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

TDQN and Secretary, Department of Social Services (Social services second review) [2018] AATA 1850 (7 June 2018)
Division:GENERAL DIVISION
File Number(s): 2017/2865
Re:TDQN
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:R. Cameron, Senior Member
Date:7 June 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...........[sgd].............................................................
Senior Member
Catchwords
SOCIAL SECURITY – disability support pension – whether qualified at date of cancellation – spinal condition, shoulder condition, carpal tunnel syndrome fully diagnosed, treated and stabilised – other conditions not fully diagnosed, treated and stabilised – whether impairments attract rating of 20 points or more under the Impairment Tables – Applicant has continuing inability to work – decision affirmed
Legislation
Social Security Act 1991
Social Security (Administration) Act 1999
Secondary Materials
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011
REASONS FOR DECISION
R CAMERON SENIOR MEMBER
7 June 2018
INTRODUCTION.

The Applicant had for some years been the recipient of the disability support pension (“DSP”).
Centrelink conducted a review of the Applicant’s entitlement to such a pension, which resulted in a decision being made on 11 October 2016 that she was no longer qualified to receive such a pension and further, as a consequence of such decision, that payments of the pension were to cease. Centrelink is the service provider for the Department of Human Services (the Department).
On 4 January 2017 an Authorised Review Officer of the Department affirmed the earlier decision made on 11 October 2016 that the Applicant no longer qualified for the DSP (“the reviewable decision.”)
On 16 May 2017 the Applicant filed with the Tribunal an application for a second review of the decision made by the Social Services and Child Support Division of this Tribunal on 26 April 2017 confirming the reviewable decision.
RELEVANT LEGISLATION
There are several sections of the Act relevant to this application. Section 27(3) of the Social Security Act 1991 (“the Act”) provides:
Review of qualification for disability support pension
(3) If:
(a) a person is receiving disability support pension; and
(b) the Secretary gives the person a notice (the assessment notice) under subsection 63(2) or (4) of the Administration Act in relation to assessing the person’s qualification for that pension;
the Secretary, in assessing the person’s qualification for that pension, must apply the instrument in force under section 26 of this Act on the day the assessment notice was given.
Section 94(1) provides the criteria that must be satisfied for an Applicant to qualify for the DSP as follows:
94 Qualification for disability support pension
(1) A person is qualified for disability support pension if:
(a) the person has a physical, intellectual or psychiatric impairment; and
(b) the person’s impairment is of 20 points or more under the Impairment Tables; and
(c) one of the following applies:
(i) the person has a continuing inability to work;
(ii ) the Secretary is satisfied that the person is participating in the program administered by the Commonwealth known as the supported wage system; and…
ISSUES
There are three relevant issues to be considered by the Tribunal for the purposes of this application. Firstly, whether the Applicant had any impairments that were fully diagnosed, treated and stabilised. Secondly if so whether the Applicant’s impairments warranted an impairment rating of at least 20 points under the Social Security (Tables for the Assessment of Work – Related Impairment for Disability Support Pension) Determination 2011 (“the Impairment Tables”). Thirdly, whether the Applicant had a continuing inability to work.
THE EVIDENCE AND OTHER MATERIAL BEFORE THE TRIBUNAL
The following material was before the Tribunal in evidence:
(a)The T documents;
(b)A report of Dr Laura Sanders dated 24 November 2016;
(c)A report of Dr. Michael Yacoub dated 14 September 2017;
(d)A report of Dr. Michael Yacoub dated 21 December 2017;
(e)An undated statement of approximately two and a half typewritten pages made by the Applicant’s daughter.[1]
[1] Although the statement of the Applicant's daughter was tendered in evidence, the statement was more in the nature of a submission or argument which must of course limit the weight which the Tribunal can place upon it.
Although, the hearing of this application was conducted by telephone the Applicant gave oral evidence and was cross-examined by Ms Bakas of Sparke Helmore Lawyers on behalf of the Respondent. Save for the documentary evidence tendered by the Respondent it did not call any witnesses to give evidence at the hearing of the application.
BACKGROUND
The Applicant was granted the DSP from 11 December 2001.
