Tayba and Secretary, Department of Social Services (Social services second review) - [2024] AATA 1590

Tayba and Secretary, Department of Social Services (Social services second review) [2024] AATA 1590 (13 June 2024)
Division: GENERAL DIVISION
File Number: 2023/2083
Re:Bilal Tayba
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Mrs J C Kelly, Senior Member
Date:13 June 2024
Place:Sydney

The reviewable decision dated 21 February 2023 is affirmed.
.................................[sgd].......................................
Mrs J C Kelly, Senior Member
CATCHWORDS
SOCIAL SECURITY – disability support pension (DSP) application – whether the applicant qualified for DSP during the relevant qualification period – whether the applicant has a continuing inability to work – whether the applicant has a physical, mental or psychiatric impairment – mental health condition – spinal condition – bilateral sensorineural hearing loss – diabetes – tinnitus – vertigo – hypertension – shoulder and upper arm condition – knee pain – respiratory disorder – whether the applicant’s disabilities may be assigned a relevant impairment rating – whether the applicant has a severe impairment – reviewable decision affirmed
LEGISLATION
Social Security Act 1991 (Cth)
Social Security (Active Participation for Disability Support Pension) Determination 2014
Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
CASES
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Fanning and Secretary, Department of Social Services [2014] AATA 447
Gallacher v Secretary, Department of Social Services [2015] FCA 1123
REASONS FOR DECISION
Mrs J C Kelly, Senior Member
13 June 2024
Introduction

