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

Terry and Secretary, Department of Social Services (Social services second review) [2018] AATA 2112 (6 July 2018)
Division:GENERAL DIVISION
File Number: 2017/2426
Re:Brian Terry
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P Clauson
Date:6 July 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[SGD].............................................
Senior Member P Clauson
CATCHWORDS
SOCIAL SECURITY – Disability Support Pension – Cancellation – Upper Limb condition – Spinal condition – psoriasis condition - whether impairments are of 20 points of more under the Impairment Tables – Applicant has a continuing inability to work – 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
Freeman v Secretary, Department of Social Security (1988) 15 ALD 671
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
SECONDARY MATERIALS
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
REASONS FOR DECISION
Senior Member P Clauson
6 July 2018
INTRODUCTION

Mr Brian Terry (“Applicant”) has been in receipt of the Disability Support Pension (“DSP”) since 25 February 2003.
On 5 September 2016, the Department of Human Services (“Centrelink”) notified the Applicant that his DSP had been cancelled.[1] Subsequent to this, an Authorised Review Officer (“ARO”) conducted a review of Centrelink’s decision and affirmed it.[2]
[1] Exhibit 1, T Documents, T27, pages 155-156, Cancellation of DSP, dated 5 September 2016.
[2] Exhibit 1, T Documents, T30, pages 159-165, ARO Decision, dated 3 November 2016.
On 26 March 2017, the Applicant sought a first tier review of the decision by the Social Services & Child Support Division (“SSCSD”) of this Tribunal and the original decision was once more affirmed.[3]
[3] Exhibit 1, T Documents, T2, pages 2-10, Decision of the Social Services & Child Support Division,
dated 26 March 2017.
Following this, the Applicant sought a second tier review of his matter by the General and Other Divisions of this Tribunal, by way of an application dated 21 April 2017.[4]
[4] Exhibit 1, T Documents, T1, page 1, Applicant for review, dated 21 April 2017.
The finding from these abovementioned decisions is that the Applicant’s DSP should be cancelled, with an effect date of 5 September 2016. The reason for cancellation being that the Applicant did not have an Impairment Rating of at least 20 points under the Impairment Tables to qualify for DSP and did not have a continuing inability to work.
On 9 March 2018, a hearing was held for this application. The Applicant attended the hearing by telephone.
The issue for this Tribunal to determine is whether the Applicant qualified for DSP at the date of cancellation, this being 5 September 2016.
BACKGROUND
On 9 February 2015, Centrelink received information of an alleged fraud and a letter was sent to the Applicant to remind him of his “notification obligations”.[5]
[5] Exhibit 1, T Documents, T36, page 192, Centrelink File Note, dated 9 February 2015.
On 4 April 2016, a Review of Entitlement was undertaken by Centrelink.[6] The Applicant was sent a Request for Information letter on 4 April 2016, which asked the Applicant to call Centrelink by 27 April 2016 to discuss the adverse information Centrelink had received and also explained that a Review of Entitlement had been initiated.[7]
[6] Exhibit 1, T Documents, T36, pages 193-195, Centrelink File Note, dated 4 April 2016.
[7] Exhibit 1, T Documents, T36, pages 193-195, Centrelink File Note, dated 4 April 2016.
On 15 April 2016, the Applicant called Centrelink in response to the Request for Information letter. Centrelink records show that the purpose of the call was explained to the Applicant and the Applicant indicated that he did not agree with the allegation. The Customer Service Advisor from Centrelink advised the Applicant that the record regarding his medical conditions had not been updated since 2002 and that the Applicant would be sent a DSP Medical Review Form.[8]
[8] Exhibit 1, T Documents, T36, page 193, Centrelink File Note, dated 15 April 2016.
On 15 April 2016, the Applicant was issued a DSP Medical Review Form.[9] This form constitutes a notice given pursuant to section 63 of the Social Security (Administration) Act 1999 (“Administration Act”), and indicates that a review of the Applicant’s ongoing entitlement to DSP has commenced.
[9] Exhibit 1, T Documents, T22, pages 128-131, DSP Medical Review Form, issue date 15 April 2016.
The Applicant completed section A of this form and he listed the following disabilities, illnesses or injuries as follows:
“BUSTED BACK, UNSUCCESSFUL ROTATOR CUFF OP, CHRONIC PSORIASIS, BRONCHITIS, ARTHRITIS IN BOTH ELBOWS AND THUMB, HIP JOINT PROBLEM [AND] KNEE PROBLEMS…”[10]
[10] Exhibit 1, T Documents, T22, page 129, DSP Medical Review Form, issue date 15 April 2016.
The Applicant’s General Practitioner, Dr Holthouse, completed section B of this form.

