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

Spear and Secretary, Department of Social Services (Social services second review) [2023] AATA 1882 (29 June 2023)
Division:GENERAL DIVISION
File Number:2022/6545
Re:Geoffrey Spear
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:29 June 2023
Place:Brisbane

The decision under review is affirmed.
...............................[SGD]..................................
Member D Mitchell

Catchwords
SOCIAL SECURITY – disability support pension – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
Legislation
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
29 June 2023
INTRODUCTION

On 27 May 2021, Mr Geoffrey Spear (the Applicant) lodged a claim for the Disability Support Pension (DSP).[1] The Applicant’s claim for the DSP, listed his disabilities or medical conditions that significantly affect his ability to work to include “chronic heart disease, cardiomyopathy, emphysematous – lungs and subpleural bullae – lungs”[2]
[1] Exhibit 1, T Documents, T50, pages 243-272, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents, T50, page 266, Claim for Disability Support Pension.
On 13 June 2021,[3] the Applicant’s claim was rejected on the basis that he did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T55, pages 273-275, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision. On 22 November, an Authorised Review Officer (ARO) affirmed the decision.[4] The ARO found that the Applicant’s cardiomyopathy and emphysema were fully diagnosed but not fully treated and fully stabilised and therefore, could not be assigned an impairment rating.[5]
[4] Exhibit 1, T Documents, T63, pages 307-311, Authorised Review Officer Decision and Notes.
[5] Exhibit 1, T Documents, T63, pages 307-311, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD).[6]
[6] Exhibit 1, T Documents, T70, pages 332-333, Request for Statement from the SSCSD.
On 29 June 2022, the SSCSD affirmed the decision to refuse the Applicant’s claim for the DSP.[7]
[7] Exhibit 1, T Documents, T2, pages 7-17, Decision of the SSCSD.
On 3 August 2022, the Applicant made an application for a second-tier review of this matter by the General Division of this Tribunal.[8]
[8] Exhibit 1, T Documents, T1, pages 1-6, Application for Review.
On 2 June 2023, a Hearing was held for this application. At the Hearing, the Applicant appeared by telephone, was self-represented and gave evidence under affirmation.
The issue to be determined by the Tribunal is whether the Applicant is entitled to receive the DSP at the date of his claim or within 13 weeks thereafter.
THE LAW
The relevant law in assessing a person’s qualification for the DSP is found in the
Social Security Act 1991 (Cth) (the Act), the Social Security (Administration) Act1999 (Cth) (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (the Determination). Following is a summary of the key requirements which relate to the Applicant’s application.
Section 94 of the Act prescribes the criteria that must be met in order to qualify for the payment of the DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[9]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[10] and
3.does the Applicant have a continuing inability to work?[11]
[9]     Section 94(1)(a) of the Act.
[10]    Section 94(1)(b) of the Act.
[11]    Section 94(1)(c)(i) of the Act.
Under the Determination, an impairment rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent”.[12]
[12] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of the DSP. To be considered permanent for the DSP, a condition must be fully diagnosed by an appropriately qualified medical practitioner; be fully treated; be fully stabilised; and be more likely than not, in light of the available evidence, to persist for more than 2 years.[13] As such, a condition could be considered permanent from the perspective of it being life-long but would not meet the definition under the DSP requirements.
[13] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or is planned in the next two years.[14]
[14] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[15]
(a)either the person has undertaken reasonable treatment for the condition and any further reasonable treatment is unlikely to result in significant functional improvement to a level enabling the person to undertake work in the next 2 years; or
(b)the person has not undertaken reasonable treatment for the condition and:
(i)significant functional improvement to a level enabling the person to undertake work in the next 2 years is not expected to result, even if the person undertakes reasonable treatment; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[15] Section 6(6) of the Determination.
Reasonable treatment is treatment that is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[16]
[16] Section 6(7) of the Determination.
The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[17] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[18]
[17] Section 6(2) of the Determination.
[18] Section 8(1) of the Determination.
In order to have a continuing inability to work, which is required to satisfy section 94(1)(c) of the Act, a person must meet the criteria of section 94(2), which requires that a person must:
(a)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(b)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(c)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a POS within the next 2 years.
A person’s impairment is considered to be a severe impairment if the person’s impairment can be assigned 20 points or more under a single Impairment Table.[19]
[19] Section 94(3B) of the Act.
