Steven Parker and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
[2013] AATA 101
•27 February 2013
[2013] AATA 101
Division GENERAL ADMINISTRATIVE DIVISION File Number
2011/1399
Re
Steven Parker
APPLICANT
And
Secretary, Department of Families, Housing, Community Services and Indigenous Affairs
RESPONDENT
DECISION
Tribunal Senior Member K Bean
Date 27 February 2013 Place Adelaide The decision under review is affirmed.
..........................[Sgd]..............................................
Senior Member K Bean
CATCHWORDS
SOCIAL SECURITY - Disability support pension - Qualification - Whether applicant's medical conditions are fully diagnosed, investigated, treated and stabilised - Whether rateable impairments attract a rating of at least 20 points - Applicant's rateable impairments do not attract 20 points - Decision under review affirmed.
LEGISLATION
Social Security Act 1991, s 94
CASES
Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
SECONDARY MATERIALS
Guide to the Tables for the Assessment of Work-Related Impairment for Disability Support Pension
REASONS FOR DECISION
Senior Member K Bean
27 February 2013
INTRODUCTION
The applicant, Mr Parker, worked for many years as a Gaming Dealer and then Gaming Inspector with the Adelaide Casino. However in 2001 he developed pain in his lower legs and feet which was subsequently diagnosed as Achilles tendonitis. He left his employment in 2002 and, unfortunately, despite trialling various treatments, his Achilles tendonitis has persisted and become more severe over time.
In more recent years Mr Parker has also developed a number of other medical conditions including Irritable Bowel Syndrome (IBS), which currently causes him severe symptoms. Accordingly, on 27 August 2010, he lodged a claim for disability support pension (DSP), relying in part on his tendonitis and IBS conditions. However his claim was rejected by Centrelink, both at first instance and on review, and the Social Security Appeals Tribunal (SSAT) also concluded that he was not qualified for DSP.
On 15 April 2011, Mr Parker lodged an application with this Tribunal seeking review of the decision of the SSAT and giving rise to these proceedings.
LEGISLATION AND ISSUES
In broad terms the issue before me therefore is whether Mr Parker was qualified for DSP as at the date of his claim on 27 August 2010,[1] or within 13 weeks of that date.[2]
[1] T5/78.
[2] Social Security (Administration) Act 1999, Schedule 2 at 4.
Qualification for DSP is governed by s 94 of the Social Security Act 1991 (the SS Act), which at the relevant time provided in part as follows:
“94 Qualification for disability support pension
(1)A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i)the person has a continuing inability to work;
(ii)the Health Secretary has informed the Secretary that the person is participating in the supported wage system administered by the Health Department, stating the period for which the person is to participate in the system; and
(d) the person has turned 16; and
(e) the person either:
(i)is an Australian resident at the time when the person first satisfies paragraph (c); or
(ii)has 10 years qualifying Australian residence, or has a qualifying residence exemption for a disability support pension; or
(iii)is born outside Australia and, at the time when the person first satisfies paragraph (c) the person:
(A) is not an Australian resident; and
(B) is a dependent child of an Australian resident;
and the person becomes an Australian resident while a dependent child of an Australian resident; and
(f) the person is not qualified for disability support pension under section 94A.
Note 1: For Australian resident, qualifying Australian residence and qualifying residence exemption see section 7.
Note 2: For Impairment Tables see section 23(1) and Schedule 1B.
(2)A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(a) the impairment is of itself sufficient to prevent the person from doing any work independently of a program of support within the next 2 years; and
(b) either:
(i)the impairment is of itself sufficient to prevent the person from undertaking a training activity during the next 2 years; or
(ii)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 program of support within the next 2 years.
…”
The respondent does not dispute that Mr Parker suffers a number of impairments within the meaning of s 94(1)(a), or that he satisfies the requirements of s 94(1)(d), (e) and (f). However, the respondent contends that Mr Parker does not suffer from an impairment or impairments which attract a rating of 20 points or more under the Impairment Tables as required by s 94(1)(b). The respondent also contends that Mr Parker does not have a “continuing inability to work” within the meaning of s 94(1)(c), and does not otherwise satisfy that provision.
Therefore, the particular issues which arise for my consideration are:
(a)At the relevant time, did Mr Parker suffer from an impairment or impairments which attracted a total rating of 20 points or more under the Impairment Tables?; and
(b)If so, did Mr Parker have a “continuing inability to work” within the meaning of s 94?
