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

Teuati and Secretary, Department of Social Services (Social services second review) [2018] AATA 853 (11 April 2018)
Division:GENERAL DIVISION
File Number: 2017/3140
Re:Jannine Teuati
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:11 April 2018
Place:Brisbane

The Tribunal affirms the decision under review.
...........................[Sgd].............................................
Member D K Grigg
CATCHWORDS
SOCIAL SECURITY – disability support pension – whether impairments permanent – whether impairments attracted 20 points or more under the impairment tables during the relevant period – decision under review is 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)
Social Security (Active Participation for Disability Support Pension) Determination 2014
REASONS FOR DECISION
Member D K Grigg
11 April 2018
INTRODUCTION & CLAIM HISTORY

On 18 May 2016 Ms Teuati lodged a claim for Disability Support Pension (“DSP”) and reported that she was waiting to have an operation to remove her gall bladder within the next two months.[1]
[1] Exhibit 1, T Documents, T4, pages 53–80, Ms Teuati’s Claim for DSP dated 18 May 2016.
Following a Job Capacity Assessment (“JCA”), the Department of Human Services (“Centrelink”) rejected Ms Teuati’s claim for DSP on the basis that she did not have impairments with a total impairment rating of 20 points or more.[2]
[2] Exhibit 1, T Documents, T6, pages 86 – 87, Rejection of claim for DSP dated 21 July 2016.
Ms Teuati sought a review of Centrelink’s decision by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that
[3] Exhibit 1, T Documents, T8, pages 95 – 101, Decision and notes of ARO dated 14 December 2016.
Ms Teuati’s medical conditions were not permanent, as defined in the Social Security Act 1991 (Cth) (the “Act”), or did not attract an impairment rating of 20 points or more, and she did not meet the program of support requirements.[3]
Ms Teuati lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal. The SSCSD rejected Ms Teuati’s claim and affirmed the ARO’s decision on 12 April 2017.[4]
[4] Exhibit 1, T Documents, T2, pages 3 – 7, SSCSD’s Decision and Reasons for Decision dated 12 April 2017.
Ms Teuati has sought a review of the SSCSD’s decision by this Tribunal.[5]
[5] Exhibit 1, T Documents, T1, pages 1–2, Application for Review of Decision dated 24 May 2017.
ISSUES FOR DETERMINATION
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Ms Teuati must have a physical, intellectual or psychiatric impairment;
(b)Ms Teuati’s impairment/s must be of 20 points or more under the Impairment Tables contained within the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (“Determination”);[6]
(c)Ms Teuati has a continuing inability to work.
[6] A legislative instrument made under the Act: see s 26(1).
The date for determining whether Ms Teuati meets the Section 94 Requirements is the date the claim for DSP was lodged (in this instance, 18 May 2016), unless Ms Teuati becomes qualified within 13 weeks of lodging the claim, in which case her start day is the day she becomes qualified.[7] Therefore, to qualify for DSP Ms Teuati must have met the Section 94 Requirements between 18 May 2016 and 17 August 2016 (“Qualification Period”).
[7] See ss 41 and 42 and clauses 3 and 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999
(Cth).
It is important to keep in mind that medical evidence concerning the functional impact of Ms Teuati’s impairments after the Qualification Period can be considered if it “casts light on” the functional impact of the impairments as at the Qualification Period.[8]
DID MS TEUATI HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION PERIOD: SECTION 94(1)(A)?
[8] See Harris v Secretary, Department of Employment and Workplace Relations [2007] FCA 404 at [1]; and on
appeal Secretary, Department of Employment and Workplace Relations v Harris [2007] FCAFC 130; (2007) 97 ALD 534; and Gallacher v Secretary, Department of Social Services [2015] FCA 1123 at [25]-[29].
What is an Impairment
The Determination defines “Impairment” to mean “a loss of functional capacity affecting a person’s ability to work that results from the person’s condition” and “condition” as “a medical condition”.[9]
Ms Teuati’s medical conditions
[9] Determination, s 3.