Pursuant to the powers conferred upon the Secretary of the Department of Social Services under section 63 of the Social Security (Administration) Act 1999 (“Administration Act”) on 1 July 2016 a “Medical Report: Disability Support Pension Review” form was issued and served on the Applicant.[2]
[2] It should be recorded here that this process was the subject of some criticism by the Applicant via her daughter both in her written submission and her closing address to the Tribunal. The criticism was to some extent questioning the process and how her mother was randomly chosen for the review. It was also submitted that there was no official appointment made on or about 11 October 2016, in effect not giving the Applicant a complete opportunity to address the questions raised about whether or not she qualified for the DSP. Indeed the language in the statement of the Applicant's daughter was extremely robust when she stated amongst other things: "All was not done by the department of social services, who fabricated a decision that is in fact inaccurate and false. I would like to know the qualification of the person who made the incorrect decision? Do they have a medical degree? Also, their position should be questioned and investigated further." The whole of the witness statement is referred to and has been considered by the Tribunal, of course with all the other material tendered in evidence. The Tribunal cannot accept the contention in that statement however, that there is no evidence to support the original decision-maker’s decision and that it must be rejected. Also, as was fairly pointed out by the lawyer for the Respondent the relevant Job Capacity Assessment Reports that were in evidence were prepared by a Registered Psychologist and Registered Occupational Therapist. There is absolutely no foundational basis for challenging their professionalism and independence when preparing such reports. Quite the contrary, the evidence indicates that the authors of these reports and the Department as a whole conducted themselves in this process thoroughly, fairly and properly.
The Medical Report: Disability Support Pension Review form complied with the requirements of section 63(4) of the Administration Act and accordingly, was a validly issued notice to the Applicant pursuant to that section.
By reason of the operation of section 27(3) of the Act, when the recipient of the DSP is served with a notice under section 63(4) of the Administration Act, that person’s qualification for the DSP must be assessed in accordance with the applicable instrument in force as at the date that such notice of assessment was served. The Respondent conducted a review of the Applicant’s eligibility for the DSP on 1 July 2016.
Therefore, in assessing the Applicant’s qualification for the DSP in this application the applicable Impairment Tables are those contained in the instrument made pursuant to section 26 of the Act which have been in force from 1 January 2012.
In the course of conducting the review of the Applicant’s eligibility for the DSP as noted above, enquiries and investigations were undertaken which resulted in the preparation of two documents known as a “Job Capacity Assessment Report” (“JCA”).[3] The JCAs were compiled on 11 October 2016 and 20 December 2016 by a registered psychologist and a registered occupational therapist, after they had conducted the enquiries and investigations, the precise details of which are contained in the reports themselves. They are very thoroughly prepared documents.
[3] Documents T17 and T23 of the T documents.
Section 94(1)(a) of the Act
The first matter that section 94(1)(a) of the Act requires a decision-maker in the position of the Respondent to assess is whether the recipient of the DSP has a physical, intellectual or psychiatric impairment.
The Respondent has conceded that the Applicant satisfies the relevant provisions of section 94(1)(a) of the Act because she suffers from the following conditions causing her impairment in the relevant sense as follows:
(a)Spinal condition;
(b)Shoulder condition;
(c)Depression;
(d)Lower limb condition; and
(e)Carpal tunnel syndrome.
Section 94(1)(b) of the Act
The next limb of section 94 of the Act that the decision-maker is required to take into account is whether the recipient’s impairment is of 20 points or more under the Impairment Tables. As noted earlier, because this decision was to cancel the Applicant’s DSP it must be assessed as at the date of cancellation. In this matter the date of cancellation as observed earlier in these reasons is 11 October 2016. There can be no other assessment on any other date or dates.
Therefore, each of the impairments identified above will be separately considered for the purposes of determining whether the Applicant’s impairment was a total of 20 points or more under the Impairment Tables at the relevant time.
CONDITIONS
Spinal condition
The evidence demonstrates that the Applicant has suffered from various afflictions concerning her neck and back for some time. The first evidence in documentary form which contains a medical assessment of such conditions is to be found in a “Treating Doctors Report” dated 31 May 2000 prepared by Dr Sangankal Reddy, general practitioner.[4]
[4] Document T8 of the T documents.
The report of Dr Reddy identified several conditions suffered by the Applicant. Under the heading “Diagnosis” he identifies a condition known as “Cervical Canal Stenosis”. Under the heading “Clinical features” he identifies “pain neck, weakness of upper limb pain and stiffness.[5]
[5] This affliction was described as having commenced or more accurately its "Date of onset" was identified as being sometime in 1996.
Dr Reddy further diagnosed the condition of “Backache”. Under the heading “Clinical features”, he stated: “Chronic backache pain radiates to legs.”[6]
[6] The date of onset for this affliction was stated to be “since 1988”.