Dr Holthouse noted that of the Applicant’s conditions, lumbar back pain was causing the most impact on the Applicant’s ability to function. It was noted that the impact of the Applicant’s ability to function would persist for more than 24 months and that the effect of the condition was uncertain.[11]
[11] Exhibit 1, T Documents, T23, page 136, DSP Medical Review Form, issue date 15 April 2016.
Dr Holthouse listed the Applicant’s second condition as “Right shoulder pain – past rotator cuff surgery (failed)”.[12] It was noted that the impact on the Applicant’s ability to function would persist for more than 24 months and within the next 2 years the effect of the condition on the Applicant’s ability to function was expected to remain unchanged.[13]
[12] Exhibit 1, T Documents, T23, page 137, DSP Medical Review Form, issue date 15 April 2016.
[13] Exhibit 1, T Documents, T23, page 139, DSP Medical Review Form, issue date 15 April 2016.
On 31 August 2016, the Applicant attended a face-to-face Job Capacity Assessment (JCA).[14] The JCA reported that:
(a)The Applicant’s spinal condition was fully diagnosed, fully treated and fully stabilised and recommended an Impairment Rating of 10 points under Table 4 of the Impairment Tables;
(b)The Applicant’s upper limb condition was fully diagnosed, fully treated and fully stabilised and recommended an Impairment Rating of 5 points under Table 2 of the Impairment Tables;
(c)The Applicant’s psoriasis condition was fully diagnosed but not fully treated and fully stabilised and as a result could not be assigned an Impairment Rating;
(d)The Applicant’s osteoarthritis condition was fully diagnosed but not fully treated and fully stabilised and as a result could not be assigned an Impairment Rating;
(e)The Applicant’s respiratory condition was fully diagnosed but not fully treated and fully stabilised and as a result could not be assigned an Impairment Rating; and
(f)The Applicant had a baseline work capacity of 8-14 hours per week and this could increase to 15-22 hours per week within two years with intervention.[15]
[14] Exhibit 1, T Documents, T26, pages 145-154, Job Capacity Assessment Report, dated 31 August
2016.
[15] Exhibit 1, T Documents, T26, pages 145-154, Job Capacity Assessment Report, dated 31 August
2016.
The Applicant’s DSP was cancelled on 5 September 2016 (“date of cancellation”).[16]
[16] Exhibit 1, T Documents, T27, pages 155-156, Cancellation of DSP, dated 5 September 2016.
ISSUES
The issue to be considered by the Tribunal is whether the Applicant was qualified to continue receiving DSP as at the date of cancellation. In order for the Tribunal to determine this issue, I must consider with reference to the date of cancellation:
(a)whether the Applicant had a physical, intellectual or psychiatric condition/s;
(b)whether the Applicant’s condition/s were fully diagnosed, treated and stabilised such that that the Applicant’s condition/s attracted a rating of 20 points or more under the Impairment Tables;
(c)whether the Applicant had a continuing inability to work.[17]
[17] Social Security Act 1991 (Cth) s 94.
THE LEGISLATIVE FRAMEWORK
The governing legislation unless otherwise quoted, is the Social Security Act 1991