Diabetes
Ms Teuati has type II diabetes.[10]
[10] Exhibit 1, T Documents, T14, page 130, Report of Royal Darwin Hospital dated 6 March 2012.
In October 2011 Ms Teuati was referred to a podiatrist for a diabetic foot assessment.Mr Stephen Bond, podiatrist, reported that Ms Teuati had no acute problems and no symptoms of neuropathy.[11]
[11] Exhibit 1, T Documents, T13, page 129, Report of Mr Bond dated 26 October 2011.
In February 2013 Ms Teuati reported that her diabetes is under reasonable control on insulin and tablets.[12]
[12] Exhibit 1, T Documents, T17, page 134, Report of Dr Bade dated 21 February 2013.
In April 2016 Ms Teuati was referred to the endocrine clinic at Royal Darwin Hospital for management of her diabetes which has been difficult to control for the last 22 years. Dr Gehlert, Endocrine Registrar, reported that the plan was to:[13]
(a)attempt to reduce the blood glucose levels through the use of Metformin and Empagliflozin;
(b)monitor ketones if she was unwell;
(c)monitor glucose levels three times a day; and
(d)call the diabetes educators in two weeks time to see what her blood glucose profile is.
[13] Exhibit 1, T Documents, T 23, pages 142 – 143, Report of Dr Gehlert dated 20 April 2016.
In July 2016 Dr Gehlert reported that:[14]
(a)it appeared that the Empagliflozin had had significant benefit;
(b)Ms Teuati has had no ill effects from the Metformin and is happy to continue with it;
(c)her blood sugars have significantly improved and it is hoped they will continue to improve;
(d)the plan was to increase Metformin, to increase the frequency of blood glucose monitoring and to review again in three months time.
[14] Exhibit 1, T Documents, T 27, pages 148- 151, Report of Dr Gehlert dated 20 July 2016.
In October 2016 Dr Gehlert reported that:[15]
[15]         Exhibit 1, T Documents, T317, pages 157- 161, Report of Dr Chambers dated 5 October 2016.
(a)Ms Teuati’s glycaemic control has significantly improved this year;
(b)Ms Teuati is monitoring herself infrequently but it is suspected that her sub optimal glycaemic control is due to post-prandial hyperglycaemia and particular post breakfast;
(c)the plan was:
(i) to continue with the Metformin and consider increasing it in the future but she had significant diarrhoea with 2 g;
(ii)    to undertake paired BGL testing to assess a post-prandial hyperglycaemia;
(iii)    to contact diabetes educators with BGL readings;
(iv)    to increase fenofibrate;
(v)    to trial a different size needle;
(vi) to continue regular podiatry input for chemotherapy induced peripheral neuropathy;
(vii)   to arrange optometry review; and
(viii)   to have further review in three months time
Dyslipidaemia
Ms Teuati has a background of dyslipidaemia.[16]
[16] Exhibit 1, T Documents, T14, page 130, Report of Royal Darwin Hospital dated 6 March 2012.
Anaemia
Ms Teuati has had anaemia in the past and in September 2015 was low in iron. The Royal Darwin Hospital arranged for her to have a gastroscopy and colonoscopy.[17]
[17] Exhibit 1, T Documents, T20, page 137, Report of Royal Darwin Hospital dated 15 September 2015.
In March 2016 in the Royal Darwin Hospital reported that:[18]
(a)the gastroscopy and colonoscopy performed in 2015 were normal; and
(b)Ms Teuati’s haemoglobin had improved following an iron infusion.
[18] Exhibit 1, T Documents, T21, page 138, Report of Royal Darwin Hospital dated 1 March 2016.
Liver
In November 2011 Ms Teuati had an ultrasound of her abdomen which showed multiple lesions on a background of fatty liver and spleric enlargement.[19]
[19] Exhibit 1, T Documents, T14, page 131, Ultrasound report dated 17 November 2011.
In March 2012 the Royal Darwin Hospital reported that Ms Teuati:[20]
(a)had been reviewed by the liver clinic following four years of abnormal liver function tests; and
(b)reported that she felt pretty much her normal self with no new symptoms however she has some persistent symptoms - she gets very bloated and has loose bowel motions with episodes of incontinence.