The report also contained observations that were consistent with the Applicant’s own statements made in a “Medical Review” form that she signed dated 31 May 2000,[7] in which she was requested to describe all medical conditions which she was then suffering from. In that form under the heading “Back Ache” she stated that it started in 1988 and that its symptoms were that she could not sit for a long period of time, had problems lifting heavy objects and had problems bending. She also recorded on that Medical Review form that she was suffering from a “Painful Neck” which had started in 1996 she stated that she experienced pain which came from her neck and affected her hands and arms. Further, in that document she identified three treating doctors whom she had consulted over the previous few months including Dr Reddy, but also a Dr Pullen (from the Broadmeadows Hospital) and a Dr Yousef (from Bell Street, Coburg).
[7] Document T7 of the T documents, page 49 in particular is referred to.
On 1 November 2001 Dr Reddy furnished a further “Treating Doctor’s Report”,[8] which was provided to Centrelink. This report identified the same conditions suffered by the Applicant and for the purposes of this matter; nothing further really turns upon it, other than to refer to its full terms and effect.
[8] Document T10 of the T documents.
Dr Skinner provided a report signed on 26 November 2001,[9] and with respect to the spinal condition made several observations. Dr Skinner observed that the Applicant suffered from constant neck pain with radiation into her arms, meaning that she could not sit reading for very long and suffered from limited movement. He noted that she took Pandeine Forte to deal with this pain. Further, Dr Skinner recorded in that report that she suffered from mid-low back pain with radiation into both legs, could only sit for about 10 minutes at a time, was unable to do the cleaning and required help with many other tasks.[10] At the “Conclusion & Opinion” portion of the report Dr Skinner stated that the combined effect of the relevant problems identified in his report were chronic, entrenched and made her unfit for all work. At that time he saw no prospect of recovery in the foreseeable future and concluded that she was unlikely to be able to work for the next two years from that date.
[9] Document T12 of the T documents.
[10] In preparing this report Dr Skinner conducted an examination of the Applicant and noted that she had a lot of pain in her back. She also displayed minimal neck and back movements. He also noted that she conveyed an impression of significant psychosomatic overlay during the course of such examination.
On 9 July 2016 Dr Michael Yacoub completed a “Medical Report: Disability Support Pension Review”,[11] which was submitted to Centrelink. In that report he recorded that the Applicant had been his patient since 2007. When asked to list the first condition with the most impact on his patient, under the heading “Diagnosis” he stated: “Lower back pain, neck pain secondary to degenerative changes”.[12] After identifying the medication that was prescribed to alleviate the Applicant’s condition he stated that the condition would deteriorate over time. When asked what impact the condition would have on the Applicant’s ability to function he stated that there was pain with long periods of standing. He expressed the expectation that the condition would continue to persist for more than 24 months with an uncertain prognosis over the next two years.
[11] Document T14 of the T documents.
[12] Page 90 of the T documents.
A Centrelink staff member had a telephone conversation with Dr Yacoub on 10 October 2016.[13] When asked questions as to the Applicant’s symptoms and its functional impact he stated that she had a reduced range of movement of the neck and lower back, with partial rotation, and the ability to bend forward and reach table level but could not bend repetitively.
[13] Details of this telephone conversation were recorded in a document completed by a Centrelink officer headed "Additional Medical Evidence for Disability Support Pension Record" which is document T 16 of the T documents.
The JCA report of 11 October 2016 identified the Applicant as suffering from a spinal disorder of a permanent nature that had been verified by medical evidence and was fully diagnosed, treated and stabilised. The contents of the report of Dr Yacoub of 9 July 2016 previously referred to were repeated. The Report also noted that the Applicant had a reduced tolerance for bending, twisting, sitting and driving. Interestingly, it noted that limits to driving were approximately 10 to 15 minutes to the local shops. Further difficulties were recorded with respect to reaching up and that she could only manage hanging one to two laundry items on the clothesline due to shoulder pain. Lifting and carrying posed difficulties as she could only manage carrying up to 2 kg in weight for a short duration.
A CT scan of the Applicant’s lumbosacral spine dated 2 November 2016[14] is instructive for its analysis of several issues that arise at the L2 through to the L5 level. The conclusion is that the Applicant is suffering from “Facet arthropathy at L4/5, with severe vertebral canal narrowing. Moderate neural foraminal narrowing bilaterally with possible nerve root compression. More minor change at other levels.”
[14] Document T20 of the T documents.
The Applicant was cross-examined in some detail concerning various aspects of her spinal function. She stated that she felt very sore from her back shoulders and neck not to mention her lower back. She gave evidence of the medication that she had been prescribed by her general practitioner from time to time. Additionally, she gave evidence that she had been referred for physiotherapy treatment.