The Administration Act sets out that qualification for the DSP and therefore, assessment of the relevant impairment ratings is to be determined at the date of claim or, where a person is not qualified on that date but becomes qualified within 13 weeks of lodging the claim, in which case, the start date for the DSP is the date the person becomes qualified.[20]
[20] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
The Federal Court and the Tribunal have concluded that there is a requirement to look at the Applicant’s circumstances as they were, and the evidence that was available at the time of the application for the DSP and the 13 weeks which followed it (the Relevant Period). Further, medical and other evidence that is provided outside of the Relevant Period may be considered; however, only insofar as it is referrable to an Applicant’s condition during the Relevant Period.[21]
[21] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922,[34]; Fanning and Secretary, Department of Social Services [2014] AATA 447 at [34]-[35]; ; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
RELEVANT PERIOD
The Relevant Period in this matter commenced on 27 May 2021, the date the Applicant lodged his claim for DSP and ended 13 weeks later on 26 August 2021. The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were during the Relevant Period.
ISSUES
Based on the evidence before the Tribunal, it is clear that the Applicant had impairments during the Relevant Period and therefore, has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[22] The Respondent considers the Applicant’s impairments, for the purposes of the claim for the DSP in question, consist of heart and lung,[23] right elbow,[24] mental health[25] and spinal[26] conditions.
[22]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 7, paragraph 38.
[23]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-11, paragraphs 40-57.
[24]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-13, paragraphs 58-63.
[25]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 13-15, paragraphs 64-80.
[26]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 15-16, paragraphs 81-87.
The remaining issues for the Tribunal to consider are:
1.whether, within the Relevant Period, the Applicant’s conditions attracted 20 points or more under the Impairment Tables; and, if so
2.did the Applicant have a continuing inability to work?
EVIDENCE
The Tribunal notes that there is a large volume of medical material entered as evidence before it. It is noted that a lot of that evidence was not available to the original decision maker, ARO or SSCSD. Throughout the present Tribunal process, the Respondent sought an opinion in relation to the Applicant’s claim for the DSP from the Health Professional Advisory Unit (HPAU) to consider the additional evidence. As a result, an initial HPAU report dated 3 March 2022[27] and supplementary HPAU[28] report dated 27 March 2023 were provided by Dr Sandra Armstrong.
[27] Exhibit 2, Supplementary T Documents, ST13, pages 43-57, Health Professional Advisory Unit Report.
[28] Exhibit 2, Supplementary T Documents, ST15, pages 60-62, Supplementary Health Professional Advisory Unit Report.
The Tribunal has had the opportunity to review the evidence before it in totality and considers that the summary of that evidence as outlined in the HPAU Reports completed by Dr Armstrong, accurately reflects the situation.
Applicant’s evidence
At the Hearing, the Applicant told the Tribunal that:
·His heart condition was not just cardiomyopathy but that he has aortic root dilation, lots of pain in his chest, cannot sleep at night and that his heart runs fast.
·He experiences shortness of breath on stairs and drives everywhere.
·His lung condition is more than emphysema, he also has a lung bullae bubble on his right lung.
·His right lung does not expand and retract fully.
·He has been referred back to the hospital for his lung condition.
·Dr Lubke sent him on a wild goose chase to find other conditions and his reports were inaccurate.
·He lives alone.
·His last day of work was in April 2021.
·He could not work anymore due to problems with medication.
·His heart can be at 130 beats per minute while he is making his breakfast.
·His heart skips beats or double beats.
·During the Relevant Period he was sleeping a lot and was depressed, he could not do much at all.
·Since November 2022, he has been experiencing boils for which he has had to be hospitalised for.
·He could walk around a shopping centre or supermarket without assistance, however, would need to take rests, especially if he had to carry anything.
·He could walk from the carpark into a shopping centre or supermarket without assistance.
·He did not think that using public transport without assistance would be a problem.
·He could perform light household activities.
·Doing housework took a lot of effort but he could get it done with lots of rests.
·He has not cleaned his shower or bathroom because it would take a lot out of him.
·His right elbow aches in the cold but he is used to it and it does not stop him from doing anything he wants to.
·He worked for 8 years after his elbow injury in a cleaning job and then for a glass company.
·He is not able to afford to eat properly so he is very thin - ‘skin and bones’.
·He had no idea about his spinal condition as he had only recently found out that he had scoliosis.
·He thought he would be getting more help for his conditions but feels like he just gets palmed off.
·He first saw Dr Day for his mental health last year as it took 6 months to get an appointment.
·He has moved from Cairns and now only has his daughter and grandson that he sees other than one friend he has locally.
·He lives alone in community housing.
·He would work if he could however, he would be flat out working 3 hours a day.