(“the Act”) and the Social Security (Administration) Act 1999 (“Administration Act”).
The Administration Act provides for the cancellation or suspension of a social security payment,[18] if the Secretary is satisfied that a social security payment is being paid to a person who is not qualified for the payment:[19]
(1) If the Secretary is satisfied that a social security payment is being, or has been, paid to a person:
a)    who is not, or was not, qualified for the payment; or
b)    to whom the payment is not, or was not, payable;
the Secretary is to determine that the payment is to be cancelled or suspended.[20]
[18]          See section 23 of the Act, DSP is included as part of the definition for “social security benefit”.
[19]          Social Security (Administration) Act 1999 (Cth) s 80.
[20] Section 80(1), Administration Act.
Case law authorities have had regard to the date the review is confined to in social security payment cancellation matters. In the matter of Shi v Migration Agents Registration Authority [2008] HCA 31 at [144], Kiefel J discusses the matter of Freeman v Secretary, Department of Social Services [1988] FCA 294 (“Freeman”):
“His Honour held the Tribunal to have been correct to limit its consideration to the circumstances existing at the time the decision to cancel was made. The Tribunal was entitled to take into account all the facts placed before it, but the issue was whether the decision it was reviewing, to cancel the pension, was the correct or preferable decision when it was made. It was not whether Mrs Freeman had an entitlement to a widow’s pension at the date of the Tribunal’s decision”.
The Respondent has summarised the importance of the proposition from Freeman, providing that “[Freeman] stands for the proposition that the Tribunal can only consider whether a person qualified for disability support pension on the date of cancellation”.[21] In this case, the date is 5 September 2016. It is irrelevant that a person may later again fulfil the DSP requirements.[22]
[21] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 26.
[22] Freeman v Secretary, Department of Social Security (1988) 15 ALD 671 at 673-674
The Applicant was sent a notice that Centrelink was reviewing his eligibility for DSP.[23] Pursuant to section 63(2) of the Administration Act, Centrelink is authorised to notify a person of a requirement to provide information to the Secretary. Once a person receives notification under section 63(2) of the Administration Act, section 27(3) of the Act must be adhered to. That section provides:
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.
[23] Exhibit 1, T Documents, T22, pages 128-131, DSP Medical Review Form, issue date 15 April 2016.
In order for the Applicant to qualify for the DSP, the following relevant criteria set out in section 94 of the Act must be met:
(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)the person has a continuing inability to work.
Pursuant to section 26 of the Act, the Impairment Tables are set out in the legislative instrument titled Social Security (Tables for the Assessment of Work–related Impairment for Disability Support Pension)Determination 2011 (Cth) (“the Impairment Determination”). At the date of cancellation, the Applicant’s Impairment Rating was assessed under the Impairment Determination.
The Impairment Determination provides a general set of principles that must be considered when applying the Impairment Tables.[24] Essentially, the Tables are function based, rather than diagnostic based and describe functional activities, abilities, symptoms and limitations. They are designed to assign ratings to determine the level of functional impact of impairment, and not to assess conditions.[25] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they chose to do or what others do for them.[26]
[24] Impairment Determination, s 5(1) – (2).
[25] Impairment Determination, s 5(2).
[26] Impairment Determination, s 6(1).
Section 6(3) of the Impairment Determination provides that an Impairment Rating can only be assigned to an impairment if the person’s condition causing the impairment is “permanent” and the resulting impairment from that condition is more likely than not, on the available evidence, to persist for more than two years.
For a condition to be considered permanent it must be “fully diagnosed”, “fully treated”, “fully stabilised” and, more likely than not, going to persist for more than two years.[27]
[27] Impairment Determination, s 6(4).
When determining whether a condition has been fully diagnosed and fully treated, the Tribunal must consider 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.[28]
[28] Impairment Determination, s 6(5).
A condition will be considered fully stabilised if:
(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.[29]
[29] Impairment Determination, s 6(6).
“Reasonable treatment” is defined in the Impairment Determination as being treatment that would be considered:
(a)available at a location reasonably accessible to the Applicant;
(b)is at a reasonable cost;
(c)can reliably be expected to result in a substantial improvement in functional capacity;
(d)is regularly undertaken or performed;
(e)has a high success rate; and
(f)carries a low risk to the Applicant.[30]
[30] Impairment Determination, s 6(7).
An Impairment Rating is only able to be assigned in accordance with the rating requirement for each section of each Table. If an impairment is considered as falling between two Impairment Ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[31]
[31] Impairment Determination, s 11(1)(a) and (c).
A person's impairment is a severe impairment if it attracts 20 points or more under a single Impairment Table.[32]
[32] The Act, s 94(3B).
In order to assess whether an Applicant has a continuing inability to work, in these circumstances, the criteria set out in section 94(2)(a) – (b) of the Act must be met.
CONSIDERATION
The Applicant suffers from Upper Limb, Spinal, Psoriasis, Hip Pain, Arthritis, Chronic Obstructive Pulmonary Disease (“COPD”), and Gastroenterology conditions.
The Secretary accepts that the Applicant suffered from physical impairments at the date of cancellation.[33] Having considered the material before me, I am of the view that this is an appropriate concession to make; the Applicant therefore satisfies section 94(1) of the Act.
[33] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 30.
The issues to be determined by this Tribunal, is whether or not at the date of cancellation, those impairments attracted an Impairment Rating of 20 points or more under the Impairment Tables,[34] and if so, whether or not the Applicant has met one of the criteria set out in section 94(1)(c) of the Act to qualify for DSP.
[34] The Act, s 94(1)(b).
I will now consider whether the Applicant’s Impairments can attract Impairment Ratings under the Impairment Tables at the date of cancellation.
At the date of cancellation did the Applicant’s impairments attract 20 points or more under the Impairment Tables?
Upper Limb Condition
The Secretary contends that at the date of cancellation, the Applicant’s Upper Limb Condition was permanent, that is fully diagnosed, fully treated and fully stabilised, for the purposes of the Impairment Determination and could therefore attract an Impairment Rating of 5 points under Table 2 of the Impairment Tables.[35]
[35] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraphs 31 and 34.
The Tribunal has had regard to the material before it and the evidence provided from the Applicant himself at the hearing regarding his Upper Limb condition. Dr Trifiletti detailed the Applicant’s history of right shoulder pain in a medical report that was attached to the Applicant’s DSP application.[36] Dr Trifiletti further stated that the Applicant developed right shoulder tendonitis in 1992 and that he was: “medically unfit for tasks entailing heavy lifting, overhead arm work or repetitive use of the right upper limb”.[37] The Applicant had surgical treatment for his right shoulder tendonitis in November 1992.[38] Dr Trifiletti was of the view that the Applicant had a residual work capacity for full-time light employment so long as that work avoided repetitive use of the right upper limb and that he would benefit from a retraining program.[39]
[36]          Exhibit 1, T Documents, T14, page 88, Medical Report from Dr Trifiletti, dated 27 January 1995.
[37]          Exhibit 1, T Documents, T14, page 88, Medical Report from Dr Trifiletti, dated 27 January 1995.
[38]          Exhibit 1, T Documents, T14, page 88, Medical Report from Dr Trifiletti, dated 27 January 1995.
[39]          Exhibit 1, T Documents, T14, page 88, Medical Report from Dr Trifiletti, dated 27 January 1995.
In a medical report dated 7 January 2002, a General Practitioner, Dr Dean, reported that the Applicant’s rotator cuff syndrome was stable and likely to persist for at least two years.[40] Notwithstanding this opinion, Dr Dean reported that the Applicant would be capable of performing more than 30 hours of work per week.[41]
[40] Exhibit 1, T Documents, T16, pages 91-95, Medical Report from Dr Dean, dated 7 January 2002.
[41] Exhibit 1, T Documents, T16, page 94, Medical Report from Dr Dean, dated 7 January 2002.
On 7 March 2002, a medical report from Dr Sutherland, a General Practitioner, confirmed that the Applicant’s right shoulder condition was stable and likely to persist for at least
[42] Exhibit 1, T Documents, T19, pages 120-124, Medical Report from Dr Sutherland, dated 7 March
2002.
2 years.[42]