I propose to first address the question of whether Mr Parker suffered an impairment attracting 20 or more points under the Impairment Tables.
AT THE RELEVANT TIME, DID MR PARKER HAVE AN IMPAIRMENT ATTRACTING 20 OR MORE POINTS UNDER THE IMPAIRMENT TABLES?
As I have alluded to above, there is no dispute between the parties that Mr Parker suffers from a number of medical conditions. The conditions listed in Mr Parker’s claim form included “lobectomy (missing ½ right lung)”, asthma, “GORD” and depression[3] and the SSAT also found that he was suffering from “low back pain”.[4]
[3] T5/90, T12/155.
[4] T2/4.
In the context of this matter, Mr Hemsley, who appeared as counsel for Mr Parker, conceded that none of these conditions gave rise to any relevant impairment, and I am satisfied that that concession was appropriately made. However Mr Hemsley contended that Mr Parker’s other claimed conditions of IBS and bilateral Achilles tendonitis (tendonitis) did give rise to the requisite level of impairment. Accordingly it is those conditions which are relied upon by Mr Parker in support of his claim for DSP in the context of this matter, and the respondent does not dispute that he suffers from those conditions.
The next questions which arise therefore are whether either of these conditions can potentially attract an impairment rating under the Impairment Tables and, if so, what rating should be assigned for any rateable impairment.
I propose to first discuss Mr Parker’s tendonitis condition before then addressing the IBS condition.
Does Mr Parker’s tendonitis attract an impairment rating and, if so, what rating should be assigned?
Can an impairment rating be given?
The introduction to the Impairment Tables outlines the requirements that must be satisfied before an impairment rating can be assigned for a condition. These include:
(a)A condition must be a fully documented, diagnosed one which has been “investigated, treated and stabilised”;
(b)“The condition must be considered to be permanent”;
(c)“Once a condition has been diagnosed, treated and stabilised, it is accepted as being permanent if in the light of available evidence it is more likely than not that it will persist for the foreseeable future. This will be taken as lasting for more than 2 years”; and
(d)“A condition may be considered fully stabilised if it is unlikely that there will be any significant functional improvement, with or without reasonable treatment, within the next 2 years”.[5]
[5] The Impairment Tables at Schedule 1B of the Act, at [4] – [5]. These Impairment Tables were subsequently repealed and replaced with respect to claims made from 1 January 2012: Social Security and other Legislation Amendment Act 2011.
Accordingly, before considering what rating can be given for Mr Parker’s tendonitis, I must first consider whether the condition is capable of attracting an impairment rating having regard to the requirements set out in the Impairment Tables.
With respect to the duration of his tendonitis condition and the treatment options which have been explored, Mr Parker gave evidence that the condition had first developed in 2001 and had persisted since that time. He said he was initially prescribed pain killers and anti-inflammatory medication, but these did not alleviate the condition.[6] Some time later, in January 2005, he said he also went to a podiatrist, Ms Alison Dalli, at Paralowie. He said in his statement:
“She made casts of my feet and prepared orthotics, and recommended I have shoes made incorporating the orthotics. However Workcover refused to meet the costs of having the shoes made and told me I had to make do with just the orthotics. … instead I tried them with my existing shoes. I found they aggravated my existing pain, it meant my shoes were too tight and if I loosened the laces my foot slipped around in the shoe. I thought that the initial pain would pass, and that the realignment of my feet caused by the orthotics was part of the treatment for the condition. I continued to use them for short periods, for example if I had to walk to the shop or go out, but the rest of the time I would not put them in the shoes and I would try to stay off my feet.
I saw the podiatrist again and she made adjustments to the orthotics and I continued to try them until middle of 2006 but they did not provide me with any help, except aggravation of the pain, so I stopped using them.”[7]
[6] Exhibit 5, [15].
[7] Exhibit 5, [42]-[43].
Mr Parker’s oral evidence was consistent with his written statement in this regard, although he clarified that after they had been adjusted he thought he had used the orthotics for about a year, without benefit. He also clarified that before the orthotics were adjusted he wore them for 3 to 4 hours a day, however after they were adjusted he wore them for approximately 8 hours each day.