Mr Tayba is 49 years old. He received Disability Support Pension (DSP) from 5 November 2014 until it was cancelled on 29 January 2022 because he was overseas for more than 28 days. He did not seek to have that decision reviewed.
This matter is concerned with Mr Tayba’s new claim for DSP submitted on 16 May 2022. It was rejected on 4 August 2022 for reasons I will detail in the context of the criteria that he has to satisfy. He sought review within the Department and then by the Social Services and Child Support Division of the Tribunal (AAT1). On 21 February 2023 AAT1 affirmed the decision to reject his DSP claim (the reviewable decision).
Qualification criteria for Disability Support Pension
Mr Tayba has to satisfy the criteria for DSP on the day he lodged his claim, 16 May 2022, or within 13 weeks after that date (15 August 2022) (the qualification period).
Subsection 94(1) of the Social Security Act 1991 (Cth) (the Act) provides:
94. Qualification for disability support pension–continuing inability to work
(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[1]; and
c)    One of the following applies:
i.The person has a continuing inability to work (CITW);
ii.The Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
[1] Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011
Points under the Impairment Tables cannot be allocated to a condition unless that condition is permanent which requires that the condition must be fully diagnosed by an appropriately qualified medical practitioner and be fully treated and stabilised and the resulting impairment must be likely to persist for more than two years (subsections 6(3), (4), (5) and (6) and (7) of the Impairment Tables).
If a condition is found to be permanent, symptoms reported by a person in relation to their condition can only be taken into account where there is corroborating evidence (subsection 8(1) of the Impairment Tables).
Medical reports that come into existence after the qualification period can only be relevant to the extent that they cast light on Mr Tayba’s condition during the qualification period.[2] I do not refer to evidence that does not do so.
[2] Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922; Fanning and Secretary, Department of Social Services [2014] AATA 447; Gallacher v Secretary, Department of Social Services [2015] FCA 1123, [25]-[29].
If an impairment falls between two impairment ratings, the lower rating is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied (paragraph 11(1)(c) of the Impairment Tables).
The Impairment Tables set out very specific criteria for assessing the points to be allocated for assessing the extent of the functional impact of a particular condition. For that reason, I set out the relevant tables in full, below.
The Secretary accepts that during the qualification period, Mr Tayba had impairments of depression, cervical disc prolapse and lumbar disc prolapse, bilateral sensorineural hearing loss, vertigo, diabetes and hypertension, and therefore satisfies paragraph 94(1)(a) of the Act.
The Secretary accepts that:
(a)The condition depression was fully diagnosed, treated and stabilised during the qualification period, and attracted an impairment rating of 10 points under Table 5 (Mental Health Function);
(b)The condition spinal disorder was fully diagnosed, treated and stabilised during the qualification period, and attracted an impairment rating of 10 points under Table 4 (Spinal Function);
(c)The condition hearing loss was fully diagnosed, treated and stabilised during the qualification period, and attracted an impairment rating of 0 points under Table 11 (Hearing and other Functions of the Ear);
(d)The conditions of vertigo, diabetes and hypertension were diagnosed, but not fully treated and stabilised during the qualification period.
Therefore, the Secretary accepts that Mr Tayba has a total of 20 points under the Impairment Tables for two conditions and satisfies section 94(1)(b) of the Act.
There is no evidence that Mr Tayba was participating in the supported wage system referred to in subsection 94(1)(c)(ii) of the Act at the time of the claim.[3] Therefore, he must satisfy subsection 94(1)(c)(i) of the Act that he has a continuing inability to work.
[3] Email from the Respondent dated 1 March 2024 and Mr Tayba’s acceptance of that proposition during a telephone directions hearing on 15 March 2024.
Continuing inability to work
The term ‘continuing inability to work’ is defined in subsection 94(2) of the Act:
94(2) A person has a continuing inability to work because of an impairment if the Secretary is satisfied that:
(aa) ina case where the person’s impairment is not a severe impairment within the meaning of subsection (3B) or the person is a reviewed 2008-2011 DSP starter who has had an opportunity to participate in a program of support – the person has actively participated in a program of support within the meaning of subsection (3C), and the program of support was wholly or partly funded by the Commonwealth; and
(a)in all cases--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)in all cases--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.
A ‘severe impairment’ is one that attracts 20 points or more under a single Impairment Table (Section 94(3B) of the Act).
The Secretary contends that Mr Tayba does not have a ‘severe impairment’ because he has a total of 20 points assigned to two impairments. Therefore, to satisfy subsection 94(2)(aa) of the Act, he must have actively participated in a program of support (POS) as defined in subsection 94(5) of the Act. A person must satisfy the requirements specified in a legislative instrument made by the Minister to have actively participated in a POS (subsection 94(3C) of the Act). The relevant POS determination is the Social Security (Active Participation for Disability Support Pension) Determination 2014 (POS Determination).