Both Dr Dean and Dr Sutherland reported that the Applicant was not undertaking treatment for his right shoulder condition.[43]
[43] Exhibit 1, T Documents, T16, page 92, Medical Report from Dr Dean, dated 7 January 2002; T19,
page 121, Medical Report from Dr Sutherland, dated 7 March 2002.
On 9 May 2016, Dr Holthouse stated in the Applicant’s DSP Medical Review Form that the Applicant suffered from right shoulder pain and that this condition was expected to affect his ability to function for more than 24 months.[44] Further, Dr Holthouse provided additional evidence by telephone to Centrelink that the Applicant’s Upper Limb Condition was unlikely to improve with any additional treatment.[45]
[44] Exhibit 1, T Documents, T23, page 139, DSP Medical Review Form, issue date 15 April 2016.
[45] Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
The Respondent accepts that the weight of evidence supports a finding that the Applicant’s Upper Limb Condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.[46] Having considered the material before me, I find that the Applicant’s Upper Limb condition was fully diagnosed, fully treated and fully stabilised. I am therefore able to assign the conditions an Impairment Rating under Table 2 of the Impairment Determination.
[46] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 33.
The Respondent submitted that the Applicant’s Upper Limb condition attracted an Impairment Rating of 5 points under Table 2 of the Impairment Determination.[47]
[47] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 34.
I will now consider the Impairment Rating that should be assigned to the Applicant’s Upper Limb condition.
Functional Impact
The Table that relates to the Applicant’s right shoulder condition is Table 2. The Introduction to Table 2 states that:
“Table 2 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of hands or arms”.[48]
[48] Impairment Determination, Introduction to Table 2.
As has been discussed previously, the Applicant has had a history of right shoulder pain. It is appropriate when two or more conditions (in this case, right shoulder tendinitis, rotator cuff syndrome and shoulder pain) cause a common or combined impairment, that a single rating be assigned to that combined impairment under a single table.[49]
[49] Impairment Determination, s 10(5).
The Rules for applying the Impairment Tables emphasise that the tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[50]
[50] Impairment Determination, s 6(2).
On 9 May 2016, Dr Holthouse reported that the Applicant had right shoulder pain which, when he attempted to move during sleep, caused him to wake up.[51] Dr Holthouse also reported that the Applicant experienced pain when lifting and was unable to work overhead.[52] However, when Dr Holthouse provided additional evidence in a telephone conversation on 29 August 2016, Dr Holthouse is reported as confirming that the Applicant was able to pick up heavier objects and used an example of a 2 litre carton of liquid and his ability to carry a full shopping bag.[53] Dr Holthouse further reported that the Applicant would have some difficulty performing repetitive activities such as handling very small objects such as coins, doing up buttons and reaching up and or out to pick up objects.[54]
[51]          Exhibit 1, T Documents, T23, page 139, DSP Medical Review Form, issue date 15 April 2016.
[52]          Exhibit 1, T Documents, T23, page 139, DSP Medical Review Form, issue date 15 April 2016.
[53]          Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
[54]          Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
On 31 August 2016, the Applicant attended a face-to-face JCA and reported to the JCA that the impact of his Upper Limb conditions were as follows:[55]
·pain and a restricted range of motion in his right shoulder which is aggravated by physical activity;
·inability to lift heavy weights, but he can lift lighter weights;
·can unpack shopping items and pick up and carry a two litre bottle of milk in his left hand;
·independence in showering and toileting;
·some difficulty in reaching and hanging up washing on a clothes line at head height;
·can grip pegs and use both arms to peg items on the line;
·can use right arm to lower items; and
·difficulty handling money, coins and buttoning shirts.
[55] Exhibit 1, T Documents, T26, pages 145-154, Job Capacity Assessment Report, dated 31 August
2016.
The Applicant reported at hearing that he is able to perform various activities at home, including self-care, cooking, light cleaning and washing up. Further, the Applicant reported to the SSCSD that he was able to perform various activities at home including cooking, tying up shoe laces and writing.[56]
[56] Exhibit 1, T Documents, T2, pages 2-10, Decision of the Social Services & Child Support Division,
dated 26 March 2017.
As previously stated, the Respondent submitted that the Applicant’s Upper Limb condition attracted an Impairment Rating of 5 points under Table 2 of the Impairment Determination.[57] Table 2 of the Impairment Determination provides the following descriptors for 5 points to be considered appropriate:
(1)        The person can manage most daily activities requiring the use of the hands and    arms, but has some difficulty with most of the following:
(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.[58]
[57]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 34.
[58] Impairment Determination, Table 2.
In order for the Applicant to be assigned an Impairment Rating of 10 points under Table
2 of the Impairment Determination, the Applicant’s medical evidence would need to support a finding that the Applicant satisfied at least 4 of the 6 descriptors for a 10 point rating.[59] Table 2 of the Impairment Determination provides the following descriptors for
10 points to be considered appropriate:
[59] Impairment Determination, Table 2.
(1) The person has difficulty with most of the following:
(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. 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.[60]
[60] Impairment Determination, Table 2.