·He needs to work on his health and get rid of the stress.
·He has a car and drives everywhere.
·Anything that Dr Lubke said should be disregarded.
·He does not understand why it matters whether he could use public transport, he has a car.
HPAU Report
In a report dated 3 March 2022, Dr Armstrong of the Respondent’s HPAU outlined that her opinion had been provided in accordance with the Guidelines for Persons Giving Expert and Opinion Evidence issued by the Tribunal. Dr Armstrong also provided that the opinion in the report was based on a file review and detailed analysis of the referenced documents and when applicable, discussions with treating health professionals, however she had not interviewed or examined the Applicant.[29]
[29] Exhibit 2, Supplementary T Documents, ST13, page 43, Health Professional Advisory Unit Report.
Having analysed the evidence before her, Dr Armstrong provided the following discussion and opinion:[30]
[30]    Exhibit 2, Supplementary T Documents, ST13, pages 44-47, Health Professional Advisory Unit Report.
Dilated cardiomyopathy and emphysema
[The Applicant] was first diagnosed with a dilated cardiomyopathy (enlargement and weakening of the left ventricle, leading to an inability to pump blood effectively) and emphysema, subsequent to a 28/3/21 ED (Emergency Department) presentation, when he reported recurrent right sided chest pain. A 30/3/21 echocardiogram showed an ejection fraction (EF) of 35%. Ejection fraction is a measurement of the percentage of blood leaving the heart (usually only the left ventricle is measured) each time it contracts. A normal ejection fraction is between 50-70%. An 8/4/21 letter by Associate Prof K Singh cardiologist indicates that [the Applicant] most likely has a dilated cardiomyopathy, with globally reduced moderate to severe left ventricular dysfunction, with moderate dilation of the left ventricle. Dr K Singh recommended commencing bisoprolol and perindopril (both are medications used in the treatment of heart failure). [The Applicant] had to cease perindopril after he developed an allergic-type reaction. A 14/5/21 coronary angiogram showed angiographically normal coronary arteries with severe left ventricle systolic dysfunction and continued medical management for heart failure was recommended with bisoprolol, spironolactone and digoxin. A 13/8/21 (2 weeks prior to the end of the qualification period) transthoracic echocardiogram showed an ejection fraction of 42% and a normally sized left ventricle with mild impairment of systolic function. A 20/10/21 letter by Dr K Singh states that [The Applicant’s] condition is stable and he expected to see improvement with medical therapy. However, I consider that his dilated cardiomyopathy condition was fully diagnosed, treated and stabilised, as of the qualification period, as it had been appropriately investigated and treated, and the improvement in systolic function demonstrated in the second echocardiogram was unlikely to significantly further improve. Furthermore a 9/3/22 letter states that [the Applicant’s] ejection fraction was now 40% and was unlikely to improve any further.
A chest CT taken during [the Applicant’s] 28/3/21 ED presentation showed bilateral paraseptal and centrilobular emphysema, with large sub-pleural bullae (large air pockets that form inside the lung usually due to emphysema) in both lungs. [The Applicant] was advised to cease smoking and vaping, due to the risk of rupturing delicate lung bullae. The 24/8/21 (2 days before then of the qualification period) letter from Dr Garg states that [the Applicant] had had a pneumothorax (a collapsed lung that occurs when air enters into the pleural cavity space between the lungs and chest wall) in 2008 and subsequently had a VATS pleurodesis (a procedure to obliterate the pleural cavity). Dr Garg indicated that [the Applicant’s] respiratory function tests (RFTs) showed normal spirometry and a mild reduction in CO (carbon monoxide) gas transfer. CO gas transfer is a measure of how well oxygen and carbon dioxide are transferred between the lungs and the blood and is usually reduced in emphysema. The 10/9/21 letter by Dr Garg reports that the repeat CT chest shows background emphysema. A 22/12/22 letter by Dr L Vaitiekunas, a respiratory registrar at GCUH states that recent RFTs were in keeping with mild obstructive lung disease with mild gas exchange reduction and no reversibility (with bronchodilator agents). I consider that [the Applicant’s] emphysema was fully diagnosed, treated and stabilised, as of the qualification period, as Dr Garg’s recommended treatments were smoking cessation and commencing light exercise. [The Applicant] had apparently reduced his tobacco intake prior to seeing Dr Garg. Smoking cessation does not tend to improve respiratory function in emphysema, but rather slows the rate of decline in respiratory function. An exercise programme would be undertaken with the aim to maintain exercise capacity, rather than significantly improving it.
I consider that the impact on [the Applicant’s] exercise capacity from both his cardiomyopathy and emphysema can be assessed together, as they both have the same functional impact. A 30/6/21 medical certificate by Dr Bhatnagar stated that [the Applicant] had tiredness, shortness of breath and chest pain. I note that Dr Garg’s 10/9/21 letter states that he had no ongoing lung condition to explain his chest discomfort and indicated “guess it is more muscular in nature”. A 3/11/21 certificate by Dr Bhatnagar states that [the Applicant] cannot walk more than 50m unaided, but this seems inconsistent with the other medical evidence confirming that he has mild impairment of systolic function and mild obstructive lung disease. I attempted to clarify this in a discussion with Dr Bhatnagar on 21/2/23, but he could not recall [the Applicant] and no longer had his notes to refer to.
