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

Stevens and Secretary, Department of Social Services (Social services second review) [2017] AATA 2713 (20 December 2017)
Division:GENERAL DIVISION
File Number: 2017/0551
Re:Nathan Stevens
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:20 December 2017
Place:Brisbane

The Tribunal affirms the decision under review.
.................................[Sgd].......................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Member D K Grigg
20 December 2017
INTRODUCTION AND CLAIMS HISTORY

Mr Stevens was a recipient of the Disability Support Pension (“DSP”) from 20 October 2009 for a spinal impairment.[1] On 12 April 2016 the Department of Human Services (“Centrelink”) issued Mr Stevens with a medical report form to be completed for the purposes of reviewing his eligibility for DSP.[2]
[1] Exhibit 1, T Documents, T25, page 144, Centrelink records.
[2] Exhibit 1, T Documents, T18, page 112, Letter from Centrelink to Mr Stevens dated 12 April 2016; T19, page 116,
Letter from Centrelink to Mr Stevens dated 12 April 2016.
The Medical Reports completed by Mr Stevens and Dr Reggie Ba-Pe as part of Centrelink’s review, listed Mr Stevens’ medical conditions as:[3]
·fracture T12
·advanced coronary heart disease
·chronic back pain
[3]Exhibit 1, T Documents, T18, page 113, DSP Review Report completed by Mr Stevens dated 8 May 2016; T 19, pages 116 – 125, Medical Report for DSP Review of Dr Ba-Pe dated 2016.
Following the medical review, Centrelink cancelled Mr Stevens DSP on 12 August 2016.[4]
[4] Exhibit 1, T Documents, T21, pages 133 – 134, Letter from Centrelink to Mr Stevens dated 12 August 2016.
Mr Stevens sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Stevens’ medical conditions did not attract 20 points or more under the Impairment Tables.[5]
[5] Exhibit 1, T Documents, T22, pages 135 – 138, Decision of ARO dated 14 October 2016.
Mr Stevens then lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Mr Stevens’ claim and affirmed the ARO’s decision on 17 January 2017.[6]
[6] Exhibit 1, T Documents, T3, pages 8 – 14, SSCSD’s Decision and Reasons for Decision dated 10 January 2017.
Mr Stevens has sought a review of the SSCSD’s decision by this Tribunal.[7]
[7] Exhibit 1, T Documents, T2, pages 3 – 7, Mr Stevens’ Application for Review dated 30 January 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):
(a)Mr Stevens must have a physical, intellectual or psychiatric impairment;
(b)Mr Stevens’ impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[8] and
(c)Mr Stevens must have a continuing inability to work.
[8] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (the “Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[9]
[9] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, in order to qualify for the DSP, Mr Stevens must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 12 August 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Stevens’ impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[10]
DID MR STEVENS HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[10]See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment?
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[11]
Mr Stevens’ Medical Conditions
[11] Determination, s 3.
Spinal Conditions - back and neck
In June 1995 Dr Kym Wendt, General Practitioner, reported that Mr Stevens had back pain and would need up to 3 months off work.[12]
[12] Exhibit 1, T Documents, T5, page 50, Medical certificate of Dr Wendt dated 26 June 1995.
On 30 January 2007 Mr Stevens fell 2.5 m from an excavator landing on his buttocks. Radiographs indicated that he had fractured the 12^th thoracic vertebra and he was treated with analgesia and muscle relaxants. He subsequently commenced a program of physiotherapy, hydrotherapy and swimming and eventually returned to work.[13]
[13] Exhibit 1, T documents, T7, page 55, Report of Dr Boys dated 12 June 2007.
Mr Stevens was examined by Dr Scott Campbell, Neurosurgeon, in August 2008 for the purposes of a medicolegal report. Dr Campbell reports that Mr Stevens had 2 accidents, a work accident and a motor vehicle accident in 2007. Dr Campbell reported that:[14]
(a)the diagnosis from the work accident was wedge fracture T12 treated conservatively; and
(b)the diagnosis from the motor vehicle accident was chronic soft tissue muscular-ligamentous injury to the cervical spine.
[14] Exhibit 1, T documents, T8, pages 56 – 62, Report of Dr Campbell dated 29 August 2008.
In Dr Campbell’s opinion any return to work duties involving shovelling, lifting heavy equipment or getting on and off heavy machinery would place Mr Stevens at risk of further injury and that he would be best suited to performing sedentary type work. Dr Campbell concluded that Mr Stevens had suffered an 8% whole person impairment and that his condition was likely to be permanent.[15]