[20] Exhibit 1, T Documents, T14, page 130, Report of Royal Darwin Hospital dated 6 March 2012.
In April 2015 the Royal Darwin Hospital reported that Ms Teuati:[21]
(a)had complained of right upper quadrant pain;
(b)had a hepatomegaly which is at least 24 cm and was mildly tender on palpation; and
(c)was to have further blood tests and a CT scan of the liver to further was assess the lesion.
[21] Exhibit 1, T Documents, T19, page 136, Report of Royal Darwin Hospital dated 28 April 2015.
In September 2015 the Royal Darwin Hospital reported that Ms Teuati:[22]
(a)has stable focal nodular hyperplasia; and
(b)will require annual ultrasound surveillance.
[22] Exhibit 1, T Documents, T20, page 137, Report of Royal Darwin Hospital dated 15 September 2015.
In March 2016 the Dr Suresh Sivanesan, Gastroenterologist, Royal Darwin Hospital reported that Ms Teuati:[23]
(a)had cirrhosis and will need to be fitted with a PillCam and then reviewed again; and
(b)needed to lose weight.
[23] Exhibit 1, T Documents, T21, page 138, Report of Royal Darwin Hospital dated 1 March 2016.
Ms Teuati was reviewed by the Oncology Outpatient Clinic in March 2016 and complained of abdominal bloating, and reduced appetite. Examination revealed nodular enlargement of the liver with mild ascites. Dr Michail Charakidis, Medical Oncologist, planned to repeat imaging of Ms Teuati’s brain, chest, abdomen, pelvis and repeat blood work and would discuss the case in a multidisciplinary meeting to further define the aetiology behind the nodularity in her liver.[24]
[24] Exhibit 1, T Documents, T22, pages 140-141, Report of Dr Charakidis dated 23 March 2016.
In or around May 2016 consideration was being given to whether or not a biopsy was possible and that it was planned for Ms Teuati to see the new hepatobiliary surgeon for consideration of further management. Dr Suresh Sivanesan reported that Ms Teuati was suffering from some minor bright red rectal bleeding, possibly anorectal in origin, that he would see her in six months time with a repeat of the abdominal ultrasound, that she needs to consider weight loss to improve her liver enzymes, and will need further blood tests before her next appointment.[25]
[25] Exhibit 1, T Documents, T 24, pages 144 – 145, Report of Dr Sivanesan dated 10 May 2016.
In May 2016 Dr Hamish Scott, General Practitioner, reported that Ms Teuati’s liver disease was under investigation and was causing her fatigue and abdominal pain and was permanent and likely to persist for two years or more.[26]
[26] Exhibit 1, T Documents, T 26, page 147, Medical Certificate of Dr Scott dated 25 May 2016.
In August 2016 Dr Susan Chambers, General Practitioner, reported that Ms Teuati’s liver disease was causing her fatigue and abdominal pain, was permanent and likely to persist for two years or more and her hyperplasia will continue to be monitored.[27]
[27] Exhibit 1, T Documents, T 29, page 154, Medical Certificate of Dr Chambers dated 17 August 2016.
In November 2016 Dr Ajith De Silva Rathubaduge, General Practitioner, reported that Ms Teuati’s chronic liver disease was permanent and likely to last more than two years and was causing her tiredness and abdominal pain and the plan was for continued review.[28]
[28] Exhibit 1, T Documents, T 33, page 163, Medical Certificate of Dr Rathubaduge dated 12 December 2016.
In December 2017 Dr Deborah Sambo, General Practitioner, reported that Ms Teuati was currently seeing the hepatologist for her liver cirrhosis.[29]
[29] Exhibit 3, Report of Dr Sambo dated 6 December 2017.
Breast cancer - Lymphoedema
In February 2013 Ms Teuati had an ultrasound of her right breast which indicated the potential for malignancy and as a result on she underwent an optional guided biopsy which was sent to pathology for analysis.[30] The pathology report concluded that Ms Teuati had a poorly differentiated invasive breast duct carcinoma.[31]
[30] Exhibit 1, T Documents, T15, page 132, Ultrasound report dated 7 February 2013.