In a 10/5/22 JCA interview [the Applicant] reported that he needed to walk uphill, rather than run and his breathing was “heavier”. The assessor spoke to Dr K Singh who said he likely could manage some light work duties. In the 29/6/22 AAT1 hearing [the Applicant] reported that in May 2021 he could walk for 10-15 minutes only due to shortness of breath and chest tightness, lived alone and could change his bed. The 22/12/22 letter by Dr L Vaitiekunas indicates that [the Applicant] had NYHA (New York Heart Association) Class 2 symptoms1   Class 2 symptoms are defined as: “Slight limitation of physical activity. Comfortable at rest. Ordinary physical activity results in fatigue, palpitation and shortness of breath”. I spoke to [the Applicant’s] current GP Dr Lubke on 23/2/23 and he told me that [the Applicant] “reported being short of breath after walking up stairs or up a steep driveway, would not need assistance (from others) to walk around a supermarket, but might need a break to rest, he could use public transport if he didn’t have far to walk to the bus stop and could do light housework, but again might need a break to rest”. Dr Lubke was of the opinion that [the Applicant] could do a continuous shift of 3 hours of sedentary work. The more specific evidence discussed in this paragraph is dated after the end of the qualification period, but I consider that it is still relevant to that time, as the evidence does not indicate any significant improvement or deterioration during that time. I therefore consider that the appropriate impairment rating for [the Applicant] under Table 1 (Functions requiring Physical Exertion and Stamina) was 10 points as of the qualification period, as he experienced frequent symptoms (shortness of breath and fatigue) when performing day to day activities, and was unable to walk far outside his home. The descriptors at the severe/20 point impairment rating were not met, as [the Applicant] did not need assistance (from others) to walk around a supermarket, use public transport, could perform light day to day household activities and would be able to sustain a continuous shift of sedentary-type work for at least 3 hours.
Right lateral epicondylitis
A 28/2/11 letter by Dr S Coll, an orthopaedic surgeon indicates that she performed an open tenotomy and tennis elbow release, and noted that the tendon was 75% avulsed from the bone. 13/3/12 and 24/9/12 medical certificates by a GP, Dr M Clarkson states that [the Applicant] had right elbow lateral epicondylitis (also known as tennis elbow or common extensor tendinopathy), he was still having physiotherapy and surgery had failed. A 25/11/13 medicolegal report by Dr P Johnstone, an orthopaedic surgeon indicates that [the Applicant] injured his right elbow on 13/9/10, while he was working as a window and door framer, and lifting door panels. Dr Johnstone stated that [the Applicant] was right handed and had a full range of movement of his right elbow with no lateral epicondyle tenderness, but continued to have mild, but persistent symptoms. A 25/11/13 MRI showed low grade common extensor origin enthesopathy (a disorder involving the attachment of a tendon or ligament to a bone) and Dr Johnstone suggested there may have been inadequate surgical decompression. Dr Johnstone was of the opinion that the right tennis elbow might benefit from further treatment including: use of lithotripsy (there is limited current evidence of benefit from this therapy) and revision surgery of the lateral epicondyle to debride residual tearing of the common extensor origin and repair the common extensor origin, and he thought further treatment had a reasonable probability of improving [the Applicant’s] residual symptoms. [The Applicant] was referred to Dr R Pozzi, an orthopaedic surgeon on 18/3/14 for an assessment of his ongoing pain and limitation of activities due to his right tennis elbow, but there is no provided evidence about the outcome of this referral.
A 22/9/16 medical certificate by Dr J Hudson, a GP reported that [the Applicant] had calcific tendinopathy (formation of calcium deposits in a tendon) of the right triceps (an extensor muscle of the elbow) with chronic pain and an onset of 2010. In a 13/12/16 JCA interview, [the Applicant] stated that he was on the waiting list for the orthopaedic clinic at GCUH and he had not had the previously reported treatment of ultrasound for some years. A 30/8/17 right elbow MRI showed marked tendinopathy of the common extensor tendon and a 12/9/17 certificate by Dr Hudson indicated that further surgery was possible. In an 18/1/18 ESAT (Employment Service Assessment) interview [the Applicant] stated that he was seeing a surgeon in a few weeks, however the outcome of this assessment is also not known.
A 23/10/20 right elbow X-ray was unremarkable and an ultrasound showed a partial thickness tear of the common extensor origin on a background of focal tendinosis and this was thought to be amenable to ultrasound guided PRP (platelet-rich plasma) treatment. Again, it is not known if [the Applicant] underwent this treatment, but thus far PRP treatment only has low level evidence in regards to its efficacy. The provided medical evidence does not subsequently refer to this condition. In the 29/6/22 AAT1 hearing, [the Applicant] reported that he had returned to work after the recovery of his elbow condition, and had “the odd pain now and again” and he avoided heavy lifting. I consider that his right lateral epicondylitis condition was fully diagnosed, treated and stabilised, as it was long-standing, he had previously had appropriate treatment and as it had been 10 years since the initial onset further treatment was unlikely to result in significant improvement. However, I agree with the AAT1 decision that there is insufficient provided contemporaneous medical evidence to support allocation of an impairment rating for this condition.