The Secretary contends that Mr Tayba has not actively participated in a POS, although acknowledging that Mr Tayba’s inability to complete a POS in the three years prior to his claim made on 16 May 2022, that is from 16 May 2019 until 15 May 2022, is partly attributable to his receiving DSP until 29 January 2022.
There is no evidence to suggest that Mr Tayba did actively participate in a POS at all during the three year period from 16 May 2019 until 15 May 2022. There is no evidence that he falls within any of the exceptions set out in the POS Determination in subsections 7(3) or 7(4) of the POS Determination because he has not completed a POS before he claimed DSP and was not participating in a POS that was terminated prior to his date of claim due solely to his impairments.
He cannot satisfy subsection 7(5) of the POS Determination because he was not participating in a POS at the end of the relevant period and was not prevented solely because of his impairment from improving his capacity to prepare for, find, or maintain work through continued participation in the program.
Therefore Mr Tayba cannot satisfy section 94(2)(aa) of the Act. It follows that to qualify for DSP he must have a severe impairment, that is, an impairment to which 20 points is assigned under the relevant Impairment Table. My task is to consider each condition Mr Tayba suffers and determine the points to be assigned, applying the relevant Impairment Table.
The points to be assigned to Mr Tayba’s impairments
Some General Observations
Relevantly, Mr Tayba’s physical and mental health conditions began after he was involved in a motor vehicle accident in 2008. There are many medical reports, particularly in 2013 and 2014 when it seems Mr Tayba was engaged in legal proceedings about his injury.
Mr Tayba has travelled overseas on the following occasions:
14 July 2016 to 26 August 2016
4 December 2016 to 22 December 2016
30 June 2018 to 20 July 2018
29 September 2018 to 14 October 2018
10 April 2019 to 19 May 2019
27 September 2019 to 13 October 2019
1 January 2022 to 15 May 2022
22 September 2022 to 9 October 2022
He reported that while travelling overseas he did not need to be accompanied or require assistance from a carer, however, when in Australia he is dependent on a carer for activities of daily living.
In the medical form completed on 10 September 2021 by Dr Alsayed, General Practitioner (GP) in support of carer payment application, Dr Alsayed reported that Mr Tayba was independent in grooming, that is personal care, shaving, doing hair, washing face. He was independent in toilet use on and off, and feeding. Minor help was needed for transfers (verbal or physical). He needs the help of one person for mobility (verbal or physical). Some help with dressing and stairs. He was dependent for bathing.
I do not refer specifically to imaging studies included in the evidence unless they record symptomatology or functional impacts of the condition. Imaging studies form part of the investigations medical practitioners undertake to determine a diagnosis and treatment. Findings recorded on imaging do not necessarily result in symptoms. I give greater weight to the opinion of the relevant medical practitioner who considers those reports and other information including the patient’s medical history and reported symptomatology and functional impacts.
I found the report provided by a medical advisor with the Health Professional Advisory Unit (HPAU) (the HPAU medical advisor) dated 24 August 2023 persuasive in relation to the conditions it considered: depression, spinal function and bilateral sensorineural hearing loss. The report was a comprehensive assessment of the available evidence. The HPAU medical advisor had attempted to speak to Dr Alsayed, Mr Tayba’s general practitioner, Michael Salnikov, physiotherapist, and the employment provider without success. She did speak to Aiman Mahameed, mental health social worker. She considered the progress notes from Mr Salnikov.
Unfortunately, some of the expert evidence is of little assistance because it does not address a specific condition in terms of the criteria in the Act and the Impairment Tables. For example, the report of Dr Nadeem Sheikh dated 29 May 2023 gives opinions about Mr Tayba’s functional capacity due to the ‘long term nature of his psychological & physical disabilities’. He does not specify what the conditions are or identify the functional impact of specific conditions in terms that assist in assessing the points to be assigned under the Impairment Tables. He felt that Mr Tayba’s ‘condition is fully diagnosed treated and stabilised’ and ‘he has continuing physical and psychological disabilities and is unfit to work and would not be able to work in any capacity in the next three to four years’. Dr Sheikh is a Rehabilitation and Pain Management Consultant who has a B.Sc.(Psy), M.Sc (Rehab.) and Ph.D. He is not a medical practitioner. He does not purport to be a psychologist. He is a Member of Australian Pain Society, Member of Australian Rehabilitation Society, and Member of Australian Counselling Association.
Condition 1 - Mental health condition
Over the years, there have been various diagnoses of Mr Tayba’s mental health condition which is contributed to by his multiple medical conditions. Depression seems to be the appropriate diagnosis currently. I am satisfied that Mr Tayba’s depression was fully diagnosed, treated and stabilised during the qualification period. He was first diagnosed with Post Traumatic Stress Disorder in 2010 by a forensic psychiatrist. In 2014 he saw a psychiatrist twice for ongoing depressive symptoms. From 2011 to 2016 he regularly saw a psychologist for adjustment disorder with anxiety and depressed mood. He attended a mental health social work practitioner 22 times since 2020 and continues attending that practitioner. He has been treated with antidepressant medication sporadically since 2011. The issue is whether Mr Tayba’s depression has a severe functional impact on activities involving mental health function.