His evidence in this regard was also consistent with a letter from Ms Dalli to Mr Parker’s then treating general practitioner, dated 8 April 2005.[8] In that letter she confirmed that Mr Parker had been having difficulty with the orthotics she had provided to him and she had made some adjustments accordingly.
[8] Exhibit 4.
Mr Parker also said in his evidence that he had seen a physiotherapist, at about the same time that he had seen Ms Dalli, and been prescribed an exercise program. He said that he attended for approximately six sessions, after which time the physiotherapist advised him to simply continue with the exercise program at home.[9] He said he did these exercises for approximately 18 months, but did not find them beneficial. In fact the exercises simply caused him more pain. He thought he saw the physiotherapist approximately between 2005 and 2007. He also stated that he had seen another physiotherapist, Mr James Pyke, more recently, in the hope that a new treatment may have been available. He said Mr Pyke recommended heel raisers which he tried, but again did not find beneficial. In fact they caused him increased pain. In his statement, he said that he saw Mr Pyke in the period March to June 2011.[10] He also stated that he used the heel raisers for 6 months “… but they did not alleviate the pain and discomfort in my lower limbs so I do not use them any more”.[11]
[9] Exhibit 5, [44].
[10] Exhibit 5, [55].
[11] Exhibit 5, [55].
Mr Parker’s current treating general practitioner, Dr Goldsworthy, has also provided a number of reports and gave oral evidence at the hearing. He said he had been Mr Parker’s treating general practitioner since 2009. He also indicated that the evidence given by Mr Parker as to his tendonitis condition and the treatment which had been trialled for this was consistent with his understanding of the history of the condition. He said that Mr Parker had not initially come to him for treatment of the tendonitis condition, but he considered this had been fully investigated in the past and had also been correctly diagnosed. As for further treatment, he confirmed that he knew Mr Parker had tried orthotics and said he did not feel that he had anything further he could offer in the way of treatment beyond what Mr Parker had already tried without success.
Dr Goldsworthy said he thought that Mr Parker’s trial of the orthotics prescribed by Ms Dalli in 2005 was a more than adequate trial to establish whether the orthotics would provide benefit, assuming that he wore the orthotics for 8 hours per day for 12 months. In fact he thought a trial of 6 months would have been sufficient. He said that chronic tendonitis was known to be a very “refractory” condition which tended not to improve after it had persisted for so long. He said he was not optimistic that further physiotherapy or orthotics would be effective. Whilst he acknowledged that a treatment known as “shockwave therapy” was sometimes used for Achilles tendonitis, he referred to a study on its use in the case of Achilles tendinopathy [12] and said that in his view, the risks of this for Mr Parker outweighed any potential benefits and he would not recommend Mr Parker have shockwave therapy. Dr Goldsworthy also stated in his view, surgical intervention should be “avoided at all costs”.[13] Dr Goldsworthy stated accordingly that in his view, Mr Parker’s tendonitis condition had been fully documented, diagnosed, investigated, treated and stabilised.[14]
[12] Exhibit 3, p 36.
[13] Exhibit 3, report 17 November 2011.
[14] Exhibit 3.
Dr Tschirn, a Consultant Occupational Physician, has also examined Mr Parker at the request of the respondent and provided a report dated 7 October 2010.[15] In his report, Dr Tschirn recorded a history that Mr Parker was prescribed orthotics but had not worn these for any significant period of time. He accordingly concluded in his report that his medical treatment was “suboptimal at the moment”, and:
“… a suitable course of action would either be procuring suitable footwear to accommodate his existing orthotics, or in fact getting a further podiatry review which he could undertake through his treating general practitioner, to see if in fact his orthotics prescription is still correct and give him any further advice as need be”.
[15] T14/164-171.
As he did not consider that treatment with orthotics had been fully trialled, Dr Tschirn concluded that Mr Parker’s tendonitis condition had not been fully treated and was not fully stable.[16]
[16] T14/169.
In the course of his oral evidence however, the history as described by Mr Parker was put to Dr Tschirn. In particular, Dr Tschirn was asked whether, if Mr Parker did trial his orthotics for 12 months, this amounted to an adequate trial of orthotics, sufficient to establish whether these were likely to provide benefit. Dr Tschirn responded by indicating that, if that history was correct then he did regard that as an adequate trial of orthotics and, if he was to accept that history, he would in fact regard Mr Parker’s tendonitis condition as having been fully diagnosed, investigated, treated and stabilised at the time he saw him. In giving that opinion, he concurred with Dr Goldsworthy that it would not be reasonable to expect Mr Parker in all the circumstances to undergo shockwave therapy, steroid injections or surgery.
