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

Stevenson and Secretary, Department of Social Services (Social services second review) [2023] AATA 142 (14 February 2023)
Division:GENERAL DIVISION
File Number: 2022/0998
Re:Livinda Stevenson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

Decision
Tribunal:Member D Mitchell
Date:14 February 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; (2014) 144 ALD 133
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Member D Mitchell
14 February 2023
Introduction

On 1 June 2021, Ms Livinda Stevenson (the Applicant) lodged a claim for Disability Support Pension (DSP).[1] On the Applicant’s claim for DSP form, she listed her disabilities or medical conditions that significantly affect her ability to work to include “chronic arthritis – pain neck; lower back; both knees (possible total knee replacement) and anxiety, depression, restless legs syndrome, sleep disorder and panic attack.”[2]
[1] Exhibit 1, T Documents, T26, pages 93-127, Claim for Disability Support Pension.
[2] Exhibit 1, T Documents , T26 page 118, Claim for Disability Support Pension.
The Applicant’s claim was rejected on 3 August 2021[3] on the basis that the Applicant did not have an impairment rating of 20 points or more under the Impairment Tables.
[3] Exhibit 1, T Documents, T32, pages 145-146, Centrelink Notice: Rejection of DSP Claim.
The Applicant sought review of that decision[4] and, on 18 October 2021, an Authorised Review Officer (ARO) affirmed the decision.[5] The ARO found that the Applicant’s anxiety, depression, knee, back and shoulder pain were fully diagnosed but not fully treated and fully stabilised and therefore, could not be assigned an impairment rating. [6]
[4]     Exhibit 1, T Documents, T37, pages 152-153, Letter from Respondent to the Applicant referring her to an Authorised Review Officer.
[5]     Exhibit 1, T Documents, T39, pages 155-160, Authorised Review Officer Decision and Notes.
[6]     Exhibit 1, T Documents, T39, pages 156-160, 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).[7] On 2 February 2022, the SSCSD affirmed the decision to refuse her claim for DSP.[8]
[7] Exhibit 1, T Documents, T40, pages 161-162, Request for Statement from the SSCSD.
[8] Exhibit 1, T Documents, T2, pages 3-7, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 8 February 2022.[9]
[9] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 1 February 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 DSP at the date of her claim or within 13 weeks thereafter.
The Law
The relevant law in assessing a person’s qualification for 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 DSP. In the present case, the predominate qualification questions before the Tribunal are:
1.does the Applicant have a physical, intellectual or psychiatric impairment;[10]
2.do the Applicant’s impairments attract 20 points or more under the Impairment Tables;[11] and
3.does the Applicant have a continuing inability to work?[12]
[10]    Section 94(1)(a) of the Act.
[11]    Section 94(1)(b) of the Act.
[12]    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”.[13]
[13] Section 6(3)(a) of the Determination.
The word “permanent” takes on a specific meaning for the purposes of DSP. To be considered permanent for 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.[14] 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.
[14] 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.[15]
[15] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[16]
(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.
[16] 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.[17]
[17] 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.[18] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[19]
[18] Section 6(2) of the Determination.
[19] 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:
(i)if they do not have a severe impairment, have actively participated in a program of support (POS); and
(ii)be unable to work for at least 15 hours per week independently of a POS within the next 2 years; and
(i)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.[20]
[20] Section 94(3B) of the Act.
The Administration Act sets out that qualification for 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 DSP is the date the person becomes qualified.[21]
[21] Sections 41 and 42; clauses 3 and 4(1) of Schedule 2, Part 2 of the Administration Act.
Both the Tribunal and the Federal Court 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 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.[22]
[22] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at [34]; Fanning and Secretary, Department of Social Services [2014] AATA 447; (2014) 144 ALD 133, 139 at [32]; Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[28].
relevant period
The Relevant Period in this matter commenced on 1 June 2021, being the date the Applicant lodged her claim for DSP and ended 13 weeks later on 31 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.[23] The Respondent considers the Applicant’s impairments, for the purposes of the claim for DSP in question, consist of mental health,[24] spinal,[25] lower limb[26] and chronic pain[27] conditions.
[23]    Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 35.
[24]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraphs 37-52.
[25]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraphs 53-66.
[26]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 10-11, paragraphs 67-79.
[27]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 80-92.
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 has 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. 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 Health Professional Advisory Unit (HPAU) Report,[28] completed by Dr Nalayini Kanagaratnam dated 19 September 2022 accurately reflects the situation.
[28] Exhibit 2, Supplementary T Documents, ST24, pages 57-79, Health Professional Advisory Unit Report.