Apparently the Applicant travelled overseas between 27 November 2016 and 20 December 2016, a period comprising just over three weeks.[15] She stated that she went to Lebanon and that the flight was around 12 to 14 hours and that she sat down for parts of the flight but had been fortunate enough to sleep on an empty seat. When pressed she conceded that for take-off and landing she had to be seated with a seatbelt fastened. When probed as to how long that might have been it was suggested to her that it may have been for up to half an hour; she stated she did not know if it was quite that long. Whatever the seating or sleeping arrangements were it would seem apparent that it would have placed her in a position of significant discomfort insofar as her back condition was concerned (let alone her neck condition). Nonetheless she managed to endure the flight to Lebanon. She also gave evidence that she was unaccompanied when she travelled to Lebanon but upon her return flight was accompanied by her son. It would have to be concluded that such a plane flight would be challenging, and be highly likely to cause considerable pain and discomfort to anyone in the position of the Applicant suffering from the spinal, back and neck conditions that were referred to both in the medical evidence and her own evidence.
[15] The Immigration Movement records (document T25 of the T documents) were put to the Applicant in cross-examination.
When probed about her capacity to drive in October 2016 the Applicant stated that she was able to drive to the shops and usually did so when she took a painkiller which provided relief roughly for a 15 to 20 minute time span. She further recorded that when she wanted to do anything she generally had to take a painkiller. She was probed about her capacity of being able to move her neck to observe other traffic and to conduct lane changes. Her response was that she was reliant upon side mirrors where necessary and that because she drove nearby she did not go on a freeway or a big road and therefore, there was no need or occasion to change lanes at all.
Questions were asked of the Applicant concerning such things as hanging clothes on the line in October 2016 and she stated that she really couldn’t remember what her capacity to hang clothes on the line was at that time. She just stated she can’t do it now as her condition has become worse. She was referred to the conversation that Centrelink had with Dr Yacoub, referred to earlier, and conceded that there was no way she could put her arms up and couldn’t move her arms forward. She stated that there were many things she could no longer do with her arms and was unable to do them as at the cancellation date in 2016.
By reason of these considerations the Respondent has conceded that the Applicant’s spinal condition was fully diagnosed, treated and stabilised at the cancellation date.[16]
[16] See paragraph 4.37 of the Respondent's Statement of Issues, Facts and Contentions. This concession was also made by the Respondent's legal representative in closing submissions to the Tribunal.
It is then necessary to apply the provisions of Table 4 – Spinal Function of the Impairment Tables (“Table 4”) to determine what if any points are allocated to the spinal condition suffered by the Applicant.

A severe functional impact on activities involving spinal function attracts a rating of 20 points if the person is unable to carry out the following activities:
(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.
Both the medical evidence and the evidence given to the Tribunal by the Applicant demonstrate that the functional impact on her capacity to carry out those activities is not such that she is precluded from doing them in the way necessary to establish a severe functional impact. The most contemporaneous medical evidence is that of Dr Yacoub which shows that whilst she had a “reduced range” of those critical activities she was nonetheless able to perform them to some limited extent. Whilst she is able to carry out those activities or any one of them to a limited extent it is inappropriate to apply the descriptor of severe functional impact. Dr Yacoub in the telephone conversation with a Centrelink employee on 10 October 2016 stated that the Applicant is restricted with sitting and could manage approximately 30 minutes with lumbar support, and was limited to driving to approximately 15 minutes. Further, in this telephone conversation Dr Yacoub stated that the Applicant only had partial range of movements for twisting her neck, lower back and trunk. There was also a reduced tolerance for twisting with partial capacity to move the neck and lower back.[17]
[17] Details of the relevant telephone conversation with Dr Yacoub are contained in document T17 of the T documents at page 109.
The medical evidence to some extent corroborates the evidence given by the Applicant that she does have a limited capacity to undertake the tasks concerned. To embark upon a flight to Lebanon, unaccompanied and with the back condition that she had at that time is more indicative of a moderate functional impact rather than a severe functional impact. The capacity to drive a car even over limited distances to the shops as she conceded she did also indicates she is able to remain seated for at least 10 minutes and turn her head, or bend her neck, to some limited extent, without the need to move her trunk. As for overhead activities the evidence is somewhat limited but indicates that she had difficulty reaching up but could manage hanging one to two laundry items on the clothesline. Even descriptor (1)(a) of Table 4 requires the Applicant to be unable to sustain overhead activities. That is just not the case here. Similarly, there is no evidence to suggest that the Applicant as at the cancellation date needed assistance to get up out of a chair.
Given these findings, at best an impairment rating of 10 points can be assigned under Table 4.
Shoulder condition
The Respondent has accepted that the Applicant’s shoulder condition was fully diagnosed, treated and stabilised as at the cancellation date.[18] It does however assert that no impairment points should be allocated under the applicable table.