The relevant Impairment Table is Table 5 (Mental Health Function). It specifies:
There is a severe functional impact on activities involving mental health function.
1) The person has severe difficulties with most of the following:
a)self care and independent living;
Example: The person needs regular support to live independently, that is, needs visits or assistance at least twice a week from a family member, friend, health worker or support worker.
b)social/recreational activities and travel;
Example: The person travels alone only in familiar areas (such as the local shops or other familiar venues).
c)interpersonal relationships;
Example 1: The person has very limited social contacts and involvement unless these are organised for the person.
Example 2: The person often has difficulty interacting with other people and may need assistance or support from a companion to engage in social interactions.
d)concentration and task completion;
Example 1: The person has difficulty concentrating on any task or conversation for more than 10 minutes.
Example 2: The person has slowed movements or reaction time due to psychiatric illness or treatment effects.
e)behaviour, planning and decision-making;
Example: The person’s behaviour, thoughts and conversation are significantly and frequently disturbed.
f)work/training capacity.
Example: The person is unable to attend work, education or training on a regular basis over a lengthy period due to ongoing mental illness.
Dr Alsayed wrote the following about Mr Tayba’s mental health in his letter dated 26 May 2022. Major depressive disorder which began several years ago and which has since worsened. Mr Tayba complained of poor memory, depressed mood, lack of energy and social isolation, poor concentration, poor sleep with nightmares, waking up anxiously and abruptly, and suffers anxiety symptoms with shortness of breath and reduced appetite. He has no motivation or energy and has difficulty controlling his emotions. Seen by psychologist for CBT. Mr Tayba was on strong anti-depression medication.
On the same day, Dr Alsayed administered a K10 mental health assessment. The result was 46. Mr Tayba had depressed mood, poor attention/concentration and poor memory. Treatment was counselling. His medication was Panadeine Forte for back pain.
In his letter dated 26 May 2022, Mr Mahameed, a Registered Mental Health Social Work Practitioner, wrote the following about his treatment of Mr Tayba. There had been eight sessions to date. The psychological strategies/intervention included CBT (cognitive behavioural therapy), IPT (interpersonal psychotherapy) and psychoeducation. Further counselling may be needed to prevent relapses and deterioration. He will not be fit for any type of work or study for more than 24 months. Mr Tayba suffers from multiple chronic medical conditions contributing to his depression and anxiety since his physical injury many years ago.
A Job Capacity Assessment Report (JCA) dated 4 August 2022 was prepared by a Rehabilitation Counsellor with a contribution by a registered psychologist. A telephone assessment took place on 11 July 2022. In addition to the matters summarised from other reports above, Mr Tayba reported experiencing side-effects from pain medication and anti-depressant medications. He takes Pristiq daily.
The JCA reported that Mr Tayba said the following. Since he separated from his wife, he struggles with his mood and was unable to connect with others. His pain symptoms affect his mood and concentration. He often neglects personal hygiene. He does not travel or participate in recreational activities. He experiences side-effects of medication which makes it difficult to concentrate on tasks such as studying. He has not worked for over 10 years.
The JCA found that the condition was verified by medical evidence, fully diagnosed, treated and stabilised. Impairment Table 5 applies. The JCA recommended a rating of 10 points.
On 10 August 2022, Dr Alsayed referred Mr Tayba to Dr Nadeem Sheikh for opinion and management of chronic severe neck and back pain.
In relation to Mr Tayba’s psychological condition, Dr Sheikh reported on 29 August 2022 that Mr Tayba experienced a major depressive episode in addition to his physical problems. He was divorced from his first wife in 2012 and separated from his second wife in 2021, mainly due to his psychological condition. My Tayba suffered from :
·Depressed mood most of the day every day
·Stress/depression/extreme anxiety
·Insomnia
·Feelings of worthlessness
·High level of fatigue/loss of energy
·Diminished ability to concentrate
·Short term memory loss
·Difficulty with sleep & distressing dreams
Dr Sheikh recommended future rehabilitation measures including referral to a clinical psychologist for initial assessment and treatment of his psychological symptoms, pain management and trauma counselling.
In his report dated 29 May 2023, which referred to an assessment date of 25 August 2022, Dr Nadeem Sheikh expressed the opinion that Mr Tayba’s functional condition in May 2022 was very similar to his assessment in his report dated 29 August 2022. Further, he felt that Mr Tayba’s condition was fully diagnosed, treated and stabilised and he has continuing physical and psychological disabilities and is unfit to work and would not be able to work in any capacity in the next 3 to 4 years.