For completeness, I note that the Job Capacity Assessor who assessed Mr Parker in November 2010, Ms Larosa, concluded that his tendonitis condition had not been fully treated at that time.[17] However, her conclusion in this regard was heavily influenced by Dr Tschirn’s report and she made clear in her oral evidence that if Dr Tschirn now regarded the condition as having been fully treated at the time he saw Mr Parker, she would accept that opinion.
[17] T16/180.
Having carefully considered all of this evidence, I have concluded that I accept the history given by Mr Parker, which I note was consistent as between his statement and his oral evidence, and is also corroborated to some extent by Dr Goldsworthy and the contemporaneous letter of Ms Dalli. It therefore follows that, in light of that history, both Dr Goldsworthy and Dr Tschirn regard Mr Parker’s tendonitis condition as having been fully diagnosed, treated, investigated and stabilised as at the date of his claim on 27 August 2010. Having regard to their opinions, I am also satisfied that this condition was fully diagnosed, investigated, treated and stabilised as at the date of Mr Parker’s claim and can accordingly be assigned an impairment rating.
What impairment rating should be given for Mr Parker’s Achilles tendonitis condition?
The table which is appropriate for assessing the degree of impairment resulting from Mr Parker’s tendonitis condition is Table 4, which relevantly provides as follows:
TABLE 4 FUNCTION OF THE LOWER LIMBS
Table 4 is used to assess lower limb not spinal function (see Table 5). Assess both limbs together. Determination of lower limb impairments must be based on a demonstrable loss of functions.
Rating Criteria
NILWalks without difficulty on a variety of different terrains and at varying speeds for distances of more than 500m.
TENDemonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause moderate interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking to 250-500m or less, at a slow to moderate pace (4km/h). Can walk further after resting.
TWENTY Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause major interference with walking and one or more of the following: climbing, squatting, sitting or kneeling or
Pain or claudication restricts walking (4km/h) to 50-250m or less at a time. Can walk further after resting or
Unable to walk or stand but independently mobile using a self-propelled wheelchair.
As to the restrictions arising from his tendonitis condition, Mr Parker said in his evidence that he could walk from 50 to 250 metres, although the pain would increase while he was walking and he would need to rest for 15 minutes or so after walking 250 metres. In his statement he referred to the time he could walk for, rather than the distance, stating “… if I walk for 10 minutes or more the pain is exacerbated, …”.[18] In his oral evidence he also said it was particularly painful for him to walk up or down a slope and that he would have difficulty climbing a ladder. He said that sitting with his feet on the ground was also painful and he tended to move his feet while sitting to alleviate this. He said his pain was better when his legs were elevated.
[18] Exhibit 5, [35].
In his report dated 7 March 2011[19], Dr Goldsworthy assessed Mr Parker’s tendonitis condition as attracting a rating of 20 and in his oral evidence he said that he thought the condition had attracted that rating since Mr Parker first consulted him.
[19] In his oral evidence, Dr Goldsworthy acknowledged that this date was incorrect and the report was actually signed on approximately 8 September 2011.
In his report, Dr Tschirn recorded Mr Parker’s tolerances as 30 minutes for sitting, standing for 15 minutes and walking “about 10 minutes”.[20] In the course of his oral evidence, Dr Tschirn stated that if the tendonitis condition was regarded as fully investigated, treated, diagnosed and stabilised, the maximum rating the condition would attract would be a rating of 10 points. In giving that assessment, Dr Tschirn referred to Chapter 5 of the Guide to the Tables for the Assessment of Work-Related Impairment for Disability Pension (the Guide).[21] In particular, he referred the Tribunal to the following parts of the Guide at Chapter 5 relevant to assessment of impairment under Table 4:
“Determining a reliable level of lower limb impairment
Determination of the level of lower limb impairment must be based on a demonstrable loss of function. This means that there must be clinical evidence of functional impairment that is consistent with the reported level of functional loss. Clinical observations and findings on examination (such as gait, mobility, muscle bulk or wasting, power, tone, reflexes, sensory changes, coordination, range of joint movements etc.) should be correlated with the diagnosed medical pathology, functional history and reported symptom level. It would be inappropriate to apply a high impairment rating based solely on a person’s self-reported functional history if this level of functional loss is not consistent with the clinically demonstrable evidence.