At the date of cancellation the Applicant was able to pick up and carry a two litre bottle of milk, carry a full shopping bag, peg items on the clothes line, lift lighter weights, tie up shoelaces and write.[61] I accept the Secretary’s submission that no medical evidence was produced to indicate that at the date of cancellation the Applicant was unable to unscrew a bottle cap or use a standard keyboard.[62] There is no medical evidence to support a finding that the Applicant attracts a rating of more than 5 points under Table 2 for his Upper Limb conditions.
[61] Exhibit 1, T Documents, T26, pages 145-154, Job Capacity Assessment Report, dated 31 August
2016; T2, pages 2-10, Decision of the Social Services & Child Support Division, dated 26 March 2017; T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse, dated 29 August 2016.
[62] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 37.
I therefore assign the Applicant’s Upper Limb conditions an Impairment Rating of 5 points under Table 2 of the Impairment Determination.
Spinal Condition
The Secretary contends that at the date of cancellation, the Applicant’s Spinal Condition was permanent, that is fully diagnosed, fully treated and fully stabilised, for the purposes of the Impairment Determination and could therefore attract an Impairment Rating of
[63] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraphs 38 – 41.
10 points under Table 4 of the Impairment Tables.[63]
The Tribunal has had regard to the material before it and the evidence provided from the Applicant himself at the hearing regarding his Spinal condition. At the hearing, the Applicant reported that he has suffered from chronic back pain since the age of 19, as he reports fracturing his spine when he was 19 years old.
On 7 March 2002, Dr Sutherland noted in a medical report that the Applicant’s spinal condition was stable and likely to persist for more than 2 years.[64]
[64] Exhibit 1, T Documents, T19, pages 120-125, Medical Report of Dr Sutherland, dated 7 March 2002.
On 9 May 2016, Dr Holthouse reported that the Applicant’s spinal condition was expected to affect his ability to function for more than 24 months.[65] Dr Holthouse also reported that the Applicant’s spinal condition required further investigation and treatment, and noted that the diagnosis was presumptive and that the Applicant required a CT of his lumbar spine.[66]
[65] Exhibit 1, T Documents, T23, pages 134-136, DSP Medical Review Form, issue date 15 April 2016.
[66] Exhibit 1, T Documents, T23, page 134, DSP Medical Review Form, issue date 15 April 2016.
When Dr Holthouse provided additional evidence in a telephone conversation on
29 August 2016, he confirmed that the Applicant had a CT of his lumbar spine on
[67] Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
29 August 2016 and that it indicated degenerative changes to the Applicant’s lumbar spine. Further, Dr Holthouse reported that the Applicant’s spinal condition was unlikely to improve with additional treatment and that no specialist assessment was required.[67]
The Respondent accepts that the weight of evidence supports a finding that the Applicant’s Spinal Condition was fully diagnosed, fully treated and fully stabilised at the date of cancellation.[68] Based on the material before me, I find that the Applicant’s Spinal condition was fully diagnosed, fully treated and fully stabilised. I am therefore able to assign the condition an Impairment Rating under Table 4 of the Impairment Determination.
[68] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 40.
The Respondent submitted that the Applicant’s Spinal condition attracted an Impairment Rating of 10 points under Table 4 of the Impairment Determination.[69]
[69] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 41.
I will now consider the Impairment Rating that should be assigned to the Applicant’s Spinal condition.
Functional Impact
The Table that relates to the Applicant’s Spinal condition is Table 4. The Introduction to Table 4 states the following:
“Table 4 is to be used where the person has a permanent condition resulting in functional impairment when performing activities involving spinal function, that is, bending or turning the back, trunk or neck.”[70]
[70] Impairment Determination, Introduction to Table 4.
The Rules for applying the Impairment Tables emphasise that the tables may only be applied to a person’s impairment after their medical history, in relation to the condition causing the impairment, has been considered.[71]
[71] Impairment Determination, s 6(2).
In respect of the date of cancellation, the medical evidence of Dr Holthouse is relevant.
On 9 May 2016, Dr Holthouse reported that the Applicant had problems with prolonged sitting, standing, bending and twisting and was experiencing sleep disturbance.[72] On
[72] Exhibit 1, T Documents, T23, page 136, DSP Medical Review Form, issue date 15 April 2016.
[73] Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
29 August 2016, Dr Holthouse provided additional evidence by telephone, and is reported as confirming that the Applicant was unable to bend forward to pick up a light object at knee height.[73]
On 31 August 2016, the Applicant attended a face-to-face JCA and reported to the JCA that the impact of his Spinal condition was as follows:[74]
·constant dull back pain which was aggravated by physical activity;
·able to stand for 10-15 minutes;
·able to walk for 450 meters;
·able to sit in a car for 30 minutes;
·able to twist his head to the side;
·had difficulty bending forward and a reduced range of motion with twisting; and