[15] Exhibit 1, T documents, T8, pages 56 – 62, Report of Dr Campbell dated 29 August 2008.
In November 2009 Dr Ba-Pe reported that:[16]
(a)Mr Stevens’ lumbar spine muscular ligamentous injury was presumptive and that they were waiting on an MRI report;
(b)Mr Stevens had chronic back pain;
(c)Mr Stevens had poor back mobility; and
(d)Mr Stevens’ spinal condition was likely to impact on his ability to function for the next 3 – 24 months and that the effect on his ability to function was uncertain.
[16] Exhibit 1, T documents, T11, pages 75 – 76, Report of Dr Ba-Pe dated 3 November 2009.
After receiving the MRI results Dr Ba-Pe reported that:[17]
(a)Mr Stevens’ lumbar spine muscular ligamentous injury was confirmed; and
(b)the condition was likely to impact on Mr Stevens’ ability to function for more than 24 months and that the effect on Mr Stevens’ ability to function remain unchanged.
[17] Exhibit 1, T documents, T13, pages 88 – 89, Report of Dr Ba-Pe dated 9 November 2009.
In July 2017 Dr Ba-Pe reported that:[18]
(a)Mr Stevens’ spinal conditions were having a severe functional impact;
(b)Mr Stevens was unable to remain seated for at least 10 minutes; and
(c)his condition had stabilised and no significant improvement was expected.
[18] Exhibit 3 Report of Dr Ba-Pe dated 3 July 2017.
In October 2017 Dr Ba-Pe reported that his Report of July 2017 reflected the functional impact of Mr Stevens’ spinal condition from August 2016 onwards.[19]
[19] Exhibit 4 Report of Dr Ba-Pe dated 18 October 2017.
Heart Condition
On 27 March 2014 Mr Stevens presented at hospital with severe left parasternal chest pain that he experienced while walking to the shops with associated diaphoresis and dyspnoea. Mr Stevens was diagnosed at the hospital with “inferolateral STEMI [ST – elevation myocardial infarction] with reperfusion arrhythmias, two vessel coronary artery disease and BMS to mid circumflex coronary artery”. Mr Stevens was discharged from hospital the next day and provided with anticoagulant medication and a reference to a cardiac rehabilitation facility.[20]
[20] Exhibit 1, T documents, T15, pages 103 – 104, Queensland Health Discharge Summary dated 28 March 2014.
In or around March 2014 Mr Stevens had surgery to insert a bare metal stent to his left circumflex vessel. Mr Stevens was reviewed by Dr Gerard Connors, Cardiologist, in May 2014 who reported that Mr Stevens was doing very well and that he would see him again on the anniversary of his infarct.[21]
[21] Exhibit 1, T documents, T16, page 110, Report of Dr Gerard Connors, cardiologist, dated 21 May 2014.
In November 2015 Mr Stevens was reviewed by Dr Paul Garrahy, Director of Cardiology at the Princess Alexandra Hospital. Dr Garrahy reported that:[22]
(a)Mr Stevens had had 2 heart attacks;
(b)the original stent that was inserted was fine and that he had had another bare metal stent inserted in his distal right coronary artery;
(c)Mr Stevens was currently on medication and was doing well;
(d)Mr Stevens was to have an exercise stress echocardiogram in July 2016; and
(e)“hopefully his heart will stay quiet now for some years”.
[22] Exhibit 1, T documents, T17, page 111, Report of Dr Garrahy dated 18 November 2015.
In July 2017 Dr Ba-Pe reported that Mr Stevens experienced occasional symptoms of chest pains when performing physically demanding activities and when walking without stopping to rest.[23]
[23] Exhibit 3, Report of Dr Ba-Pe dated 3 July 2017.
In October 2017 Dr Ba-Pe reported that his Report of July 2017 reflected the functional impact of Mr Stevens’ heart condition from August 2016 onwards.[24]
[24] Exhibit 4, Report of Dr Ba-Pe dated 18 October 2017.
Conclusion on Impairments
The Secretary accepts that Mr Stevens suffered from physical impairments for the purposes of section 94(1)(a) at the Qualification Date.[25]
[25] See Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 15 November 2017, para 4.21.
Given the medical evidence the Tribunal finds that Mr Stevens suffered from a Spinal Impairment and Heart Impairment for the purposes of section 94(1)(a) at the Qualification Date.
DO MR STEVENS’ IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[26] They are function based[27] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[28]
[26] Determination, s 4(2) and 5(2)(a).
[27] Determination, s 5(2)(b) and (c).
[28] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to Mr Stevens’ impairments if:[29]
(a)Mr Stevens’ conditions causing the impairments are permanent; and
(b)the impairments that result from the conditions are more likely than not, in light of available evidence, to persist for more than 2 years.
[29] Determination, see s 6(3).
Mr Stevens’ condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[30]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Determination, see s 6(4).