A further JCA (JCA2) dated 20 October 2022 was conducted by a registered nurse and contributed to by a rehabilitation counsellor and a registered psychologist. The assessment was by telephone. It is only necessary to include significant information not otherwise referred to. JCA2 assigned 10 points to this condition.
The HPAU medical advisor was satisfied that Mr Tayba’s mental health condition was fully diagnosed, treated and stabilised and that the resulting impairments are likely to persist for more than 2 years. She assigned 10 points under the Impairment Tables for Mr Tayba’s depression. She commented that there were some inconsistences in the evidence which made determining the impairment rating challenging.
I am satisfied that the appropriate impairment rating for Mental health function is 10 points.
Condition 2 – Spinal condition
I am satisfied that Mr Tayba’s spinal condition, described as cervical and lumbar disc disease and associated chronic neck and back pain, was fully diagnosed, treated and stabilised during the qualification period. The relevant Impairment Table is Table 4 (Spinal function).
Table 4 specifies:
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.
On 24 May 2022, Dr Alsayed wrote a referral to Dr Nazneen Akhter, rehabilitation physician for opinion and management of Mr Tayba’s chronic back pain. No report from that doctor was provided.
Dr Alsayed wrote the following about Mr Tayba’s spinal condition in his letter dated 26 May 2022. Constant low back pain aggravated by long sitting or standing and repetitive work. Restricted lumbar flexion. Mr Tayba could lift weights up to 2kg in both hands but not for a long time. Lifting from floor to waist was not possible because of restricted spine flexion. He was prescribed Paracetamol/Codeine phosphate tablet for his back pain.
Mr Tayba has a history of discopathy causing lower back pain radiating to his lower limbs. He finds that his back and knees ache if he walks too far and he feels uncomfortable if he walks on uneven ground.
Upon examination, there was a restriction of cervical spine movements (flexion, extension and rotation). There was restriction in all lumbar spine movements (flexion, extension, rotation and lateral flexion).
On 27 May 2022, Michail Salnikov, physiotherapist, wrote that Mr Tayba had been treated for lower back pain. He requires ongoing physiotherapy and is unfit for work at present time.
Mr Tayba reported the following to the JCA assessors. He experiences back pain most of the time. Lying down provides some relief. He is restricted to walking 20-30 minutes as pain is increased and sitting for 20 minutes requires him to shift his posture. He moves his whole body when turning side to side. He is unable to bend to the ground or lift heavy objects. He avoids driving because of the range of movement limitations and medication. He suffers constant pain. When he drives, he relies on his car mirrors rather than turning his neck side to side. The pain radiates down to his shoulders, with severe pain to his left elbow in addition to numbness in his arms. He has difficulty performing activities above shoulder height due to pain.
The relevant impairment table is Table 4. The JCA found that this condition was fully diagnosed, treated and stabilised and that there is a moderate functional impact on activities involving spinal function, and accordingly recommended a rating of 10 points.
In his 29 August 2022 report, Dr Sheikh provided a brief history, which suggests that Mr Tayba injured his left shoulder in the motor vehicle accident in 2008 and underwent surgery on that shoulder at that time.
Dr Sheikh set out a Functional Tolerances Summary based on self-reporting and use of a jamar dynamometer to clarify Mr Tayba’s estimation of upper limb strength. Mr Tayba’s current tolerances were:
Walking:   10-15 min
Standing:  10-15 min
Sitting:  20-30 min
Driving:  20-30 min
Lifting:  2/3 kg
Dr Sheikh listed the reduced range of movement in relation to the cervical and lumbar spine and left shoulder. Bending was restricted. He set out lifting tolerances in units of ‘KGF’.
Dr Sheikh provided the following prognosis. Mr Tayba complains of aggravation of symptoms with cervical extension and left lateral flexion. He presents with significant loss of functional tolerances in his upper and lower limbs, particularly the left upper limb. He reported restricted functional tolerances to pushing, pulling and other manual activities. Forceful or prolonged use of left shoulder/arm is reported in sharp pain extending into the base of the neck and the onset of a headache activity. He is unable to lift or carry heavy objects and pain in the lower limb continues to be reported as being exacerbated by forceful dynamic use or by prolonged walking, standing and sitting activities.
Dr Sheikh set out comprehensive recommendations for rehabilitation, including continuing visits to Mr Tayba’s family doctor and referral to:
·a physiotherapist for assessment and treatment aimed at improving muscle relaxation and tolerance to fatigue
·rehabilitation counselling
·orthopaedic specialist for ongoing pain management program
·rehabilitation physician in relation to managing chronic pain
·continuing medication
JCA2 concluded that this condition was verified by medical evidence, fully diagnosed, treated and stabilised and assigned 10 points to this condition.