[18] See paragraph 4.42 of the Applicant's Statement of Issues, Facts and Contentions. A similar concession was also made by the Respondent’s lawyer in closing submissions.
The applicable table under the Impairment Tables is Table 2 – Upper Limb Function (“Table 2”). In the introduction to this table it defines upper limbs as extending from the shoulder to the fingers. Unsurprisingly the table also prescribes that there must be corroborating evidence of the person’s impairment.
For reasons that are not altogether clear to the Tribunal the “Medical Report: Disability Support Pension Review” prepared by Dr Yacoub on 15 July 2016 does not identify the shoulder condition as being suffered by the Applicant. One would have expected this to have been canvassed in such report.
The first report that identifies the relevant shoulder condition suffered by the Applicant is dated 14 September 2017, which of course is some considerable time after this application had been lodged. In this report Dr Yacoub identified the Applicant as suffering from a supraspinatus tear of the right shoulder and subacromial bursitis of the right shoulder that commenced on 8 May 2009. He opined that the condition was likely to persist for more than two years from 11 October 2016. Further, he expressed the opinion that there were further functional difficulties arising from the condition which were expected to persist for more than two years from 11 October 2016. However, he did not identify what those functional difficulties were. This is unfortunate.
In a further report dated 21 December 2017,[19] prepared by Dr Yacoub in response to specific questions concerning the shoulder condition and the consequent functional difficulties experienced by the Applicant, he stated that such functional difficulties arising from the right shoulder condition were: pain on extreme movements, inability to fully raise the right shoulder, and the inability to carry anything when shopping. In this report when asked what the Applicant’s rating was with respect to the right shoulder and why; he responded “10” because she could not pick up a litre carton of liquid and had difficulty using a standard computer keyboard.
[19] Exhibit A3. The Respondent in its submission at paragraph 4.41 stated that the date of the report was 15 December 2017 and then observed that the date of the report is not clear. It is apparently dated 21 December 2017 and signed by the treating doctor. For the purposes of this analysis (not that anything really turns on it) the Tribunal concludes that the report was made on the date that it bears, namely 21 December 2017, which is endorsed adjacent to the signature of Dr Yacoub.
When one examines the descriptors for a 10 point rating (indicating a moderate functional impact) several things emerge. Firstly, there are six applicable descriptors:
(a)        picking up a 1 litre carton full of liquid;
(b)        picking up a light but bulky object requiring the use of 2 hands together (e.g. a cardboard box);
(c)        holding and using a pen or pencil;
(d)        doing up buttons or tying shoelaces;
(e)        using a standard computer keyboard;
(f)         unscrewing a lid on a soft-drink bottle.
Secondly, to qualify for a 10 point rating the patient must have difficulty with most of those descriptors. If the Applicant is given the benefit of the doubt even on Dr Yacoub’s assessment she only qualifies for two out of the six descriptors. Therefore, the 10 point rating applied by him is incorrect and the Tribunal rejects that conclusion.
On a consideration of whether there is a mild functional impact on activities using hands or arms which attracts a 5 point rating under Table 2 it is necessary to establish that the person concerned has some difficulty with most of the four descriptors.
(a)        picking up heavier objects (e.g. a 2 litre carton of liquid or carrying a full shopping bag);
(b)        handling very small objects (e.g. coins);
(c)        doing up buttons;
(d)        reaching up or out to pick up objects.
The evidence in this case is not at all clear as to what the position was with the Applicant’s condition as at the cancellation date of 11 October 2016. When asked specifically in cross-examination about her capacity to do up buttons, the Applicant stated she couldn’t remember anything about what she did in October 2016. She said now her daughter helps her to get dressed and helps her with her buttons and bra.
The Tribunal finds it difficult to accept that the Applicant cannot remember what she was capable of doing in October 2016. Despite the fact that English is not her first language the Applicant presented as a witness who was very much alive to protecting her interests at all times. She appeared to the Tribunal as someone who had the capacity to in most instances, comprehend the questions being asked of her in cross-examination and carefully respond. On many occasions her recollection of events some years previously such as her plane trip to Lebanon was extremely good and to a considerable level of detail. For instance, as noted earlier she was able to recall being able to sleep on vacant adjacent seats. It seems unlikely that she would not be able to recall whether or not she was driving the car or capable of doing up her buttons in October 2016.
It is for these reasons that in this setting the Tribunal finds that there was only one descriptor attracting 5 points in Table 2 that applied to the Applicant as at October 2016. Therefore, the Tribunal accepts that the appropriate impairment rating for this condition is 0 points.