…
The descriptors in Table 4 refer to ‘Demonstrable loss of strength, mobility, stability, balance, coordination and/or sensation such as to cause … interference with walking and one of more of the following: climbing, squatting, sitting or kneeling.’ These are categorised depending on whether there is ‘moderate’ or ‘major’ ‘interference …’ The alternative descriptors refer to restriction of walking distance due to ‘pain or claudication’. In determining an accurate walking distance it is usually more reliable to establish a maximal duration for performing the activity rather than relying on self-reported perceptions of maximal distance achieved. This measure of impairment is usually more consistently reliable with conditions such as intermittent claudication.
In terms of benchmarking the qualitative descriptors of ‘moderate’ or ‘major’ impairment, it should be remembered that in accordance with the underlying purpose of the Tables, the descriptors at 20 points correspond to the level of impairment where there is a significant impact on work ability. (Refer also to Sections (A), (C), (D), (F), (J) – Chapter 1.) Hence, on comparing the descriptor alternatives at this level, it can be seen that for functional loss in the lower limbs to be considered ‘major’, it must be of equivalent severity to being ‘unable to walk or stand but independently mobile using a self-propelled wheelchair’ (eg paraplegia).”
[20] T14/167.
[21] Guide to Social Security Law, at 3.6.3.
Dr Tschirn also made reference to the fact that, in examining Mr Parker, as he said in his report “… there was little to find … other than some mild tenderness …”.[22] In other words, his examination of Mr Parker did not reveal clinical evidence consistent with the degree of claimed incapacity.
[22] T14/169.
In light of this evidence, Mr Schatz, who appeared as advocate for the respondent, submitted that no more than 10 impairment points should be allocated for Mr Parker’s tendonitis condition. He pointed out that Mr Parker had acknowledged being able to walk for 10 minutes[23] as recorded by Dr Tschirn. He contended that at the relevant speed referred to in the Table of 4 kilometres per hour, this equated to approximately 666 metres, being significantly more than the limitation of 250 metres required for a 20 point rating. He also made reference to the fact that Mr Parker’s reported level of functional loss was not consistent with the clinically demonstrable evidence, at least having regard to Dr Tschirn’s examination. Mr Schatz also contended that it was clear from the terms of Table 4 and the relevant parts of the Guide that a rating of 20 was only intended to be allocated in cases of extreme impairment, equivalent to paraplegia. He submitted that Dr Tschirn had a superior understanding of the Guide and had applied the Table in a more considered manner than Dr Goldsworthy. Mr Schatz also contended that Dr Tschirn’s qualifications were more applicable to assessing impairment in this context.
[23] Exhibit 5, [35].
On behalf of Mr Parker, Mr Hemsley submitted that Dr Tschirn had seen Mr Parker only once, having examined him for no more than 30 minutes, and his opinion should be assessed in that context. He submitted that the Tribunal should bear in mind that the SS Act was beneficial legislation and regard should also be had to the degree of impairment required to attract a 20 point rating under other tables. For example he submitted that reference to Table 1.2 suggested that the degree of impairment required to attract a 20 point rating under Table 4 was not as great as had been suggested by Mr Schatz.
Mr Hemsley also contended that I should put less weight upon the evidence of Dr Tschirn as he had omitted to bring his notes with him to the hearing and they were not available to the Tribunal or the parties. However Mr Hemsley was given the opportunity to be provided with a copy of those notes, but declined that opportunity given that this would delay finalisation of the matter. In these circumstances, I am not persuaded that I should accord less weight to the opinion of Dr Tschirn due to the unavailability of his notes.
Indeed having carefully considered all of the submissions, I have concluded that I should place greater weight on Dr Tschirn’s assessment than that of Dr Goldsworthy. In my view, Dr Tschirn is better equipped to apply the Table, by reason of his specialist qualifications and his particular experience in assessing impairment under the Impairment Tables. It was also apparent from his evidence that he had given careful consideration to terms of the Guide, and as assessments under the Tables are required to be made by reference to the Guide,[24] his assessment is also of greater assistance to me for that reason.