The HPAU medical advisor in her report dated 24 August 2023 concurred with the JCA and AAT1, concluding that Mr Tayba has moderate functional impact on activities for which 10 points should be assigned. The descriptors for a higher impairment rating were not sufficiently present to allow allocation of a severe rating.
I am satisfied that a rating of 10 points should be assigned for this condition.
Condition 3 – Bilateral sensorineural hearing loss
I am satisfied that Mr Tayba’s bilateral sensorineural hearing loss was fully diagnosed, treated and stabilised during the qualification period. The relevant Impairment Table is Table 11 (Hearing and other Functions of the Ear). It specifies:
There is a severe functional impact on activities involving hearing (communication) function or other functions of the ear even when using a hearing aid, cochlear implant or other assistive listening device or technology or sign language interpreting.
1) The person:
a)has severe difficulty hearing any conversation even at raised volume in a room with no background noise (that is, is unable to hear someone speaking to them in a loud voice, or is not able to hear someone shouting a warning (e.g. “Look out!”)); and
b)is unable to hear sounds needed for personal or workplace safety (e.g. a smoke alarm, fire evacuation siren, or car or truck horn); and
c)is reliant on captions to follow a television program or movie; and
d)needs to use a captioned telephone; and
e)is completely reliant in all situations on a recognised sign language (e.g. Auslan), lip reading, other non verbal communication method (e.g. note taking) to converse with others; or
2) The person has continual difficulty with balance (e.g. the person has continual dizziness or has to sit down or hold on to a solid object) or continual ringing in the ears that interferes with hearing, due to a medically diagnosed disorder of the inner ear (e.g. Meniere’s disease or tinnitus).
Christopher Zammit, audiologist found on 3 April 2014 that Mr Tayba had the following hearing loss: left ear: moderately severe to profound sensorineural hearing loss; right ear: moderately severe to profound sensorineural hearing loss.
According to Dr Alsayed in his 26 May 2022 report, the onset was in 2008. Mr Tayba advised that the 2008 car accident caused damage to his ears. Mr Tayba continues to wear heading aids.
Mr Tayba told the JCA assessors that hearing aids had limited functional impact and confirmed that he continues with them. The assessor reported that he was able to converse over the telephone without complications.
The JCA found the condition to be fully diagnosed, treated and stabilised but recommended a rating of 0 points under Impairment Table 11 – Hearing and other Functions of the ear.
JCA2 concluded that the condition was verified by medical evidence and fully diagnosed, treated and stabilised and assigned 0 points for this condition.
The HPAU report assigned 0 points for this condition because although Mr Tayba requires hearing aids, there is no evidence that he has difficulty hearing a conversation at an average volume in a room with background noise. The impairment lies between 0 and 5 points and therefore the lower rating is applied in accordance with the guidelines.
I am satisfied that 0 points is the appropriate rating for the condition bilateral sensorineural hearing loss for the reasons given by the HPAU assessor. There is no reliable medical evidence about the impact of this condition on Mr Tayba.
Condition 4 – Diabetes – Non Insulin Dependent
A report of Dr Alsayed dated 10 November 2014 refers to a diagnosis of Diabetes. Mr Tayba told the JCA assessors that it is controlled by medication and has nil functional impact on his daily activities. The JCA wrote that current treatment plan was to continue. The prognosis was unknown.
The JCA report found that the condition is fully diagnosed but not treated and stabilised because of the lack of objective evidence of the degree of Mr Tayba’s medical condition including current and planned treatment. The report indicated that Mr Tayba would benefit from a specialist review (Endocrinologist) to ascertain treatment and to enable improvement in symptomatology and functioning.
JCA2 noted that no treatment was recorded in medical records by Dr Alsayed. On 10 November 2014, Dr Alsayeed noted that the condition is generally well managed and causes minimal or limited impact on ability to function. Mr Tayba reported that he does not take medication for diabetes, has not seen specialists, has had several pathology tests and the condition is not actively managed. He has no functional impact. The condition has not been fully treated and stabilised.
Nil points can be assigned for this condition because it has not been fully diagnosed, treated and stabilised.
Condition 5 – Tinnitus
The evidence about this condition is confined to a diagnosis in 2008 which Dr Alsayed refers to in his 26 May 2022 report. There is no evidence of symptoms or treatment.
The condition has not been fully diagnosed, treated and stabilised. No points can be assigned for this condition.
Condition 6 – Vertigo
Based on the 26 May 2022 report of Dr Alsayed, the JCA reported a diagnosis of vertigo with onset in 2008 but concluded that it was not treated and stabilised. The report recommended a specialist review by a neurologist.
JCA2 concluded that the condition was fully diagnosed by Dr Alsayed on 26 May 2022 with onset of 2008 but had not been fully treated or stabilised. Medical records do not record treatment. Mr Tayba reported that he takes Serc as required and sits down to rest when he experiences dizziness which self-resolves. The report indicated that Mr Tayba would benefit from a specialist review (Neurologist) to ascertain treatment and to enable improvement in symptomatology and functioning.