In determining whether a condition has been “fully diagnosed” by an appropriately qualified medical practitioner and whether it has been “fully treated”[31] the following must be considered:[32]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[31] For the purposes of ss 6(4)(a) and (b) of the Determination.
[32] Determination, see s 6(5).
A condition is “fully stabilised”[33] if:[34]
(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;[35] or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[33] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[34] Determination, see s 6(6).
[35] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables the Tribunal must first consider Mr Stevens’ medical history, in relation to the conditions causing the Impairments.[36]
SPINAL IMPAIRMENT
[36] Determination, see s 6(2).
Is Mr Stevens’ Spinal Impairment permanent and likely to persist for at least 2 years?
The Secretary accepts that Mr Stevens’ Spinal Impairment was permanent at the Qualification Date.[37]
[37] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 15 November 2017, para 4.22(a).
In August 2016, a Job Capacity Assessment (“JCA”) was conducted face-to-face with Mr Stevens by a Registered Psychologist and a Rehabilitation Counsellor. The JCA concluded that Mr Stevens’ Spinal Impairment was fully diagnosed, fully treated and fully stabilised.[38]
[38] Exhibit 1, T Documents, T20, page 126, JCA report dated 11 August 2016.
The JCA reported that in terms of treatment for the condition Mr Stevens:[39]
(a)has had a CT scan and an MRI;
(b)has undertaken physiotherapy and hydrotherapy;
(c)has consulted an exercise physiologist; and
(d)has attended a pain management program at Wesley Hospital;
(e)had been reviewed by orthopaedic and neurosurgeons;
(f)had a daily exercise and stretching routine;
(g)walks to maintain movement and limited fitness; and
(h)takes regular medications.
[39] Exhibit 1, T Documents, T20, page 127, JCA report dated 11 August 2016.
The medical evidence before the Tribunal is limited in terms of corroborating evidence of treatment since 2007. However, given the JCA report, the fact that the Secretary accepts that Mr Stevens Spinal Impairment has been fully diagnosed, fully treated and fully stabilised, and that Dr Campbell described Mr Stevens’ condition as “chronic”,[40] the Tribunal finds that Mr Stevens’ Spinal Impairment is permanent for the purposes of the Act. There is certainly no evidence which suggests that Mr Stevens has not undertaken recommended or appropriate reasonable treatment. Dr Campbell also noted in 2009 that surgery was not indicated.[41]
[40] Exhibit 1, T Documents, T8, page 62, Report of Dr Campbell dated 29 August 2008.
[41] Exhibit 1, T Documents, T8, page 62, Report of Dr Campbell dated 29 August 2008.
As a result, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Mr Stevens’ Impairment has to be assessed against the descriptors[42] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[43]
[42] Determination, see ss 3 and 5(3).
[43] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[44]
[44] Determination, see s 6(1).
The Tribunal is obliged by the Determination to take the following information into account in applying the Tables:[45]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[45] Determination, see s 7.
The Tribunal must not take into account the following information in applying the Tables:[46]
(a)symptoms reported by Mr Stevens in relation to his condition where there is no corroborating evidence; and
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Mr Stevens’ local community.
[46] Determination, see s 8.
Which Tables are appropriate are determined by:[47]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[47] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[48]
[48] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[49]
[49] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[50]
[50] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[51]
[51] Determination, see s 11(5).
Relevant Impairment Table and Impairment Rating
Table 4 of the Determination, which deals with spinal function, is the relevant Table.
The Introduction to Table 4 of the Determination provides:
·Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purpose of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with spinal function impairment (e.g. spinal cord injury, spinal stenosis, cervical spondylosis, lumbar radiculopathy, herniated or ruptured disc, spinal cord tumours, arthritis or osteoporosis involving the spine);
oa report from a physiotherapist or other rehabilitation practitioner confirming loss of range of movement in the spine or other effects of spinal disease or injury.
·In using Table 4, descriptors are to be met only from spinal conditions. Restrictions on overhead tasks resulting from shoulder conditions should be rated under Table 2.