·able to perform activities of daily living including self-care, cooking, light cleaning, washing and washing up.
[74] Exhibit 1, T Documents, T26, pages 145-154, Job Capacity Assessment Report, dated 31 August
2016.
The Applicant reported at the Tribunal hearing that he is able to walk to the RSL Club, which he estimated was a walk of 450 yards, but after 40 yards he is in pain. He further stated that his back has always been bad, in particular it aches when he goes to bed and it hurts when he sits for too long; he cannot stay in one spot but he needs to move around.
The Respondent submitted that the Applicant’s Spinal condition attracted an Impairment Rating of 10 points under Table 4 of the Impairment Determination.[75] Table 4 of the Impairment Determination provides the following descriptors for 10 points to be considered appropriate:
(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).
[75]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 34.
In order for the Applicant to be assigned an Impairment Rating of 20 points under Table
4 of the Impairment Determination, the Applicant’s medical evidence would need to support a finding that the functional impact of the Applicant’s spinal condition was severe. Table 4 of the Impairment Determination provides the following descriptors for 20 points to be considered appropriate:
(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.
At the date of cancellation, the Applicant was able to sit in a car for 30 minutes, was unable to bend forward to pick up a light object at knee height and had a reduced range of motion with twisting.[76] I accept the Secretary’s submission that there was no corroborating medical evidence to indicate that at the date of cancellation the Applicant’s spinal condition renders him incapable of performing any overhead activities or from turning his head or bending his neck without moving his trunk or bending forward to pick up a light object from a desk or table or to remain seated for at least 10 minutes.[77]
[76] Exhibit 1, T Documents,T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016; T26, pages 145-154, Job Capacity Assessment Report, dated 31 August 2016.
[77] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 44.
There is no medical evidence to support a finding that the Applicant attracts a rating of more than 10 points under Table 4 for his spinal condition.
I therefore assign the Applicant’s Spinal condition an Impairment Rating of 10 points under Table 4 of the Impairment Determination.
Psoriasis and Psoriatic Arthritis condition
The Secretary contends that at the date of cancellation, the Applicant’s Psoriasis condition was fully diagnosed, but not fully treated and fully stabilised and that the Applicant’s Psoriatic Arthritis condition was not fully diagnosed, fully treated and fully stabilised.[78] These conditions cause a common or combined impairment and a single rating can be assigned to that combined impairment under a single table.[79] As such, I will address these conditions together.
[78] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
paragraph 48.
[79] Impairment Determination, s 10(5).
On 19 February 2003, Dr Heugh stated in a medical report that the Applicant was suffering from a Psoriasis condition that was intermittent in nature. Dr Heugh reported that the condition was having a minor functional impact on the Applicant’s ability to work.[80]
[80] Exhibit 1, T Documents, T17, pages 96-111, Medical Assessment Report completed by Dr Heugh,
dated 19 February 2003.
In his report of 9 May 2016, Dr Holthouse stated that the Applicant’s Psoriasis condition was generally well managed and caused minimal or limited impact on the Applicant’s ability to function at that time.[81] On the 29 August 2016, Dr Holthouse, provided additional evidence in a telephone conversation and is reported as confirming that the Applicant had:
“…test results within normal ranges for arthritic changes, awaiting tests for blood work regarding psoriasis. For condition of psoriasis Dr Holthouse confirmed no recent specialist referral within 2 years, and future treatment is awaiting results of blood tests.” [82]
[81] Exhibit 1, T Documents, T23, page 140, DSP Medical Review Form, issue date 15 April 2016.
[82] Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
On 28 July 2017, Dr Dickenson wrote a referral letter for the Applicant to see a Rheumatologist, Dr Bambery for the purpose of diagnosis.[83] Dr Dickenson stated that the Applicant suffered from severe psoriasis and that he suspected that the Applicant may have psoriatic arthritis.[84] Dr Dickenson also indicated that the Applicant’s Psoriasis condition was not responding to medication, namely Daivobet and that the Applicant had been offered a systemic treatment of Methotrexate, but had declined this treatment citing concerns of side effects.[85] The Applicant explained at the Tribunal hearing that he had declined the treatment because Methotrexate, as a side effect, increases a person’s risk of contracting cancer. The Tribunal has no expert evidence before it to corroborate this statement.
[83]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
Annexure A: Referral letter from Dr Dickenson to Dr Bambery, dated 28 July 2017.
[84]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
Annexure A: Referral letter from Dr Dickenson to Dr Bambery, dated 28 July 2017.
[85]          Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017,
Annexure A: Referral letter from Dr Dickenson to Dr Bambery, dated 28 July 2017.