At the Hearing, the Applicant expressed confusion about having been encouraged to submit further information when the Relevant Period placed a constraint on what could be considered. It is important for the Tribunal to acknowledge that while the rules of evidence do not apply and all evidence that has been provided has been reviewed regardless of its date, it is the relevance that can be placed on that evidence for the purposes of the present application that is important. In circumstances where evidence has been provided that does not addressed the Applicant’s situation before or during the Relevant Period or has subsequently contradicted contemporaneous opinions without adequate explanation, that evidence has been given very little weight.[29]
Applicant’s evidence
[29] For example: Exhibit 1, T Documents, T25, page 92 and T34, page 148, Letters from Dr Leander Mitchell; Exhibit 2, Supplementary T Documents, ST22, pages 31-33, Letter from Dr Leander Mitchell and ST26, pages 81-83, Report of Dr Tahir Mir to Dr Girlie Mangadap.
At Hearing the Applicant’s evidence was in whole consistent with that of her written submissions.
At the Hearing, the Applicant told the Tribunal that:
·Her primary chronic condition relates to her cervical spine, in particular, the left side of her neck (primary condition).
·It was this condition that she was contesting and that she felt it was fully diagnosed, fully treated and fully stabilised and on that basis, she should be granted the DSP.
·She was not pressing any of the other conditions outlined in her application or the medical documents, which include ADHD, hypertension, fatty liver, restless legs, sleep disorder, lower back, knees or anxiety and depression.
·Those conditions were all connected to her primary condition.
·She has persistent pain and there is no cure, just self-management.
·She had received a lot of treatment from the Gold Coast Public Hospital. They have given her the tools she needs so they have discharged her to self-manage her pain.
·The left side of her neck is the problem, even after she walks there is pain but that is because of how the skeletal system works.
·She can walk her dog for 30 minutes but needs breaks.
·She could not sit in a car for 30 minutes and if she did, then she would need the driver to push her to help her get out.
·She is in pain when she twists.
·She could sit down for between 15-20 minutes but prefers to stand as it is less painful.
·She could do her washing, wash her hair and dress herself as she had no one to help her.
·She could pick up a light object from the floor, a coffee table or a dining table. She would just have to hold onto something to get up and would have to take it slow.
·Could bent or turn her neck without moving her body but it was difficult and she did what she had to because she had no one to help.
·She self manages what she does all the time because she does not want to make her pain worse.
·Her knees did not stop her from doing things, they just limited what she could do.
·She wants to focus on the primary condition for this claim for DSP and she only brought up the other conditions because it is all related skeletally.
·The primary condition is the only one that was fully diagnosed, fully treated and fully stabilised.
·There are multiple causes for her anxiety and depression.
·Her anxiety and depression are her secondary condition and is affected by her chronic pain.
·The psychiatrist only spent 30 minutes with her and only talked about her medication at the end.
·She did not take the medication because she believes she has the right to be involved in and have a say about her treatment.
·Her psychologist and GP did not say she needed medication for her depression and anxiety and they are satisfied with her treatment.
·She had not been told that she needed to take antidepressants to be considered fully treated and fully stabilised.
On cross-examination, the Applicant:
·Said she could during the Relevant Period wash and dress herself, but predominately used her right arm.
·Confirmed the accuracy of the physio reports dated 30 September 2020 that she was at that time walking independently, without a gait and did not need a walking aid.
·When put to her that the Respondent contends that her lower limb conditions do not cause a severe functional impact, said that she just wanted to focus on her cervical spine and neck and that she only put in the other issues because they are related.
·She would like to try a neck brace.
·To do things on her phone, she has to lie down as when she sits down and bows, her head it aggravates her pain.
·When put to her that the physio reports of 14 October and 12 November 2020 said that she had full range of cervical movement in all directions, however might get pain at the end of full range movement and asked if she agreed, said that she agreed but that was because she was taking a test.
·Said that when she is doing a test that involves rotation of her shoulders slowly, it does not mean that pain is not here. No test will show the amount of pain she is in.
·Said chronic pain is what it is about, not how she rotates.
·Said that if she has to move her neck, she can do it, however she self manages the pain and tries not to aggravate it.
·When put to her that the Respondent contends that her spinal condition was fully diagnosed, fully treated and fully stabilised, however only attracts 10 impairment points on Table 4 of the Impairment Tables and asked what she said to that, said that her primary condition was her only basis for the application and that the Respondent did not know or see her in normal everyday living, so it is hard to prove.
·Said that there should be a broad meaning of impact on daily activities. When she does things it aggravates the pain, she does not get any physical support.
HPAU Report
In a report dated 19 September 2022, Dr Kanagaratnam of the Respondent’s Health Professional Advisory Unit (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 Kanagaratnam 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.[30]
[30] Exhibit 2, Supplementary T Documents, ST24, page 57, Health Professional Advisory Unit Report.
Having analysed the evidence before her, Dr Kanagaratnam provided the following answers to the questions put to her:[31]
[31]    Exhibit 2, Supplementary T Documents, ST24, pages 75-78, Health Professional Advisory Unit Report.
Mental Health Condition