Psychological conditions
A 5/8/13 medical certificate by Dr M Clarkson states that [the Applicant] had depression and situational stress. A 30/7/14 medicolegal report by a psychiatrist, Dr M Likely indicates a DSM 5 diagnosis of an adjustment disorder with depressed mood. [The Applicant] had seen a clinical psychological, I Williams for 10 sessions of Cognitive Behavioural Therapy, which he had found very beneficial. His GP had prescribed an antidepressant, escitalopram which had been helpful, but he ceased this after developing side-effects. [The Applicant] was not taking any psychotropic medication at the time of seeing Dr Likely, however Dr Likely was of the opinion that he had been appropriately treated and did not require further active psychiatric intervention, despite Dr Likely describing significant ongoing symptoms. The
12/9/17 certificate by Dr Hudson states that [the Applicant] had mixed anxiety and depression, but not indicate what treatment was provided.
The provided medical evidence does not subsequently refer to psychological conditions until a 12/5/21 GP mental health plan and referral letter to J Coucill, a psychologist, by Dr Bhatnagar. These documents state that [the Applicant] had anxiety and panic disorder with depression, since he had found out about his heart issues. Dr Bhatnagar asked for psychological counselling and said antidepressants were being considered. However, [the Applicant’s] MBS (Medicare Benefit Scheme) patient history from 27/5/18 until 28/10/22 do not show any claims for attending J Coucill, so it is not known if he proceeded with this referral. A 24/2/22 certificate (6 months after the end of the qualification period) by Dr Lubke indicated that [the Applicant] had depression and anxiety, with an impact for 3-12 months and was starting antidepressants. In the 29/6/22 AAT1 decision, [the Applicant] reported taking sertraline (an antidepressant). [The Applicant’s] PBS (Pharmaceutical Benefit Scheme) history from 27/5/18 until 28/10/22 shows that he was supplied with an alternative antidepressant, escitalopram 10mg on 2 occasions- 20/9/18 and 9/2/22. He was supplied with sertraline 50mg on 6 occasions from 18/3/22. A 14/10/22 letter by Dr C Day, a clinical psychologist indicates that she had seen [the Applicant] on 7 occasions since 26/8/22. Dr Day reported that he had comorbid anxiety and depression.
I consider that [the Applicant’s] psychological conditions were not fully diagnosed, treated and stabilised, as of the qualification period, so an impairment rating cannot be allocated. The introduction to Table 5 (Mental Health Function) requires that diagnosis of a psychological condition(s) must be made by a medical practitioner and confirmed by either a psychiatrist or clinical psychologist. Dr Day did not confirm [the Applicant’s] diagnosis of anxiety and depression until 12 months after the end of the qualification period. The previous 30/7/14 diagnosis of an adjustment disorder made by Dr Likely is not relevant some 7 years later. The DSM 5 definition of an adjustment disorder states that the symptoms begin with 3 months of the onset of a stressor and last no longer than 6 months after the stressor or its consequences have ceased. I note that [the Applicant] was able to return to work some years ago and only ceased work in April 2021 when he was diagnosed with cardiac and respiratory conditions.
Spinal conditions
A 9/4/13 medical certificate by Dr Clarkson indicates that [the Applicant] had a temporary acute episode of low back pain. The provided medical evidence does not further refer to low back pain, so I consider it was not fully diagnosed, treated and stabilised, as of the qualification period. A 2/5/17 medical certificate by Dr Hudson reports that [the Applicant] had chronic neck pain which was managed with analgesia. A 30/8/17 cervical spine MRI showed mild to moderate disc degeneration at C5/6 with bony foraminal narrowing, which was potentially impinging on the right C6 nerve root. In an 18/1/18 ESAT interview [the Applicant] stated that he had chronic neck pain and was having physiotherapy, but said he was mostly not too incapacitated from his neck condition. Again, the provided medical evidence does not further refer to neck pain, so I consider it was fully diagnosed (by way of the 20/8/17 MRI), but was not treated and stabilised, as of the qualification period, as there is no provided medical evidence in regards to recent treatment, prognosis and functional impact. I also note that [the Applicant’s] MBS patient history from 27/5/18 until 28/10/22 does not indicate any claims for physiotherapy attendance, although this does not exclude publicly provided physiotherapy.
Summary and work capacity
I consider that the appropriate allocation of impairment points for [the Applicant] was 10 points under Table 1 for his emphysema and dilated cardiomyopathy, as of the qualification period. His other medical conditions did not warrant an impairment rating. As [the Applicant] has not been allocated a severe/20 point rating under any one Table or a total of 20 points, the issue of a continuing inability to work does not need to be considered. However, I am of the opinion that [the Applicant] would be able to work in appropriate sedentary employment for 15- 22 hours/week, within the next 2 years. Dr Lubke was also of the opinion that [the Applicant] could work 15 hours/week or more of sedentary employment within 2 years.