To obtain a five-point rating the corroborating evidence would be to show that
Mr Stevens has some difficulty in:
(i)activities overhead height (e.g. activities requiring [him] to look upwards); or
(ii)bending to knee level and straightening up again without difficulty; or
(iii)turning [his] trunk or moving [his] head (e.g. to look to the sides or upwards).
To obtain a 10-point rating the corroborating evidence would need to show that

Mr Stevens:
(1)…is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:
(a)[he] is unable to sustain overhead activities (e.g. accessing items over head height); or
(b)[he] has difficulty moving [his] head to look in all directions (e.g. turning [his] head to look over [his] shoulder); or
(c)[he] is unable to bend forward to pick up a light object placed at knee height; or
(d)[he] needs assistance to get up out of a chair (if not independently mobile in a wheelchair).
To obtain a 20-point rating the corroborating evidence would need to show that

Mr Stevens:
(1)…is unable to:
(a)perform any overhead activities; or
(b)turn [his] head, or bend [his] neck, without moving [his] trunk; or
(c)bend forward to pick up a light object from a desk or table; or
(d)remain seated for at least 10 minutes.
Evidence of impact on function
The JCA reported in August 2016 that:[52]
[52] Exhibit 1, T Documents, T20, pages 127-129, JCA report dated 11 August 2016.
·Dr Ba-Pe reported that Mr Stevens had back pain with strenuous activity and frequent lifting.
·Mr Stevens said:
ohe does stretching exercises;
ohe uses heat packs and hot showers to help his get his back going in the morning;
ohe avoids massage as it’s too painful;
ohe exercises daily (walking around his acreage property five to six times a day);
ostress exacerbates his symptoms;
ohe can walk from the car park to the shopping centre and the round the shops with a break;
ohe experiences back pain and referred pain down the back of both legs;
ohe can have good days without pain and bad days where he can sometimes be bedridden;
oon a good day he can dig in the garden;
oexercise makes him sore;
ohe has standing and sitting tolerances of 20 to 30 minutes; and
ohe cannot lift anything from the floor to his waist over 5 kg.
Mr Stevens gave evidence before the SSCSD in January 2017:[53]
“What he does at home varies with his capacity on that day. He may do some light household chores like stack or empty the dishwasher or do a small amount mowing on the ride on mower. He can sit but not sit still, he has to shift position every few minutes and this is the case also for standing. He drives only short distances… He can travel in a car as a passenger for 20 minutes then he would get out and stretch. He can rise at the dining room chair from seated. He has an electric recliner chair and uses this to assist him to get out of the chair. He does not bend forward from his back. He could pick something up from table height. He would bend his knees to get down to knee level. He tries to walk and can walk for 15 – 20 minutes on the flat. If there is any incline he gets back pain after three to four minutes.”
[53] Exhibit 1, T Documents, T3, pages 10 – 11, Decision of SSCSD dated 17 January 2017.
The JCA concluded that an appropriate Impairment Rating under Table 4 for Mr Stevens Spinal Impairment was 5 points.[54] A 5-point Impairment Rating is also what is contended by the Secretary.[55]
[54] Exhibit 1, T Documents, T20, page 129, JCA report dated 11 August 2016.
[55] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions dated 15 November 2017, para 4.24.
In Dr Ba-Pe’s two reports in 2017, Dr Ba-Pe reports that his opinion Mr Stevens meets 20 points under Table 4 on the basis that he is unable to remain seated for at least 10 minutes. While Dr Ba-Pe reports that this was the case from 12 August 2016 onwards, the self-report evidence of Mr Stevens given to the JCA and the SSCSD is not consistent with that opinion. In particular there is no reference to Mr Stevens being unable to perform any overhead activities, being unable to turn his head or bend his neck moving his trunk, being unable to bend forward to pick up a light object from a desk or table or being unable to remain seated for at least 10 minutes.
Mr Stevens explained to the Tribunal that when he provided that information to the JCA and the SSCSD that he was answering in response to being told to describe what he could do on his best day. Mr Stephen says in reality he only has a “best day” once a month.
It may be that Mr Stevens’ Spinal Impairment has deteriorated since the Qualification Date in which case it would be open to Mr Stevens to reapply for DSP. However, for the purposes of this application Mr Stevens’ Spinal Impairment has to be considered as at the Qualification Date.