1.        Was [the Applicant’s] mental health condition fully diagnosed during the qualification period? If so, what is the appropriate diagnosis? Yes, this was FD. Dr L Mitchell, clinical psychologist diagnosed generalised anxiety disorder (with panic attacks at times) and depression (31/05/2021).
2.        Was [the Applicant’s] mental health condition fully treated and fully stabilised during the qualification period? I would deem this condition not FTS. Dr L Mitchell in report of 31/05/2021 recorded that [the Applicant] is seeking a referral to a psychiatrist to discuss the potential benefit of anti-depressant medication for her current mental health condition. Dr T Mir (02/10/2021) was consulted outside the relevant period and recommended [the Applicant] trial sertraline. He was aware of her non-alcoholic fatty liver disease. He recommended that [the Applicant] commence low dosage and upgrade slowly. Treating GP, Dr G Mangadap in Patient Health Summary (02/10/2021) recorded sertraline 50mg and temazepam 10 mg before bed. When ARO spoke to [the Applicant] (18/10/2021), [The Applicant] reported ceasing the medication soon after she commenced as she did not feel better and was worried about the effects on her liver. At the AAT1 hearing, Member Reid recorded that as the psychiatric assessment and anti-depressants were commenced after the relevant period, it cannot be considered FTS. [The Applicant] in documentation dated 05/04/2022 recorded that ‘there is no chemical drugs that could fix the nature of my anxiety and depression’. Review of [the Applicant’s] PBS record from 01/06/2019 to 18/05/2022 does not record any dispensations for sertraline, temazepam or quetiapine.
Please consider and comment on the following:
a.        Had [the Applicant] received reasonable treatment for her mental health condition during the qualification period? No, although she had received substantial psychological input (7 sessions from a general psychologist and 15 sessions from a clinical psychologist) as both her treating psychologist as well as doctor felt she may benefit from psychiatric review with view to trialling pharmacotherapy, during the relevant period, this cannot be considered FTS.
b.       Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of her mental health condition (whether or not recommended by her treating team)? As indicated above, reasonable treatment would be to explore if her condition would be responsive to anti-depressant medication.
c.        If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment? No – there is a bidirectional relationship between mood and pain. Improvement in function is expected.
3.        If [the Applicant’s] mental health condition was considered permanent (that is, fully diagnosed, fully treated and fully stabilised) during the qualification period, what in your opinion, would be the appropriate impairment rating under the impairment Tables for the resulting impairments and why? If [the Applicant’s] mental health condition was FDTS, there is no evidence that it met ‘severe’ criteria under Table 5 – Mental Health Function during the relevant period. Contemporaneous records during the relevant period from Dr L Mitchell (09/08/2021) did not indicate severe mental health impairment. When treating GP, Dr G Mangadap did refer [the Applicant] to a psychiatrist –it was for ‘opinion and management / assessment for ADHD (Attention Deficit Hyperactivity Disorder’ (04/06/2021). Dr T Mir’s report of 02/10/2021 recorded several ongoing psychosocial stressors and did not indicate severe mental health impairment. Overall, [the Applicant’s] mental health impairment would align at the 5 point rather than 20 point impairment level meeting criteria (1) (b), (c), (e) and (f). In her subsequent report of 21/06/2022, Dr L Mitchell paints a far more mentally impaired [the Applicant]. [The Applicant] may have well deteriorated. However, the severity of impairment that Dr L Mitchell outlined in this report is not evident in any of the contemporaneous or collateral medical information during the relevant period of this DSP application. [The Applicant] (26/04/2022) continued to document that her primary condition is chronic musculoskeletal pain.
In your answer please specify which Table/s should appropriately be used to rate any resulting functional impairment and which descriptors in the relevant Table/s are met and why.
Chronic pain
1.        Was [the Applicant’s] chronic pain condition fully diagnosed during the qualification period? Is so, what is the appropriate diagnosis? Yes, this is FD. [The Applicant] consulted her treating GP, Dr G Mangadap as well as the outpatient orthopaedic and neurosurgical clinics at GCUH. Her musculoskeletal conditions were extensively investigated.
2.        Was [the Applicant’s] chronic pain condition fully treated and fully stabilised during the qualification period? Yes, there is substantial evidence that her chronic spinal and knee problems were FTS. This was treated with physiotherapy and chiropractic treatment. Through GCUH [the Applicant] received further input from physiotherapy and she was referred for psychological support. Through this hospital, she also consulted a dietician and the pharmacist for optimisation of her treatment as well as receiving education on self-management of her condition. These are all components of a multidisciplinary chronic pain program. This condition was deemed not FTS by the JCA, ARO and AAT1 member, as she had not participated in a chronic pain program. However, as indicated, she participated in the various components of this program from 2019 to 2021 and it is unlikely she would gain any further benefits from the chronic pain program.
Please consider and comment on the following:
a.        Had [the Applicant] received reasonable treatment for her chronic pain condition during the qualification period? Yes, as indicated above.
b.       Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of her chronic pain condition (whether or not recommended by her treating team)? No
c.        If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment? Not applicable.
3.        If [the Applicant’s] chronic pain condition was considered permanent (that is, fully diagnosed, fully treated and fully stabilised) during the qualification period, what is your opinion, would be the appropriate impairment rating under the Impairment Tables for the resulting impairments and why?