Depression
Depression is addressed in Table 5 – Mental Health Function of the Impairment Tables (“Table 5”). In the introduction to this table it notes that the diagnosis of the condition must be made by an appropriately qualified medical practitioner, such as a psychiatrist, and if a psychiatrist has not made the diagnosis, with evidence from a clinical psychologist. Once again as with the other tables reference is made to the need for corroborating evidence of the person’s impairment and examples of such corroborating evidence are offered which include a report from the person’s treating doctor. Obviously, with such a condition, evidence from an appropriately qualified medical practitioner including a psychiatrist or a clinical psychologist would in most circumstances be given greater weight in applying Table 5.
The issue of depression has been raised by the Applicant as far back as 31 May 2000.[20]
[20] See the Medical Report and Treating Doctor’s Report form of that date, document T7 of the T documents.
Medical reports were provided by Dr Reddy on 3 May 2001 and 1 November 2001. Dr Skinner provided a report dated 26 November 2001. These medical reports are in evidence and have been considered by the Tribunal. Whilst they clearly acknowledge this condition as having existed they are significantly dated and lest it needs to be said, produced many years before the review was undertaken by the Respondent that led to the decision to cancel the Applicant’s DSP on 11 October 2016.
Dr Yacoub in his report of 9 July 2016 which has been referred to previously, identified it as “Condition 2” being a diagnosis of “Depression” and “anxiety”. The contemporaneous symptoms identified by Dr Yacoub were low mood, lack of motivation and concentration. The diagnosis was not supported by any further specialist opinion. This statement in his report was also confirmed in the conversation that Dr Yacoub had with a Centrelink officer on 10 October 2016, in which he informed that officer that the Applicant had not attended a psychiatrist and had not been referred to a psychologist.[21] The report does note that the Applicant has been prescribed some medication of an antidepressant variety and recommended to have counselling. There was no evidence that she had in fact undertaken any counselling at all.
[21] The Applicant also confirmed this fact in response to questions conducted in the course of cross-examination.
The Respondent contends that the condition cannot be considered fully diagnosed, treated and stabilised as there is no evidence from a clinical psychologist or diagnosis by a psychiatrist. Whilst it is correct that there is no evidence from a clinical psychologist or diagnosis by a psychiatrist, it does not mean that a general practitioner is disqualified from diagnosing depression. However, the medical evidence does not enable the Tribunal to reach a conclusion as required that the condition suffered by the Applicant is fully diagnosed, treated and stabilised.
This conclusion is reached from an analysis of Dr Yacoub’s own report in which he observes several things. Firstly, his conclusion on the effect of the condition on the patient’s ability to function within the next two years is identified by him as uncertain. Secondly, as noted by the Respondent there has been no referral to a specialist, either psychiatrist or psychologist. One might have expected such a referral where someone suffers from this continuing condition. The reason being to exhaustively explore all prospects for treatment which might lead to an improvement in the Applicant’s condition. Thirdly, with respect to details of future or planned treatment, it is said by Dr Yacoub to be the same. Presumably, meaning no treatment other than the existing regimen. This is somewhat surprising given the complaints made by the Applicant about her symptoms and the effect it has on her. Fourthly, under the item of the report headed “Past treatment” no details are provided which might give an insight into whether or not the condition is fully diagnosed, treated and stabilised in the relevant sense. Fifthly, there are no details as to whether if any future treatment options were undertaken by the Applicant, they would lead to an improvement over time of the Applicant’s condition. For instance, we do not know if there are any suggested or possible alterations to the medication to be taken by the Applicant that could improve her daily life or the quality of it. If the current medication is not working or working to the best possible extent one has to query why other options are not considered? No doubt these could be explored were she to seek treatment from an appropriately qualified psychiatric specialist.
For these reasons, there is inadequate or insufficient evidence to enable the Tribunal to apply any impairment rating under Table 5 of the Impairment Tables.
Lower limb conditions
The applicable table in the Impairment Tables is Table 3 – Lower Limb Function (“Table 3”) with respect to the Applicant’s lower limb conditions.
The documentary evidence concerning these conditions once again traverses a considerable time span. Much of this evidence was produced many years ago and must, for the purposes of the review process undertaken by the Respondent that gave rise to the reviewable decision being made, be irrelevant or otherwise of limited probative value. That documentary material which is found in the T documents comprises the following:
a)A medical certificate dated 11 May 2000 indicating that the Applicant would be unable to work due to a right knee arthroscopy until 25 May 2000;[22]
b)A medical review form dated 31 May 2000 prepared by the Applicant in which she stated she was unable to stand for more than 5 minutes at a time and unable to walk for more than 20 minutes, in addition to having difficulties cleaning;[23]
c)The report of Dr Reddy dated 31 May 2000 diagnosing damaged right knee cartilage causing pain in the right knee and an inability to walk;[24]
d)A further report of Dr Reddy of 1 November 2001 diagnosing right sciatica that caused pain to radiate to the Applicant’s left leg;[25] and
e)The report of Dr Skinner 29 November 2001 recording that the Applicant’s low back pain radiated to both legs.[26]
[22] Document T6 of the T documents.
