Determination.

    Other Conditions (Back Pain, Numbness in Hands, Poor Concentration)

11. Other than for the two Medical Certificates of Dr Woolard dated 11 January 2017 and 11 July 2017 respectively[38] which report lumbar disc degeneration and numbness in the respondent’s hands, the Tribunal has no evidence before it which addresses these conditions, the extent of their progress, any treatment suggested or applied, and any likely prognosis. The Tribunal is therefore unable to form any view as to whether these conditions are fully treated and fully stabilised as at the Qualification Period.

    [38] T Documents 41, Folios 203 and 245.

12. The Respondent’s poor concentration and memory conditions have been referred to by his treating General Practitioner, Dr Woolard, in a Certificate dated 13 April 2017.[39] However, the Tribunal has only that evidence before it relative to that condition and is therefore unable to form any view as to whether that condition was fully diagnosed, fully treated and fully stabilised as at the Qualification Period.

    [39] T Documents 44, Folio 236.

    CONCLUSION

13. On the evidence before me, I am satisfied that the Respondent’s Hepatitis C, hemochromatosis and fibrous liver conditions were fully diagnosed, fully treated and fully stabilised at the Qualification Period.

14. However, I cannot be satisfied that the Respondent’s comorbid fatigue condition was fully diagnosed, fully treated and fully stabilised as at the Qualification Period.

15. I am not able to be satisfied, given the medical evidence as at the Qualification Period and latterly confirmed by the report of Dr Jones, that it was possible to attribute the Respondent’s impairment to the fully diagnosed, fully treated and fully stabilised Hepatitis C, hemochromatosis and/or liver fibrosis conditions when these conditions were comorbid with the fatigue condition which, at that time (the Qualification Period) was untreated. Also, it is clear from the medical evidence that, until the fatigue condition had been fully treated by CPAP therapy, correction of the respondent’s deviated septum, and cognitive behaviour therapy, it was not, on the balance of probabilities, possible to assign a cause for the Respondent’s fatigue condition to any or all of his complaints to a particular degree.

16. The Respondent had not undertaken any of the reasonable treatments available to him for his fatigue condition as at the Qualification Period.

17. I am therefore, based on the evidence before me relevant to the Qualification Period, unable to conclude that any impairment points can be assigned to the Respondent’s conditions.

18. As the Respondent does not have a total of 20 or more impairment points under the Impairment Tables Determination, he does not satisfy the requirement under paragraph 94(1)(b) of the Act. Therefore, the Respondent does not qualify for DSP as at the Qualification Period.

19. Given that the Respondent does not satisfy the requirement under paragraph 94(1)(b) of the Act, it is not necessary for me to consider whether he had a continuing ability to work at the Qualification Period.

    DECISION

20. The decision of the Administrative Appeals Tribunal Social Services and Child Support Division (AAT1) dated 2 November 2017 is set aside and is substituted by a decision that the Respondent did not satisfy paragraphs 94(1)(b) and (c) of the Act and was thus did not qualify for DSP at the date of his claim, namely 2 March 2017.

I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

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Associate

Dated: 12 February 2020

Date of hearing:	14 November 2018
Applicant:	By telephone
Solicitor for the Respondent:	Mr Nicholas Warren, Department of Human Services