The most appropriate tables to consider would be Tables 4 (Spinal Function) and 3 (Lower Limb Function) which adequately captures the restriction in physical activity due to her musculoskeletal conditions.
Her shoulder problems by the time of her DSP application appeared to have resolved. Her left upper arm persisting symptoms have been attributed secondary to spinal pathology and are factored under the ratings allocated under Table 4 – Spinal Function.
It would be inappropriate to consider Table 1 – Functions of Physical Exertion and Stamina to rate her impairment, as fatigue did not feature prominently. This is evidenced in various sources. Dr T Mir (02/10/2021) recorded that she enjoyed hobbies of physical activity and taking her dog for walks and this level of function was also reported to Member M Reid at AAT1 hearing. Physiotherapist Mr P Hawker (05/05/2021) recorded that she was able to walk for an hour.
In your answer please specify which Table/s should appropriately be used to rate any resulting functional impairment and which descriptors in the relevant Table/s are met and why.
Spinal condition
1.        Was [the Applicant’s] spinal condition fully diagnosed during the qualification period? If so, what is the appropriate diagnosis? Yes, this condition was FD. [The Applicant] had consistently seen her GP as well as consulted the specialist neurosurgical unit at GCUH. She was also investigated appropriately with plain x-rays, CT scanning and MRI investigations. The diagnosis is cervical and lumbar spondylosis or osteoarthritis affecting her spine.
2.        Was [the Applicant’s] spinal condition fully treated and fully stabilised during the qualification period?
Please consider and comment on the following:
a.        Had [the Applicant] received reasonable treatment for her spinal condition during the qualification period? Yes, her spinal condition had been extensively managed through a neurosurgical specialist service at a teaching hospital. She underwent adequate courses of physiotherapy, exercise physiology, chiropractic treatments and received psychological input to manage the impact of distress and mood on her chronic pain experience. She had also consulted a pharmacist at GCUH to optimise pain relief as well as seen a dietician and received education on chronic pain with a focus on embracing self-management.
b.       Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of her spinal condition (whether or not recommended by her treatment team)? No
c.        If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment? Not applicable
3.        If [the Applicant’s] spinal condition was considered permanent (that is, fully diagnosed, fully treated and fully stabilised) during the qualification period, what is your opinion, would be the appropriate impairment rating under the Impairment Tables for the resulting impairments and why?
[The Applicant] has a long history of chronic cervical and lumbar spinal pain. Her predominant complaint has been chronic neck pain with left arm pain and rating under Table 4 –Spinal Function would be the most appropriate table to consider. She would meet criteria (1) (b) at the 10-point level, which would also factor her left arm symptoms.
In your answer please specify which Table/s should appropriately be used to rate any resulting functional impairment and which descriptors in the relevant Table/s are met, and why.
Bilateral knee osteoarthritis
1.        Was [the Applicant’s] bilateral knee osteoarthritis fully diagnosed during the qualification period? If so, what is the appropriate diagnosis? Yes, [the Applicant’s] bilateral knee osteoarthritis was fully diagnosed and was managed by the orthopaedic team (Dr D Pitchford, GCUH). This condition was appropriately investigated with plain x-rays and MRI investigation.
2.        Was [the Applicant’s] bilateral knee osteoarthritis fully treated and fully stabilised during the qualification period? Yes, she received conservative care with analgesia, physiotherapy, exercise physiology, input from GCUH pharmacist to optimise her pain management. She was also given education on pain management. She was referred to see the psychologist by this service to manage her stress and mood as this would impact on her pain level.
Please consider and comment on the following:
a.        Had [the Applicant] received reasonable treatment for her bilateral knee osteoarthritis during the qualification period? Yes – she received extensive conservative care and knee replacement surgery not indicated at this stage.
b.       Is there any further treatment you would consider appropriate for [the Applicant] to undertake in respect of her bilateral knee osteoarthritis (whether or not recommended by her treating team)? No. [The Applicant] is underweight (body mass index of 19) and had tried to remain active (particularly walking her dog) which has helped manage this condition.
c.        If such treatment were undertaken, can you conclude that significant functional improvement would be unlikely to result with further treatment? Not applicable
3.        If [the Applicant’s] bilateral knee osteoarthritis was considered permanent (that is, fully diagnosed, fully treated and fully stabilised), during the qualification period, what in your opinion, would be the appropriate impairment rating under the impairment Tables for the resulting impairments and why? I would deem this condition FDTS. Radiological changes do not necessarily correlate with clinical symptoms, although I concede that this condition can fluctuate with regard to pain severity. With regard to function, given her own reporting of walking tolerances both at the AAT hearing (02/02/2022) and to Mr P Hawker, physiotherapist at GCUH (05/05/2021) that she can walk up to sixty minutes, she would score 0 points from Table 3 – Lower Limb Function.
In your answer please specify which Table/s should appropriately be used to rate any resulting functional impairment and which descriptors in the relevant Table/s are met, and why.
consideration
Did the Applicant’s conditions attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?