[23] Document T7 of the T documents.
[24] Document T8 of the T documents.
[25] Document T10 of the T documents.
[26] Document T12 of the T documents.
Dr Yacoub in his report of 9 July 2016 was asked the question “Does the patient have any other medical conditions that are generally well managed and that cause minimal or limited impact on her ability to function?”[27] He simply identified “left trochanteric bursitis” and expressed no further opinion as to the condition or its treatment.
[27] Document T14 of the T documents at page 96.
The existence of such limited medical evidence concerning this condition, bearing in mind that appropriate corroborating evidence is also required, is problematic for the Applicant. Therefore, the Tribunal for these reasons cannot reach a conclusion that the condition was fully diagnosed, treated and stabilised as at the cancellation date.
If, however, the Tribunal is incorrect in this conclusion the matter is still problematic in that the evidence does not enable the condition to attract any impairment points under the descriptors contained in Table 3 because of the conclusions of Dr Yacoub that the condition causes minimal or limited impact on her ability to function.
Carpal tunnel condition
This condition is also one that must be considered under Table of the Impairment tables. The observations made by the Tribunal earlier in these reasons concerning the application of the Table with respect to the Applicant’s shoulder condition are also applicable to this condition.
The Respondent accepts that this condition was fully diagnosed, treated and stabilised,[28] and contends that it should attract no impairment points under Table 2 because of the comments made by Dr Yacoub in his report of 9 July 2016 which will be referred to shortly.
[28] This concession is made in paragraph 4.63 of the Respondent's submissions and was also made in the course of the final address by the Respondent's lawyer to the Tribunal.
Once again the medical evidence concerning this condition is either relatively historic or, alternatively, supportive of the contention that it is a condition which was generally well managed and caused limited functional impairment.
There is a report from Dr Skinner dated 29 November 2001,[29] in which he identifies that she had undergone carpal tunnel release surgery but reported that she was suffering from a weak hand and couldn’t hold heavy pots. He further noted that she found ironing difficult. As noted earlier, little if any weight can be placed upon this report of Dr Skinner given the passage of time between the date of the report and the date of cancellation, being the date that the Tribunal is obliged to consider the Applicant’s condition.
[29] Document T12 of the T documents.
Dr Yacoub in his report of 9 July 2016 in response to the question identified above asking him whether the patient had any other medical conditions that were generally well managed and cause minimal or limited impact on the ability to function simply identified carpal tunnel syndrome on both sides. Dr Yacoub’s acknowledgement that such a condition is generally well managed and causes limited impact does not address any of the descriptors contained in Table 2 which enables the Tribunal to form an opinion as to whether an impairment rating can be given to this condition.
Other conditions
The evidence is that the Applicant underwent eyelid surgery for a condition known as Chronic Progressive External Ophthalmoplegia.[30] (“CPEO”). Dr Yacoub, when requested to identify the functional difficulties arising from the condition of CPEO, noted the following:
(a)she is constantly tired, sleepy and lazy;
(b)has no motivation to do anything;
(c)no energy;
(d)unable to complete her daily activities including house duties; and
(e)she is suffering from muscle wasting affecting her arms and legs.
[30] This evidence is to be found in the report of Dr Yacoub dated 21 January 2017 in response to question 1. This document is Exhibit A3.
Regrettably for the Applicant, Dr Yacoub in this report does not express an opinion in terms that enable the Tribunal to reach any conclusion about what treatment options may be available to the Applicant if any, or whether the condition is fully diagnosed, treated and stabilised in the sense required by the Act. Also, given the other evidence of the Applicant seeking specialist medical advice from a consultant neurologist (who the Applicant had consulted, presumably after a referral from some medical practitioner prior to Dr Yacoub’s report of July 2016) which will be referred to subsequently in these reasons, the diagnosis and treatment of this condition is largely left up in the air.
The specialist’s report from Dr Lauren Sanders dated 24 November 2016 referred to several years of progressive deterioration in the symptoms of this condition. The report recommended that further investigations including a possible muscle biopsy, should be undertaken to confirm the “diagnosis” and what she described as “probable treatment with Co-enzyme Q10”. Dr Sanders further stated that she would review the Applicant in her clinic in a few weeks to allow her time to discuss the proposed muscle biopsy with her family.