The lack of corroborating medical evidence at the Qualification Date makes the Tribunal’s task more difficult. The Tribunal notes that in 2008 Dr Campbell did make a point of reporting that Mr Stevens’ mid and lower back pain is:[56]
“…aggravated by prolonged sitting/standing, walking, driving a car, house duties, dressing/undressing, getting in and out of bed, ascending/descending stairs, looking upwards, standing and preparing food. He is unable to ride a motorbike.
The neck pain is aggravated by sudden movements to the left or right, looking upwards, lifting and carrying.
…
The mid and lower back pain is aggravated by prolonged sitting and this interferes with his ability to sit and relax…[His] symptoms are aggravated by jogging and cycling. He no longer plays backyard sports duties injuries.
…
If he gained suitable employment he would need frequent breaks from sitting and could be expected to take more time off sick and his uninjured counterparts.”
[56] Exhibit 1, T documents, T8, page 61, report of Dr Campbell dated 29 August 2008.
The Tribunal considers that given the medical and other evidence available an appropriate Impairment Rating for Mr Stevens’ Spinal Impairment under Table 4 is 10 points.
There was some discussion as to whether or not a rating should also be applied under Table 3 which deals with lower limb functions given that there is evidence regarding Mr Stevens’ ability to walk and use stairs. Mr Kyranis, on behalf of the Secretary, submitted that, pursuant to 10(4) of the Determination, Mr Stevens’ impairments arise from a single condition and a rating should not be assigned under more than one table. However, Mr Stevens has two back conditions and those conditions impact different aspects of Mr Stevens’ ability to function. Even if Mr Stevens’ back conditions were considered to be a single condition, section 10(3) of the Determination provides that each impairment should be assessed under the relevant table. There is evidence that Mr Stevens has some difficulty walking on a variety of different terrains and may have some difficulty climbing stairs. However under Table 3 in order to be assigned an Impairment Rating of a minimum of 5-points there must be corroborating evidence that Mr Stevens is unable to stand for more than 10 minutes or that he needs to use a lower limb prosthesis or a walking stick to mobilise effectively. There is simply no corroborating evidence that Mr Stevens is unable to stand for more than 10 minutes or that he needs to use a lower limb prosthesis or a walking stick to mobilise effectively and therefore a zero point Impairment Rating is all that can be assigned under Table 3.
HEART IMPAIRMENT
Is Mr Stevens’ Heart Impairment permanent and likely to persist for at least 2 years?
The JCA concluded that while Mr Stevens’ Heart Impairment was fully diagnosed it was not fully treated and not fully stabilised because at the Qualification Date Mr Stevens was still to have a stress test, angiogram and specialist review which the JCA thought may identify further treatable issues which may result in an improvement in the condition.[57]
[57] Exhibit 1, T Documents, T20, page 128, JCA report dated 11 August 2016.
The Tribunal acknowledges that Mr Stevens was to have further and ongoing tests. However, this would be the normal procedure for somebody who has had several heart attacks and stent operations. Ongoing tests are more about monitoring than treatment. There is no evidence that there is treatment available which Mr Stevens has not undertaken which would result in a significant improvement in his ability to function. The Tribunal finds that Mr Stevens Heart Impairment was fully diagnosed, fully treated and fully stabilised as at the Qualification Date. As a result an Impairment Rating can be assigned. The Secretary accepts that Mr Stevens’ Heart Impairment was permanent at the Qualification Date.[58]
[58] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 15 November 2017, para 4.27.
Relevant Impairment Table and Impairment Rating
Table 1 of the Determination, which deals with functions requiring physical exertion and stamina, is the relevant Table.
The Introduction to Table 1 of the Determination provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
To obtain a five-point rating the corroborating evidence would be to show that
Mr Stevens:
(a)experiences occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, [he] has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b)is able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
To obtain a 10-point rating the corroborating evidence would need to show that