0 points can be assigned to this condition.
Condition 7 – Hypertension
The JCA refers to Dr Alsayed’s diagnosis of hypertension on 10 November 2014, a record of medication (controlled), current treatment to continue. The client reported that the condition was controlled with medication and had nil functional impact on his daily activities.
There was no new medical information provided for the current assessment. The JCA concluded that the condition was fully diagnosed but not treated or stabilised.
JCA2 refers to the following. Dr Alsayed noted hypertension on 10 November 2014. On 21 February 2014 Dr Alsayed noted that Mr Tayba had been referred to a cardiologist and was receiving lifelong treatment. To Mr Tayba’s knowledge, the condition was managed. JCA2 concluded that the condition was not fully treated and stabilised. I accept that opinion.
0 points can be allocated for this condition.
Condition 8 - Shoulder and upper arm condition
The first evidence about Mr Tayba’s shoulder and upper arm condition appears in a 15 June 2018 radiology report of an ultrasound. Radiologist, Dr Kyatt, found that there is a suggestion of a full-thickness tear of anterior fibres or supraspinatus tendon. The marked limitation of shoulder movement raised the suspicion of frozen shoulder.
In his report dated 26 May 2022, Dr Alsayed stated the following. Mr Tayba complained of shoulder pain which is aggravated by lifting his shoulders up or by carrying objects. He suffers shooting pain with numbness on the lateral side of the shoulder. It was very difficult to get dressed. Anything that required movement of the shoulder was problematic. He was referred for physiotherapy and provided an injection under ultrasound with provided minimal improvement.
Mr Tayba told the JCA assessor that he underwent surgery to his shoulder three to four years ago. There is no report of shoulder surgery at that time. He may have been referring to the injection under ultrasound. The JCA recommended orthopaedic review.
I agree with the JCA conclusion that the condition has been fully diagnosed but not treated and stabilised. Objective evidence of the degree of this condition including current and planned treatment is not available. Therefore, no points can be allocated for this condition.
I am satisfied that no points can be assigned to this condition.
Condition 9 - Knee pain
Dr Alsayed’s report dated 26 May 2022 stated Mr Tayba suffers from knee pain with stiffness and limited range of motion. He was referred for imaging and to an orthopaedic surgeon. Physiotherapy and exercise were the main medical treatment. He might require surgical intervention for improving pain. His mobility was marked reduced. He finds that his back and knees ache if he walks too far and he feels uncomfortable if he walks on uneven ground.
This condition has not been fully diagnosed, treated and stabilised. 0 points can be assigned.
Condition 10 - Respiratory disorder
On 22 September 2021, Dr Richard Wing, radiologist, reported the following. He found features of bronchial wall inflammation relatively more prominent on the right in a perihilar distribution. Mr Tayba had recently had COVID-19 and been recently released from home isolation by the Local Health District. In his opinion, the bronchial wall changes were related to the recent COVID-19 infection. ‘Please correlate clinically and compare with any previous imaging. There is no definite collapse or consolidation.’
In his 26 May 2022 report, Dr Alsayed reported that Asthma had been diagnosed in 2020 and Mr Tayba suffered from coronavirus in 2021.
Mr Tayba told the JCA assessors that he utilised medication and had recovered from coronavirus. The JCA considered the condition fully diagnosed but not treated and stabilised because objective evidence of the degree of this condition, including current and planned treatment was not available. It indicated that Mr Tayba would benefit from specialist review by a respiratory physician to ascertain treatment and to enable improvement in symptomatology and functioning. I accept that evidence. No points can be allocated for this condition.
The JCA concluded that the condition had been fully diagnosed but not fully treated or stabilised during the qualification period.
JCA2 made similar findings.
It follows that no points can be allocated under the Impairment Tables.
Conclusion
The evidence does not establish that Mr Tayba had a severe impairment, that is a condition which warranted a rating of 20 points under the Impairment Tables, during the qualification period 16 May 2022, to 15 August 2022. Therefore, the reviewable decision must be affirmed.
DECISION
The reviewable decision dated 21 February 2023 is affirmed.

I certify that the preceding 95 (ninety-five) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

................................[sgd]........................................
Associate
Dated: 13 June 2024

Date of hearing:

26 February 2024

Date final submissions received:

15 March 2024

Applicant:

By Telephone

Solicitors for the Respondent:

Mr M Gauci, Hunt & Hunt Lawyers

Date of hearing:	26 February 2024
Date final submissions received:	15 March 2024
Applicant:	By Telephone
Solicitors for the Respondent:	Mr M Gauci, Hunt & Hunt Lawyers