Whilst Dr Sanders’ report was produced after the cancellation date it nonetheless demonstrates that the condition cannot be confirmed as fully diagnosed, treated and stabilised in the relevant sense.
Additionally, if the Tribunal is otherwise incorrect in its conclusion that the condition of CPEO was not fully diagnosed, treated and stabilised there is simply insufficient evidence to enable an impairment rating to be assigned under the relevant Impairment Table, which is Table 12 – Visual Function (“Table 12”).
The report of Dr Yacoub ascribes the relevant symptoms of the condition referred to above. These symptoms do not fit “hand in glove” with any of the descriptors in Table 12 so as to enable the Tribunal to assign an impairment rating. The descriptors in Table 12 apply to the “functional impact involving visual function” in carrying out various tasks or undertaking various activities. The conditions or symptoms identified by Dr Yacoub identified above do not manifest themselves by way of a functional impact on the Applicant’s visual function as required by Table 12. Therefore, the Tribunal cannot assign an impairment rating to this condition.
APPLICANT’S IMPAIRMENT RATING
For the reasons identified above in considering the conditions suffered by the Applicant and the evidence before the Tribunal as at the cancellation date, namely 11 October 2016, the only condition that was fully diagnosed, treated and stabilised and therefore capable of being assigned an impairment rating was the spinal condition. As outlined above, the Tribunal finds that that condition attracted a moderate impairment rating of 10 points.
Therefore the Tribunal must accept the contentions of the Respondent that the Applicant does not satisfy the requirements of section 94(1)(b) of the Act, which requires that the Applicant be assigned at least 20 points under the Impairment Tables.
APPLICANT’S CONTINUING INABILITY TO WORK
On a proper construction of section 94 of the Act as referred to above, and as correctly contended for by the Respondent, if the Applicant does not establish a total of 20 points or more impairment rating under the Impairment Tables as at the cancellation date of 11 October 2016 she does not qualify for the DSP. Accordingly, in such circumstances there is no requirement for the Tribunal to assess whether the Applicant had a continuing inability to work.
In any event, the Respondent has conceded that the Applicant does have a continuing inability to work as she is unable to work for 30 hours per week. The Respondent referred to two JCA reports dated 11 October 2016 and 20 December 2016.[31]
[31] Documents T17 and T23 of the T documents.
The JCA of 11 October 2016 found that the Applicant had a baseline capacity for work within two years with mainstream intervention of 15-22 hours per week “due to restrictions imposed by ongoing conditions”.
The JCA of 20 December 2016 repeated that the Applicant had a baseline capacity for work within two years with intervention of 15-22 hours per week. This was based on an opinion that the Applicant’s work capacity was more likely to improve and stabilise over time with dedicated participation in a Disability Employment Service program.
The Tribunal refers to the contents of the Respondent’s submission at paragraphs 4.73 to 4.81.[32]
[32] The analysis of the Respondent and the authorities contained in those paragraphs are referred to and repeated for their full force and effect. The relevant concession is made in paragraph 4.81 of the Respondent's Statement of Issues, Facts and Contentions. A similar concession was also made by the lawyer for the Respondent in her closing submissions.
CONCLUSION AND SOME FINAL OBSERVATIONS
By reason of the consideration of the issues above, the reviewable decision is affirmed.
The Tribunal believes that it also should make some concluding comments with respect to the Applicant in this matter. The Applicant and her daughter, who appeared for her at the hearing to assist, seemed to labour under a misapprehension as to what the requirements are to qualify for the DSP under the Act. This observation is made not to criticise the Applicant and her daughter but to record that their approach was not uncommon when people are self-represented and do not fully appreciate what the Act requires the decision-maker to do. It is difficult not to have some level of sympathy for the Applicant given the long history of conditions that she has suffered. However, sympathy does not translate into a qualification for the DSP as a matter of law.
Further, the Tribunal should point out that if the Applicant’s medical condition changes such that she does subsequently reach a point where the foundation can be laid for appropriate entitlement to the DSP she is not precluded from making a fresh application for the same.

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Robert Cameron, Senior Member

.......................[sgd].............................................
Associate
Dated: 7 June 2018

Date of hearing: 3 May 2018

Applicant: By phone

Advocate for the Respondent: Ms Marie-Elaina Bakas

Solicitors for the Respondent: Sparke Helmore

[2018] AATA 1850

7 June 2018

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Date of hearing:	3 May 2018
Applicant:	By phone
Advocate for the Respondent:	Ms Marie-Elaina Bakas
Solicitors for the Respondent:	Sparke Helmore