The Tribunal notes that the Respondent accepts that the Applicant’s Psoriasis condition is “long standing” and that the evidence from both Dr Holthouse and Dr Dickenson indicate that the Applicant’s Psoriasis condition is fully diagnosed, but not fully treated and fully stabilised.[86] I am satisfied that the Applicant’s Psoriasis condition is fully diagnosed.
Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017, para 48.
The evidence of both Drs Holthouse and Dickenson would indicate that the Applicant’s Psoriasis condition was subject to ongoing and regular assessment and treatment as at the date of the date of cancellation. Further, the Applicant has declined the Methotrexate treatment. In the absence of any corroborating medical evidence from Dr Bambery regarding the risks of the medication, although I have considered the Applicant’s views, I am not convinced that there exists a medical or other compelling reason for the Applicant not to undergo the proposed treatment.
Based on the evidence before me, I find that the Applicant’s Psoriasis condition is fully diagnosed, but not fully treated and stabilised.
The Respondent contends that the Applicant’s Psoriatic Arthritis condition is not fully diagnosed, not fully treated and fully stabilised.[87]
[87] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017, para
48.
Based on the information discussed above, I find that the Applicant’s Psoriatic Arthritis condition is not fully diagnosed, fully treated and fully stabilised.
Therefore, I am unable to assign the conditions an Impairment Rating under Table 14 of the Impairment Determination.
Other conditions
The Applicant has listed a number of other conditions to be considered. For each of these conditions, excluding the Applicant’s Gastroenterology condition, the Respondent has conceded that they were fully diagnosed, but contended that they were not fully treated and fully stabilised.[88] I will address each of these conditions in turn.
[88] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017, para
52.
Hip Pain condition
On 9 May 2016, Dr Holthouse reported that the Applicant was suffering from right Hip Pain, but that the condition was generally well managed and in terms of the Applicant’s ability to function, caused minimal impact.[89]
[89] Exhibit 1, T Documents, T23, page 140, DSP Medical Review Form, issue date 15 April 2016.
The Applicant has not provided any medical information in relation to treatment or the impact of this condition at the date of cancellation. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
Arthritis condition
On 9 May 2016, Dr Holthouse reported that the Applicant was suffering from arthritis, but that the condition was generally well managed and in terms of the Applicant’s ability to function, caused minimal impact.[90]
[90] Exhibit 1, T Documents, T23, page 140, DSP Medical Review Form, issue date 15 April 2016.
When Dr Holthouse provided additional evidence in a telephone conversation on