The Tribunal acknowledges that at the Hearing, the Applicant made it clear that she was only seeking to be granted the DSP based on her cervical spine condition, particularly the pain to the left side of her neck. For completeness, however, the Tribunal will also address the other conditions of which were considered to be relevant throughout the review process.
The issue with Applicant’s sole focus on her primary condition is that her evidence clearly indicated that the resulting functional impairments could not be assigned 20 points or more under the Impairment Tables. As such, taking such a narrow view was not of assistance to the Applicant’s present claim for DSP.
As set out below, the Tribunal accepts the Applicant’s evidence of which is corroborated by medical evidence and is not disputed by the Respondent that her spinal, lower limb and chronic pain conditions were fully diagnosed, fully treated and fully stabilised during the Relevant Period. The Tribunal also accepts that these conditions cause the Applicant a great deal of pain and affect her daily living activities and impact on both her physical and mental health. The Tribunal is, however, limited to assessing the Applicant’s eligibility for DSP in accordance with the statutory requirements.
Mental Health Condition
The evidence before the Tribunal indicates that the Applicant’s depression and anxiety conditions were fully diagnosed during the Relevant Period by Dr Leander Mitchell, clinical psychologist and clinical neuropsychologist and Dr Girlie Mandgadap, general practitioner. This is not disputed by the Respondent[32] and is consistent with the view of