Mr Stevens:
(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).
Evidence of impact on function
The JCA reported in August 2016 that:[59]
[59] Exhibit 1, T Documents, T20, pages 128-129, JCA report dated 11 August 2016.
(a)Dr Ba-Pe reported that Mr Stevens poor tolerance to exertion or excessive physical activity;
(b)Mr Stevens said:
(i)he exercises daily (walking around his acreage property 5 to 6 times a day);
(ii)stress exacerbates his symptoms;
(iii)he can walk from the car park to the shopping centre and around the shops with rest breaks;
(iv)he experiences shortness of breath all of the time and occasional chest pain;
(v)on a good day he can dig in the garden;
(vi)exercise makes him sore; and
(vii)he has standing and sitting tolerances of 20 to 30 minutes.
In Dr Ba-Pe’s two reports in 2017 Dr Ba-Pe reports that his opinion Mr Stevens meets a 5 point rating under Table 1. A 5-point Impairment Rating is also what is contended by the Secretary.[60]
[60] Exhibit 2, Secretary’s Statement of issues, Facts and Contentions dated 15 November 2017, para 4.28.
There is no corroborating evidence that Mr Stevens 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 has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths). Therefore, a 10-point Impairment Rating is not appropriate. Given that Mr Stevens experiences occasional shortness of breath and chest pain when exercising and walking, an Impairment Rating of 5-points under Table 1 is appropriate for Mr Stevens’ Heart Impairment. Mr Stevens told the Tribunal that he agreed that a 5-point Impairment Rating was appropriate under Table 1 for his Heart Impairment.
WERE MR STEVENS’ IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
Mr Stevens does not qualify for DSP because his Impairments have not attracted a the minimum Impairment Rating of 20 points as required pursuant to section 94(1)(b) of the Act.
DID MR STEVENS HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As the Tribunal has concluded that Mr Stevens’ Impairments were not permanent during the Qualification Date it is unnecessary for me to consider whether Mr Stevens had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
DECISION
Mr Stevens’ claim fails. He did not qualify for DSP at the Qualification Date.
The decision under review is affirmed.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

....................................[Sgd]....................................
Associate
Dated: 20 December 2017

Date of hearing:

14 December 2017

Applicant:

By telephone

Advocate for the Respondent:

Mr Jake Kyranis, Lawyer

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2017] AATA 2713

20 December 2017

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	14 December 2017
Applicant:	By telephone
Advocate for the Respondent:	Mr Jake Kyranis, Lawyer
Solicitors for the Respondent:	Sparke Helmore Lawyers