[31] Exhibit 1, T Documents, T16, page 133, Pathology report dated 14 February 2013.
A lumpectomy was performed and chemotherapy and radiotherapy completed in September 2013.[32]
[32] Exhibit 1, T Documents, T19, page 136, Report of Royal Darwin Hospital dated 28 April 2015.
In January 2017 Dr Ajith De Silva Rathubaduge reported that Ms Teuati’s breast cancer was causing her tiredness, pains and aches of the chest and shoulder and that the current treatment is follow-up with mammogram and continued monitoring by the cancer clinic.[33]
[33] Exhibit 1, T Documents, T 34, page 164, Medical Certificate of Dr Rathubaduge dated 3 January 2017.
In May 2017 Ms Caroline Oertel, Occupational Therapist Clinic Coordinator Lymphoedema Clinic, reported that:[34]
(a)Ms Teuati has been receiving treatment since 27 April 2017 having presented with symptoms of right upper limb secondary lymphoedema resulting from the treatment of her breast cancer in 2013;
(b)Ms Teuati is experiencing discomfort in the functional loss of her right arm which is impacting on her activities of daily living and the quality of life; and
(c)the treatment Ms Teuati is undertaking at the clinic is to support long-term management of this chronic condition.
[34] Exhibit 1, T Documents, T 37, page 167, Report of Ms Oertel dated 15 May 2017.
In November 2017 Ms Caroline Oertel, advised that the long-term management of Ms Teuati’s chronic lymphoedema condition includes wearing a compression sleeve and glove.[35]
[35] Exhibit 4, Report of Ms Oertel dated 9 November 2017.
In December 2017 Dr Sambo reported that Ms Teuati has ongoing issues with lymphoedema in her right arm.[36]
[36] Exhibit 3, Report of Dr Sambo dated 6 December 2017.
Gallstones
In May 2016 Dr Scott reported that Ms Teuati had gallstones which was temporary and that further surgery was planned.[37]
[37] Exhibit 1, T Documents, T 26, page 147, Medical Certificate of Dr Scott dated 25 May 2016.
On 8 July 2016 Ms Teuati had a cholecystectomy.[38]
[38] Exhibit 1, T Documents, T 27, page 148, Report of Dr Gehlert dated 20 July 2016.
Peripheral Neuropathy
In July 2016 Dr Gehlert reported that Ms Teuati had mild peripheral neuropathy secondary to chemotherapy.[39]
[39] Exhibit 1, T Documents, T 27, page 148, Report of Dr Gehlert dated 20 July 2016.
In August 2016 Dr Chambers, General Practitioner, reported that:[40]
(a)Ms Teuati had peripheral neuropathy which was permanent and likely to persist for two more years;
(b)the peripheral neuropathy was causing her to be unable to feel her feet, was painful, was affecting her mobility and she was struggling to walk; and
(c)the planned treatment is to monitoring and podiatry treatment.
[40] Exhibit 1, T Documents, T 29, page 154, Medical Certificate of Dr Chambers dated 17 August 2016.
In December 2016 Dr Ajith De Silva Rathubaduge reported that Ms Teuati’s peripheral neuropathy was permanent and likely to last more than two years and was causing her numbness, painful feet, tingly feeling in her feet, and swelling on and off and the plan was for continued review.[41]
[41] Exhibit 1, T Documents, T 33, page 163, Medical Certificate of Dr Rathubaduge dated 12 December 2016.
In April 2017 Ms Teuati had an MRI of her left foot which found:[42]
(a)early degenerative changes at the lateral tarsometatarsal joints with minimal superimposed joint effusions and synovitis;
(b)a small ganglion on the dorsal aspect of the head of the talus; and
(c)first and third web-space intermetatarsal bursitis.
[42] Exhibit 1, T Documents, T 35, page 165, MRI report dated 20 April 2017.