The Applicant submitted further medical evidence of which Dr Armstrong was asked to review. Having reviewed that evidence, in her report dated 27 March 2023, Dr Armstrong’s stated that her view expressed in the earlier report had not changed.[31]
[31] Exhibit 2, Supplementary T Documents, ST15, pages 60-62, Supplementary Health Professional Advisory Unit Report.
CONSIDERATION
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
The Tribunal accepts the Applicant’s evidence of which is corroborated by medical evidence and is not disputed by the Respondent that his heart and lung conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Tribunal also accepts that all of the Applicant’s conditions affect his ability to undertake daily living activities and impact on both his physical and mental health. The Tribunal is, however, limited to assessing the Applicant’s eligibility for the DSP in accordance with the statutory requirements.
Heart and lung conditions
The evidence before the Tribunal clearly provides that the Applicant’s heart condition, being dilated cardiomyopathy (enlarged and weakening of the left ventricle, leading to an inability to pump blood effectively) and lung condition, being bilateral paraseptal and centrilobular emphysema, with large sub-pleural bullae in both lungs, were fully diagnosed, fully treated and fully stabilised during the Relevant Period. This position is not in dispute.[32]
[32] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 40-44.
The Tribunal notes that sections 10(5) and (6) of the Determination provides the following in relation to multiple conditions causing a common impairment:
(5) Where two or more conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.
(6)Where a common or combined impairment resulting from two or more conditions is assessed in accordance with subsection 10(5), it is inappropriate to assign a separate impairment rating for each condition as this would result in the same impairment being assessed more than once.
Example: The presence of both heart disease and chronic lung disease may each result in breathing difficulties. The overall impact on function requiring physical exertion and stamina would be a combined or common effect. In this case a single impairment rating should be assigned using Table 1.
As such the Tribunal agrees with the Respondent contention that the combined functional impact of the Applicant’s dilated cardiomyopathy and emphysema conditions should be assessed under Table 1 of the Impairment Tables.[33]
[33] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-9, paragraphs 40-48.
The Tribunal notes that Table 1 of the Impairment Tables deals with functions requiring physical exertion and stamina. Table 1 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[34]
[34] Impairment Table 1 – Functions requiring Physical Exertion and Stamina, Part 3 of the Determination.