[24] Drake and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60.
I have therefore concluded, consistently with and in reliance on Dr Tschirn’s opinion, that the impairment resulting from Mr Parker’s tendonitis does not attract a rating of 20 points. In reaching that conclusion, I have had regard to the fact that, assuming he can walk for approximately 10 minutes before needing to rest, Mr Parker’s walking tolerance would appear to exceed the limit required for a 20 point rating under the applicable criterion in Table 4. I have also had regard to Dr Tschirn’s findings on examination and those parts of the Guide which suggest that in this context a 20 point rating is only to be applied to a severe impairment.
Having regard to all of the relevant evidence, including Dr Tschirn’s opinion, I am satisfied however that the impairment resulting from Mr Parker’s tendonitis condition meets the criteria for a rating of 10 points, and has done so since he lodged his claim on 27 August 2010. Even if Mr Parker has not at all relevant times satisfied the criteria for a rating of 10 points by reference to his walking tolerance, I am satisfied that he has done so by reference to his demonstrable functional loss and the extent to which this interferes with his walking and other relevant physical activities.
However as this rating is not sufficient to qualify Mr Parker to receive DSP, I will proceed to consider what rating should be allocated for his IBS condition.
Does Mr Parker’s IBS condition attract an impairment rating and, if so, what rating should be assigned?
Can an impairment rating be given?
The requirements I have described above in considering whether an impairment rating could be given for Mr Parker’s tendonitis condition are of course also applicable to determining whether a rating can be given for his IBS condition. Therefore before proceeding to allocate a rating, I must first consider whether the condition is fully documented, diagnosed, investigated, treated and stabilised and whether it is considered to be permanent.
It is relevant to that issue that in both his statement and oral evidence, Mr Parker described his IBS symptoms as being far more dramatic than either Dr Goldsworthy or Dr Tschirn had previously been aware of. In his evidence, Dr Goldsworthy said that so far as he was aware, cramps were the predominant symptom of Mr Parker’s IBS, together with occasional constipation. He said he had given Mr Parker advice about his diet and prescribed an antispasmodic medication for him, as well as advising him as to the benefits of some other medications, such as Panadeine forte, in managing diarrhoea. He said he thought a rating of 10 was appropriate for the IBS condition and considered the condition to be fully diagnosed, treated and stabilised.
Similarly, when he examined Mr Parker in October 2010, Dr Tschirn took a history that “he gets varying diarrhoea and constipation which has been ongoing for some time”.[25] He also formed the view at that time that this condition was fully diagnosed, treated and stabilised and attracted a 10 point impairment rating.
[25] T14/166.
However in his evidence in the context of this matter, Mr Parker reported much more severe symptoms of his IBS condition than had been reported to Dr Tschirn or Dr Goldsworthy. In his statement he said:
“In relation to the irritable bowel syndrome the symptoms I experience on a daily basis are constipation, diarrhea[sic], abdominal pain and excessive urinating. About half the time my symptoms are worse and I will go to the toilet up to 30 times in a day.”[26]
[26] Exhibit 5, [52].
In his oral evidence he confirmed this and indicated that when the condition was not bad, he would still need to go to the toilet between 15 and 20 times per day. He also said he experienced bloating, stomach pains and cramps for a few hours each day. As a consequence of these difficulties, he said that if he knew he needed to undertake a particular activity where he may not be able to go to the toilet so frequently, he would reduce his intake of food and water beforehand, as this was effective to some degree in reducing his need to go to the toilet. He said on some occasions he would also get up extremely early in the morning in order to clear his system before going out, which helped to reduce his symptoms. He said his sleep was also broken due his symptoms as he would need to go to the toilet approximately four times each night and so would only sleep for one or two hours at a time. He estimated that he spent between three and six hours on the toilet each day.
As I have indicated, these symptoms were quite different from those recorded by Dr Tschirn and when Dr Tschirn was asked whether this history was consistent with the history he took, he indicated that it was not. He added that if this new history was correct, this would suggest a far more severe problem and that treatment was incomplete. On the basis of this history he said it would appear that Mr Parker’s symptoms had become worse, which may reflect some change in the underlying condition. He said this required further investigation and consideration of further treatment options.