Dr Kanagaratnam as extracted above.
[32] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 6, paragraph 37.
The Respondent contended that the Applicant’s mental health condition was not fully treated and fully stabilised during the Relevant Period.[33]
[33] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 6-8, paragraph 38-52.
In her evidence to the Tribunal, the Applicant outlined that she did not commence the pharmaceutical regime recommended by Dr Mir. The evidence provided by Dr Mitchell and Dr Mangadap that around and during the Relevant Period, further treatment was being sought in relation to the Applicant’s mental health condition.
Based on the evidence before it, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was fully diagnosed, however was not fully treated and fully stabilised as it was awaiting specialist review, of which resulted in the recommendation of pharmaceutical treatment with the goal of improving the condition. Dr Mitchell’s evidence with regards to the Relevant Period was contradictory and as such, unhelpful to this application. Further, the Applicant gave evidence that she had not and would not engage with pharmaceutical treatment recommended by Dr Mir in relation to this condition. The Applicant further gave evidence that her only fully diagnosed, fully treated and fully stabilised condition was the primary condition.
Consequently, the Tribunal finds that during the Relevant Period, the Applicant’s mental health condition was not permanent for the purposes of applying the Impairment Tables. As such, the Tribunal is unable to assign impairment points under the Impairment Tables for this condition.
It is clear from the full body of evidence before the Tribunal that the status of the Applicant’s mental health conditions appears to have changed during the time between the Applicant engaging with Dr Mir and the hearing of this matter. As such, it may be of benefit for the Applicant to make a new claim for DSP so that the new evidence can be assessed in relation to such a claim.
Spinal condition
The evidence before the Tribunal clearly provides that the Applicant had a spinal condition that was fully diagnosed during the Relevant Period. While the Tribunal accepts that the Applicant seeks to only refer to what she sees as her primary condition, being the chronic condition that relates to her cervical spine, in particular, the left side of her neck, the Tribunal finds that based on the evidence before it, her spinal condition includes cervical and lumbar spondylosis affecting her spine.
The Respondent sought to rely on the opinion provided by Dr Kanagaratnam (as outlined above) and contended that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could be assigned 10 points on Table 4 of the Impairment Tables.[34]
[34] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraphs 53-66.
Having reviewed the evidence before it and in particular considering that provided by the Applicant at the Hearing, the Tribunal agrees with the opinion of Dr Kanagaratnam.
The Tribunal notes that Table 4 of the Impairment Tables deals with functional impairments resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck. Table 4 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[35]
[35] Impairment Table 4 – Spinal Function, Part 3 of the Determination.