29 August 2016, Dr Holthouse is reported as confirming that recent radiological test results were within normal ranges for arthritic changes.[91]
[91] Exhibit 1, T Documents, T25, pages 143-144, Additional Evidence for DSP Record: Dr Holthouse,
dated 29 August 2016.
The Applicant has not provided any medical information in relation to treatment or the impact of this condition at the date of cancellation. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
COPD condition
On 9 May 2016, Dr Holthouse reported that the Applicant was suffering from COPD, but that the condition was generally well managed and in terms of the Applicant’s ability to function, caused minimal impact.[92]
[92] Exhibit 1, T Documents, T23, page 140, DSP Medical Review Form, issue date 15 April 2016.
The Applicant has not provided any medical information in relation to treatment or the impact of this condition at the date of cancellation. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
Gastroenterology condition
On 30 November 2016, Dr Dickenson referred the Applicant to Dr Ang for treatment of the Applicant’s Gastroenterology condition.[93] Dr Dickenson also made note of the Applicant’s history of heavy alcohol consumption and suggested that it may have been the trigger for the symptoms.
[93] Exhibit 1, T Documents, T31, pages 166-167, Referral letter from Dr Dickenson to Dr Ang, dated 30
November 2016.
I accept the Respondent’s contention that the Applicant’s gastroenterology symptoms had not been diagnosed at the date of cancellation.[94] Further, the Applicant has not provided any medical information in relation to treatment or the impact of this condition at the date of cancellation. As such, I cannot be satisfied that this condition is fully treated or fully stabilised. Consequently, I am unable to assign an Impairment Rating to this condition.
Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, dated 20 December 2017, para 53.
CONCLUSION
On the basis of the evidence before me, I am not satisfied that the Applicant’s Psoriasis, Hip Pain, Arthritis and COPD were fully treated and fully stabilised at the date of cancellation.
Further, I am not satisfied that the Applicant’s Psoriatic Arthritis and Gastroenterology conditions were fully diagnosed, fully treated and fully stabilised at the date of cancellation.
I have assigned the Applicant’s Upper Limb condition an Impairment Rating of 5 points under Table 2 of the Impairment Determination.
I have assigned the Applicant’s spinal condition an Impairment Rating of 10 points under Table 4 of the Impairment Determination.
As the Applicant does not have a total of 20 or more Impairment Points under the Impairment Tables, he does not satisfy the requirement under section 94(1)(b) of the Act. Therefore, the Applicant does not qualify for DSP at the date of cancellation.
CONTINUING ABILITY TO WORK
Given that the Applicant does not satisfy the requirement under section 94(1)(b) of the Act, it is not necessary for me to consider whether the Applicant had a continuing inability to work at the date of cancellation.
DECISION
The decision to cancel the Applicant’s DSP on 5 September 2016 is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member P Clauson

............................[SGD]............................................
Associate
Dated: 6 July 2018

Date of hearing: 9 March 2018

Applicant: In person

Advocate for the Respondent: Nick Warren

Solicitors for the Respondent: Department of Human Services

[2018] AATA 2112

6 July 2018

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Appeal

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Standing

Date of hearing:	9 March 2018
Applicant:	In person
Advocate for the Respondent:	Nick Warren
Solicitors for the Respondent:	Department of Human Services