In December 2017 Dr Sambo reported that Ms Teuati has ongoing pain from bursitis in her feet.[43]
[43] Exhibit 3, Report of Dr Sambo dated 6 December 2017.
Chronic back pain
In November 2016 Dr Ajith De Silva Rathubaduge reported that Ms Teuati had chronic back pain due to degenerative discs in her spine.[44]
[44] Exhibit 1, T Documents, T 32, page 162, Report of Dr Rathubaduge dated 28 November 2016.
In January 2017 Dr Ajith De Silva Rathubaduge reported that Ms Teuati’s back pain was permanent and likely to persist for two years or more and was causing tenderness over the lower back and stiffness in her back and that the current treatment is Panadol.[45]
[45] Exhibit 1, T Documents, T 34, page 164, Medical Certificate of Dr Rathubaduge dated 3 January 2017.
Melanoma
In December 2017 Dr Sambo reported that Ms Teuati had been diagnosed with Melanoma In Situ Clark Level One in her neck and Melanoma In Situ Clark Level One in her back.[46]
[46] Exhibit 3, Report of Dr Sambo dated 6 December 2017.
Spina Bifida
In December 2017 Dr Sambo reported that Ms Teuati had been diagnosed with spina bifida occulta.[47]
[47] Exhibit 3, Report of Dr Sambo dated 6 December 2017.
Conclusion on Impairments
The Secretary accepts that Ms Teuati suffers from a physical impairment for the purposes of section 94(1)(a) at the Qualification Period.[48]
[48] Exhibit 2, Secretary's Statement of Facts and Contentions dated 29 January 2018, para 24.
In light of the above medical evidence the Tribunal finds that at the Qualification Period,

Ms Teuati suffered from a Liver Impairment, Peripheral Neuropathy Impairment, Lymphoedema Impairment and Chronic Back Pain Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
The Tribunal also accepts that Ms Teuati had diabetes, hypertension, dyslipidaemia and gastro-oesophageal reflux disorder. However, the medical evidence indicates that these conditions are not having any significant impact on her ability to function. Ms Teuati also reported to the JCA that these conditions were having minimal impact on her day to day functioning.[49] As a result these conditions will not be considered for the purpose of this DSP application.
[49]Exhibit 1, T Documents, T5, pages 82-83, JCA report dated 19 July 2016; T7, page 93, JCA report dated 6 December 2016.
The Tribunal also accepts that Ms Teuati had anaemia. However, the medical evidence indicates that this condition had improved and was not having any significant impact on her ability to function. Therefore, this condition will not be considered for the purpose of this DSP application.
The Tribunal also accepts that Ms Teuati had gallstones. These were removed during the Qualification Period and are no longer causing Ms Teuati any issues. Therefore, this condition will not be considered for the purpose of this DSP application.
In relation to Ms Teuati’s breast cancer, it has now been fully treated. There are conditions that have arisen as a result of the cancer, but the cancer itself no longer exists.

In relation to the melanomas, bursitis and spina bifida occulta conditions these were diagnosed more than a year after the Qualification Period and therefore cannot be considered in relation to this DSP application.
There is also reference in the medical evidence to Ms Teuati having had some depression, which is understandable given her cancer diagnosis and the fact that that her mother also struggled with cancer and subsequently passed away. However, Ms Teuati told the Tribunal she manages it herself and reported to the JCA that this condition was well managed and was having minimal impact on her day to day functioning.[50] Therefore, this condition will not be considered for the purpose of this DSP application.
DO MS TEUATI’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
[50]Exhibit 1, T Documents, T5, pages 82-83, JCA report dated 19 July 2016; T7, page 93, JCA report dated 6 December 2016.
How are Impairment Ratings Assessed?
The Impairment Tables are used to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act.[51] They are function based[52] and designed to assign ratings to determine the level of functional impact of impairment (“Impairment Rating”) and not to assess conditions.[53]
[51] Determination, s 4(2) and 5(2)(a).
[52] Determination, s 5(2)(b) and (c).
[53] Determination, s 5(2)(d).