10

There is a moderate functional impact on activities involving spinal function.

(1)      The person is able to sit in or drive a car for at least 30 minutes, and at least one of the following applies:

(a)      the person is unable to sustain overhead activities (e.g. accessing items over head height); or

(b)      the person has difficulty moving their head to look in all directions (e.g. turning their head to look over their shoulder); or

(c)      the person is unable to bend forward to pick up a light object placed at knee height; or

(d)      the person needs assistance to get up out of a chair (if not independently mobile in a wheelchair).

20

There is a severe functional impact on activities involving spinal function.

(1)      The person is unable to:

(a)      perform any overhead activities; or

(b)      turn their head, or bend their neck, without moving their 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.

The Applicant’s evidence at the Hearing and throughout the review process was that she could, albeit with difficulty, remain seated for between 10 and 20 minutes, could bend forward to pick up a light object from the floor, a coffee table and dining table and perform overhead activities including washing her hair and hanging washing on the line. There was no corroborating evidence before the Tribunal that the Applicant was unable to, during the Relevant Period or thereafter, turn or bend her neck without moving her trunk. Consequently, the Applicant does not meet the relevant descripted to be assigned 20 points on Table 4 of the Impairment Tables.
Based on the evidence before it, the Tribunal finds that the Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and can be assigned a maximum impairment rating of 10 points on Table 4 of the Impairment Tables.
Lower limb condition
The evidence before the Tribunal provides that the Applicant’s bilateral knee osteoarthritis was fully diagnosed, fully treated and fully stabilised during the Relevant Period. This finding is not in dispute.[36]
[36] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 10, paragraphs 67-68.
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 sought to rely on the opinion provided by Dr Kanagaratnam (as outlined above) and contended that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and could not be assigned a rating on Table 3 of the Impairment Tables.[37]
[37] Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 8-10, paragraphs 53-66.
Having reviewed the evidence before it, and in particular considering that provided by the Applicant at the Hearing, the Tribunal agrees with the opinion of Dr Kanagaratnam.
The Tribunal notes that Table 3 of the Impairment Tables deals with functional impairments resulting in functional impairment when performing activities requiring the use of legs or feet. Table 3 provides that for a permanent condition to be assigned an impairment rating, it must meet the associated descriptors and relevantly provides:[38]
[38] Impairment Table 3 – Lower Limb Functions, Part 3 of the Determination.

Points

Descriptors

0

There is no functional impact on activities requiring use of the lower limbs.

(1)      The person can:

(a)      walk without difficulty on a variety of different terrains and at varying speeds; and

(b)      walk without difficulty around the home and community; and

(c)      kneel or squat and rise back to a standing position without difficulty; and

(d)      stand unaided for at least 10 minutes; and

(e)      use stairs without difficulty.

5

There is a mild functional impact on activities using lower limbs.

(1)      At least one of the following applies:

(a)      the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or

(b)      the person has some difficulty walking around a shopping mall or supermarket without a rest; or

(c)      the person has some difficulty climbing stairs; and

(2)      At least one of the following applies:

(a)      the person is unable to stand for more than 10 minutes;

(b)      the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.