10

There is a moderate functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:

(i)       is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or

(ii)       has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and

(b)      is able to:

(i)       use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and

(ii)       perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).

20

There is a severe functional impact on activities requiring physical exertion or stamina.

(1)      The person:

(a)      usually experiences symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing light physical activities and, due to these symptoms, the person is unable to:

(i)       walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or

(ii)       walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or

(iii)      use public transport without assistance; or

(iv)      perform light day to day household activities (e.g. folding and putting away laundry or light gardening); and

(b)      has or is likely to have difficulty sustaining work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.

The Respondent contended that the Applicant’s heart and lung conditions could not be assessed at more than 10 points under Table 1 of the Impairment Tables.[35] The Respondent relied on the following contentions:[36]
[35] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 9, paragraph 48.
[36] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 50-57.
50.The Secretary notes that ‘assistance’ means assistance from another person, rather than any aids or equipment the person has and usually uses, as provided in the Guide at instruction [3.6.3.10] (see also Secretary, Department of Social Services v Doherty [2022] FCA 1242).
51.The Secretary contends that to attract a severe impairment rating a person must satisfy one of the descriptors under (1)(a) in addition to the descriptor at (1)(b). The Secretary contends there is no evidence that the Applicant meets any of the descriptors under descriptor (1)(a) for a severe rating.
52.The medical certificates of GP, Dr Bhatnagar, dated 2 April 2021, 9 April 2021 and 30 June 2021, state that the Applicant experienced symptoms including tiredness, chest pain and shortness of breath (T36/187-190). A letter from Dr Singh dated 21 May 2021 indicates that the Applicant had New York Heart Association (NYHA) Class 1 symptoms (ST2/2), which is defined as ‘[n]o limitation of physical activity. Ordinary physical activity does not cause undue fatigue, palpitation, dyspnea (shortness of breath)’, with independent mobility. The Secretary notes a report by Dr Vaitiekunas dated 22 December 2022 indicates that the Applicant had NYHA Class 2 symptoms (ST10/38), which is defined as ‘[s]light limitation of physical activity. Comfortable at rest. Ordinary physical activity results in fatigue, palpitation, dyspnea (shortness of breath)’. However, this report is dated outside the qualification period and therefore should not be taken into account.
53.The medical certificate of Dr Bhatnagar dated 3 November 2021 notes that the Applicant ‘cannot walk more than 50 meters without rest’ (T36/193). However, the HPAU opinion dated 3 March 2023 considered that this is inconsistent with the other medical evidence confirming he has mild impairment of systolic function and mild obstructive lung disease (ST13/45). It is also inconsistent with the Applicant’s self-reporting to the JCA assessor in the interview on 10 May 2022. The JCA noted the Applicant reported that he ‘had trouble running up hill and needed to walk and noticed breathing heavier’, but he could walk around a shopping centre (T74/343). The JCA assessor also confirmed with Professor Singh in a phone discussion that the Applicant could likely manage some light work duties.
54.This is in line with the oral evidence the Applicant provided at the AAT1 hearing on 29 June 2022, where he reported that he could walk for 10 to 15 minutes before having to stop and rest due to shortness of breath and chest tightness. He also reported that he could manage shopping as well as changing his bed (T2/10).
55.On 23 February 2023, the HPAU contacted the Applicant’s current GP, Dr Lubke, who advised that the Applicant ‘reported being short of breath after walking up stairs or up a steep driveway, would not need assistance (from others) to walk around a supermarket, but might need a break to rest, he could use public transport if he didn’t have far to walk to the bus stop and could do light housework, but again might need a break to rest’. Dr Lubke was also of the opinion that the Applicant could sustain a continuous shift of 3 hours of sedentary work (ST13/45).
56.Whilst the evidence mentioned above at [52]-[53] is dated after the end of the qualification period, the HPAU considered that it is still relevant to the qualification period, as the evidence does not indicate any significant improvement or deterioration during that time.
57.Accordingly, the Secretary contends that the Applicant’s ability to engage in activities set out above is consistent with a 10 point rating under Table 1, and it would not be open to assign an impairment rating of more than 10 points under Table 1.
At the Hearing, the Applicant told the Tribunal that during the Relevant Period, he could walk around a shopping centre or supermarket and from the carpark into a shopping centre or supermarket by himself, but that he might need to have rests. The Applicant also said he had a car and drove everywhere but did not see why he would not have been able to use public transport if he had to. The Applicant said that he could get most of his house work done but it took a lot of effort and he took lots of breaks.
Having reviewed the evidence before it and in particular considering the evidence provided by the Applicant at the Hearing, the Tribunal accepts that the Applicant’s heart and lung conditions impact upon his functionality. When assessing the functional impacts experienced by the Applicant in that regard against the descriptors of Table 1 of the Impairment Tables, the Tribunal finds that the Applicant’s heart and lung conditions can be assigned an impairment rating of 10 points.
The Applicant was during the Relevant Period independent in his mobilisation and able to perform light day to day household activities and as such his functional impairment resulting from his heart and lung conditions cannot be assigned a 20 point impairment rating.
Based on the evidence before it, the Tribunal finds that the Applicant’s heart and lung conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period and caused a common impairment that can be assigned a maximum impairment rating of 10 points on Table 1 of the Impairment Tables.
Right elbow condition
The evidence before the Tribunal provides that the Applicant’s right elbow condition being described as right elbow lateral epicondylitis (also known as tennis elbow or common extensor tendinopathy) as fully diagnosed, fully treated and fully stabilised during the Relevant Period. This finding is not in dispute.[37]
[37] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 58-59.
Consequently, the Applicant’s lower limb condition is considered permanent for the purposes of being assigned an impairment rating under the Impairment Tables.
The Respondent contended that there is no contemporaneous medical evidence referrable to the Relevant Period regarding this condition. The Respondent further contended that on the following basis the historical medical evidence does not support a finding that 3 out of 4 of descriptors (1)(a)-(d) for a 5 point rating were satisfied, but rather that evidence is more consistent with an impairment rating of 0 points under Table 2 of the Impairment Tables:[38]
(1)Medical certificates by Dr Marianne Clarkson, GP, dated 13 March 2012 and 24 September 2012 state that the Applicant had ‘pain with lifting and unable to lift > 10kg’ (T11/71-72).
(2)Employment Services Assessment Report dated 14 March 2012 notes the Applicant reported that he was able to dress independently, wash his hair, extend right arm over his head, and undertake all light domestic, shopping and driving tasks (T12/79).
(3)A medicolegal report completed by Dr Peter Johnstone, Orthopaedic Surgeon, dated 25 November 2013, states that the Applicant’s right elbow had a full range of movement without pain and had no lateral epicondyle tenderness (T15/93).
(4)JCA report dated 13 December 2016 notes the Applicant reported that he remained independent with self-care tasks including showering, dressing and household tasks (T21/116).
(5)In the AAT1 hearing on 29 June 2022, the Applicant provided oral evidence that he had returned to work after the recovery of his elbow condition, and had ‘the odd pain every now and then’ and he avoided heavy lifting (T2/11).
[38] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 12-13, paragraphs 61-63.
The Tribunal notes that Table 2 of the Impairment Tables deals with upper limb function resulting in functional impairments when performing activities requiring the use of hands or arms. Table 2 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[39]
[39] Impairment Table 2 – Upper Limb Functions, Part 3 of the Determination.