When these symptoms were described to Dr Goldsworthy during his evidence, he also indicated that he had not understood that Mr Parker needed to go to the toilet 20 to 30 times per day and he would be concerned about dehydration in these circumstances. He said he had never recommended the regime described by Mr Parker, whereby he would fast and at times get up as early as 3am in the morning in order to be fit to undertake particular activities.
Having regard to all of this evidence, I have concluded that I accept Mr Parker’s evidence as to the current severity of his IBS symptoms. However I also accept the evidence of Dr Goldsworthy and Dr Tschirn to the effect that neither of them was aware that Mr Parker was suffering from symptoms as severe as have been described by Mr Parker in the context of this matter. Clearly one explanation for this on the evidence is that Mr Parker’s IBS condition has deteriorated, although he said in his evidence that his symptoms had been at their current level for the last few years. In any event, regardless of the reasons for the severity of the condition not coming to his attention, I accept Dr Tschirn’s evidence that in view of the current level of severity of Mr Parker’s IBS condition, the condition warrants further investigation and treatment. In this regard, I do not regard Dr Goldsworthy’s evidence as being inconsistent with that of Dr Tschirn, although the implications of the severe symptoms described by Mr Parker were not explored as thoroughly with Dr Goldsworthy as they were with Dr Tschirn.
Whilst the Job Capacity Assessor who gave evidence in this matter, Ms Larosa, also concluded in November 2010 that Mr Parker’s IBS condition was fully diagnosed, treated and stabilised, I note that her conclusion was reliant upon Dr Tschirn’s report, which has clearly been overtaken by his oral evidence in this matter.[27] As with the tendonitis condition, I also note that she indicated in her oral evidence that she would accept Dr Tschirn’s revised opinion in relation to this condition, having regard to the evidence given by Mr Parker.
[27] T16/182.
On the evidence before me, I have accordingly concluded that Mr Parker’s IBS condition has either deteriorated significantly since he lodged his claim in August 2010, or the severity of the condition did not become apparent to those treating and assessing him at around that time. In either case, I am satisfied that the condition is a relatively severe one which, in light of the nature of the symptoms reported by Mr Parker in the context of this matter, requires further investigation and potentially further treatment. It follows that I am not satisfied that, as at 27 August 2010 or within 13 weeks of that date, Mr Parker’s IBS condition was fully investigated, treated and stabilised. In those circumstances, for the reasons set out above, no impairment rating can be given for this condition.
CONCLUSION
I have concluded that only one of the conditions suffered by Mr Parker, being his tendonitis condition, attracts an impairment rating and that condition attracts a rating of 10 points. Although I am also satisfied that Mr Parker suffers from IBS, and that the symptoms of that condition are currently severe, as I am not satisfied that the condition was fully investigated, treated and stabilised during the relevant period, I have concluded that no impairment rating can be allocated for that condition.
As I have concluded that Mr Parker did not have an impairment attracting 20 or more points under the Impairment Tables at the time he lodged his claim on 27 August 2010 or within 13 weeks of that date, it follows that he did not satisfy s 94(1)(b) and therefore did not qualify for DSP during that period. In these circumstances, it is unnecessary for me to proceed to consider whether, during that period, Mr Parker had a “continuing inability to work” within the meaning of s 94(1)(c).
As Mr Parker was not qualified for DSP at the time he lodged his claim or within 13 weeks of that date, I am obliged to affirm the decision under review, albeit I note that I do so for reasons which are different from the reasons given by the SSAT for concluding that Mr Parker was not qualified for DSP.
For completeness I note that it is of course open to Mr Parker to lodge a further claim for DSP at any time and it may well be that, once his IBS condition has been fully investigated and treated, he will nevertheless be left with a stable impairment such that he does qualify for DSP.
DECISION
The decision under review is affirmed.
I certify that the preceding 52 (fifty -two) paragraphs are a true copy of the reasons for the decision herein of ...........................[Sgd].............................................
Administrative Assistant
Dated 27 February 2013
Date(s) of hearing 13, 14 & 21 November 2012 Counsel for the Applicant Mr G Hemsley Advocate for the Applicant Ms J Richardson Solicitors for the Applicant Joanna Richardson, Legal Practitioner Advocate for the Respondent Mr A Schatz Solicitors for the Respondent Program Litigation and Review Branch
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