The Applicant’s evidence at the Hearing and throughout the review process was that during the Relevant Period, her lower limb condition was not her primary condition. The Applicant gave evidence that she could stand for up to 30 minutes and that she finds it more comfortable to stand up than sit down. As such, while the Tribunal accepts that she had difficulty walking to and around local facilities and supermarkets and climbing stairs, the functional impairment resulting from her lower limb condition did not meet the 5 point descriptors as she could stand for more than 10 minutes at a time.
The Tribunal accepts that the Applicant’s lower limb condition did impact on her pain and functionality, however, considers that based on the evidence before it, her impairment is between the 0 point and 5 point descriptors. In such circumstances the Tribunal is limited to assigning the Applicant’s lower limb condition zero points on Table 3 of the Impairment Tables.[39]
[39] Section 11(1)(c) of the Determination.
Consequently, based on the evidence before it, the Tribunal finds that the Applicant’s lower limb condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, however, can be assigned an impairment rating of zero on Table 3 of the Impairment Tables.
Chronic pain condition
The evidence before the Tribunal clearly provides that the Applicant had a chronic pain condition that was fully diagnosed, fully treated and fully stabilised during the Relevant Period.
The Respondent sought to rely on the opinion provided by Dr Kanagaratnam (as outlined above) and contended that the Applicant’s chronic pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period and had already been appropriately rated under Tables 3 and 4 of the Impairment Tables.[40]
[40] Exhibit 3, Secretary’s Statement of Facts & Contentions, page 11, paragraphs 80-82.
The Respondent contended that:[41]
[41]    Exhibit 3, Secretary’s Statement of Facts & Contentions, pages 11-12, paragraphs 83-92.
83.      The Rules at subsection 6(9) provides that there is no table dealing specifically with pain and in cases of chronic pain any resulting impairment should be assessed using the table relevant to the area of function affected.
84.      In progress notes dated 12 November 2020 Ms Jasinska (Physiotherapist) recorded that the Applicant was ‘doing lots of walking – at least 30 min/day’ (ST31, 206).
85.      In progress notes dated 5 May 2021 Mr Hawker (Senior Physiotherapist) recorded that the Applicant walked up to 60 minutes a day (ST31, 198).
86.      In a letter dated 18 June 2021 Ms Horan (Musculoskeletal Physiotherapist) wrote to Dr Mangadap GP and noted that the Applicant was able to manage and continue living a healthy lifestyle with exercise (T30, 135).
87.      Dr Mir (Physiatrist) in this 2 October 2021 report noted that the Applicant enjoyed hobbies of physical activity and took her dog for a walk and that the Applicant displayed no signs of inattention (ST26, 82).
88.      The Applicant reported to the AAT1 that she enjoyed gardening and walking her dog (T2, 6), did some housework, cooking and washing and was able to independently dress herself (T2, 5). The Applicant noted she does not drive but does go to shops and can walk for a block (T2, 5).
89.      Dr Kanagaratnam in the 19 September 2022 HPAU report found that the evidence did not support a finding that the Applicant’s chronic pain condition caused fatigue like symptoms consistent with a rating under Table 1 and that the Applicant’s chronic pain condition was appropriately rated under Tables 3 and 4 (ST25, 76-77).
90.      Table 1 notes that a person has no functional impact on activities requiring physical exertion or stamina in circumstances where:
(1) The person is:
(a)       is able to undertake exercise appropriate to their age for at least 30 minutes at a time; and
(b)       has no difficulty completing physically active tasks around their home and community.
91.      The Secretary contends that available evidence indicates that the Applicant is able to undertake exercise appropriate for her age, being at least 30 minutes as demonstrated by the above evidence and there is no evidence the Applicant has difficulty completing physical active tasks around her home and community which have not already being more appropriately rated by Tables 3 or 4.
92.      The Secretary submits the Applicant attracts no rating under Table 1.
Having reviewed the evidence before it and in particular considering that provided by the Applicant at the Hearing, the Tribunal agrees with the opinion of Dr Kanagaratnam.
The Determination provides that there is no table dealing specifically with pain and in cases of chronic pain, any resulting impairment should be assessed using the table relevant to the area of function affected.[42] However, it also outlines that where multiple conditions cause a common impairment, a single rating should be assigned in relation to the common or combined impairment under the Impairment Tables.[43] Consequently, the Tribunal agrees that the Applicant’s chronic pain condition cannot be assessed separately to her spinal and lower limb conditions with regards to the assignment of impairment ratings under Tables 3 and 4 of the Impairment Tables.
[42] Section 6(9) of the Determination.
[43] Sections 10(5) and 10(6) of the Determination.
With regards to Table 1 of the Impairment Tables, the Tribunal agrees with the Respondent’s contentions and opinion of Dr Kanagaratnam that the evidence before it does not indicate functional impact on activities requiring physical exertion or stamina. The Applicant did not provide evidence that indicated that fatigue was an issue she was dealing with, rather it was pain and her management of that pain that was what was limiting her functionality.
Based on the evidence before it, the Tribunal finds that the Applicant’s chronic pain condition was fully diagnosed, fully treated and fully stabilised during the Relevant Period, however, could not be assigned an impairment rating under Table 1, 3 or 4 of the Impairment Tables.
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 she met the requirements of section 94(1)(c) of the Act.
Conclusion
The Tribunal is limited to considering the Applicant’s conditions during the Relevant Period and the supporting evidence as it relates to that Relevant Period. It may be that the Applicant’s conditions have worsened or have been treated and stabilised since the window of time that is currently before the Tribunal, being 1 June 2021 and 31 August 2021. The Tribunal notes that it is open to the Applicant to test her eligibility for DSP at any time.
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)Spinal condition was fully diagnosed, fully treated and fully stabilised and could be assigned 10 points under Table 4 of the Impairment Table;
(b)lower limb was fully diagnosed, fully treated and fully stabilised and could be assigned zero points under Table 3 of the Impairment Table;
(c)chronic pain condition was fully diagnosed, fully treated and fully stabilised and could not be assigned an impairment rating above zero on Table 1 of the Impairment Tables and could not be assigned a separate impairment rating on Tables 3 or 4 of the Impairment Tables; and
(d)mental health condition was fully diagnosed, however was not 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 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Member D Mitchell

..................................[SGD]......................................
Associate
Dated: 14 February 2023

Date of hearing: 1 February 2023

Applicant: By phone

Solicitors for the Respondent:
Ms Alicia Henderson
Services Australia

[2023] AATA 142

14 February 2023

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Statutory Construction

Date of hearing:	1 February 2023
Applicant:	By phone
Solicitors for the Respondent:	Ms Alicia Henderson Services Australia