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)      The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(1)      The person 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.

The Applicant’s evidence at the Hearing was that his right elbow aches in the cold but he is used to it and it does not stop him from doing anything he wants to.
Consequently, based on the evidence before it, the Tribunal finds that the Applicant’s right elbow condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, however, can be assigned an impairment rating of zero on Table 2 of the Impairment Tables.
Mental Health Condition
The evidence before the Tribunal indicates that the Applicant’s depression and anxiety conditions were diagnosed by his general practitioner, Dr Bhatnagar during the Relevant Period and further by Dr Lubke, general practitioner after the Relevant Period. The Tribunal accepts that the Applicant suffers from depression and anxiety.
The introduction of Table 5 of the Impairment Tables requires that in order for a mental health condition to be considered fully diagnosed it must be diagnosed by a clinical psychologist or psychiatrist.
The evidence before the Tribunal as summarised above by Dr Armstrong, which was confirmed by the Applicant was that he did not see Dr Day, a clinical psychologist until August 2022. Dr Day’s confirmation of the diagnosis of depression and anxiety as such came well after the Relevant Period.
Consequently, based on the evidence before it, and in the absence of a diagnosis of the Applicant’s depression and anxiety by a psychiatrist or clinical psychologist during the Relevant Period, the Tribunal cannot be satisfied that the Applicant’s mental health condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Spinal condition
There is very little evidence before the Tribunal in relation to the Applicant’s spinal condition. The Applicant told the Tribunal that he had no idea what was going on with this condition and had only just found out that he had scoliosis.
On 30 August 2017, an MRI report showed that the Applicant had mild to moderate disc degeneration at C5/6 with bony foraminal narrowing, which was potentially impinging on the right C6 nerve root. The Tribunal accepts on that basis that the Applicant’s spinal condition was fully diagnosed in the Relevant Period.
The Tribunal notes that there is no evidence before it in relation to the Applicant having seen a specialist or received any treatment in relation to his spinal condition either during, before or after the Relevant Period.
Consequently, based on the evidence before it, and in the absence of evidence that the Applicant’s spinal condition had been treated and stabilised during the Relevant Period, the Tribunal cannot be satisfied that the condition was fully treated and fully stabilised during the Relevant Period. Therefore, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
Did the Applicant have a continuing inability to work – section 94(1)(c) of the Act?
As the Tribunal has found that the Applicant did not have a total of 20 impairment points either on one Impairment Table or across multiple Impairment Tables during the Relevant Period, there is no need to consider whether he met the requirements of section 94(1)(c) of the Act.
CONCLUSION
Based on the evidence before it, the Tribunal finds that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s:
(a)heart and lung conditions were fully diagnosed, fully treated and fully stabilised and could be assigned 10 points under Table 1 of the Impairment Table;
(b)right elbow condition was fully diagnosed, fully treated and fully stabilised and could be assigned zero points under Table 2 of the Impairment Table; and
(c)mental health and spinal conditions were not fully diagnosed, fully treated and fully stabilised and, therefore, could not be considered permanent for the purposes of assigning a rating under the Impairment Tables.
The Tribunal finds that, for the purposes of section 94(1)(b) of the Act, the Applicant’s impairments do not attract more than 20 points under the Impairment Tables.
Accordingly, the decision under review is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

...................................[SGD].....................................
Associate
Dated: 29 June 2023

Date of hearing: 2 June 2023

Applicant: By phone

Solicitors for the Respondent:
Ms Sharon Chiu
Services Australia

[2023] AATA 1882

29 June 2023

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Date of hearing:	2 June 2023
Applicant:	By phone
Solicitors for the Respondent:	Ms Sharon Chiu Services Australia