An Impairment Rating can only be assigned to an impairment if:[54]
(a)Ms Teuati’s condition causing that impairment is “permanent”; and
(b)the impairment that results from that condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[54] Determination, see s 6(3).
Ms Teuati’s condition/s can only be “permanent” for the purposes of the Determination if the following conditions are satisfied:[55]
(a)the condition has been fully diagnosed by an appropriately qualified medical practitioner;
(b)the condition has been fully treated;
(c)the condition has been fully stabilised; and
(d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.
[55] Determination, see s 6(4).
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated[56] the following must be considered:[57]
(a)whether there is corroborating evidence of the condition; and
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next 2 years.
[56] For the purposes of ss 6(4)(a) and (b) of the Determination.
[57] Determination, see s 6(5).
A condition is fully stabilised[58] if:[59]
(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[60]; or
(ii)there is a medical or other compelling reason for the person not to undertake reasonable treatment.
[58] For the purposes of ss 6(4)(c) and 11(4) of the Determination.
[59] Determination, see s 6(6).
[60] For reasonable treatment see s 6(7) of the Determination.
Once it has been established that the applicant for DSP has a permanent impairment, it can then be determined whether the permanent impairments are likely to persist for at least 2 years. If the answer to that question is yes, an Impairment Rating using the Impairment Tables can be assigned.
Before applying the Tables, Ms Teuati’s medical history, in relation to the condition causing the Impairments, must be considered.[61]
[61] Determination, see s 6(2).
IS MS TEUATI’S LIVER IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Ms Teuati’s Liver Impairment is permanent. The Secretary accepts that Ms Teuati’s Liver Impairment has been fully diagnosed, fully treated and fully stabilised.[62]
[62] Exhibit 2, Secretary's Statement of Facts and Contentions dated 29 January 2018, para 40.
Therefore, an Impairment Rating can be assigned.
Using the Impairment Tables
The level of impact of Ms Teuati’s Impairment needs to be assessed against the descriptors[63] (which describe the level of functional impact resulting from a permanent condition) contained within the relevant Tables in order to assign an impairment rating (the number in the column in a Table headed “Points” corresponding to a descriptor).[64]
[63] Determination, see ss 3 and 5(3).
[64] Determination, see ss 3 and 5(3).
Section 6 of the Determination sets out the rules governing the determination of impairment.
The impairment of a person must be assessed on the basis of what the person can, or could do, not on the basis of what the person chooses to do or what others do for the person.[65]
[65] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[66]
(a)the information provided by the health professionals specified in the relevant Table; and
(b)any additional medical or work capacity information that may be available; and
(c)any information that is required to be taken into account under the Tables, including as specified in the introduction to each Table.
[66] Determination, see s 7.
I must not take into account the following information in applying the Tables:[67]
(a)symptoms reported by Ms Teuati in relation to her condition where there is no corroborating evidence;
(b)unless required under the Tables, the impact of non-medical factors such as the availability of suitable work in Ms Teuati’s local community.
[67] Determination, see s 8.
Which Tables are appropriate are determined by:[68]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[68] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[69]
[69] Determination, see s 10(3).
If an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[70]
[70] Determination, see s 11(1).
The descriptor applies if that person can do the activity normally and on a repetitive or habitual basis and not only once or rarely.[71]
[71] Determination, see s 11(3).
Where a person’s diagnosed condition results in no impairment, the impairment should be assessed as having no functional impact and a zero rating must be assigned.[72]
[72] Determination, see s 11(5).
Evidence of impact on function
The medical evidence indicates that Ms Teuati’s Liver Impairment is having the following impacts on her:
·abdominal bloating and pain;[73]
·reduced appetite;
·rectal bleeding; and
·fatigue/poor energy/tiredness.[74]
[73]Exhibit 1, T Documents, T7, pages 89 and 91, JCA report dated 6 December 2016; T26, page 147, Medical Certificate of Dr Scott dated 25 May 2016; T29, page 154, Medical Certificate of Dr Chambers dated 17 August 2016; T33, page 163, Medical Certificate of Dr Rathubaduge dated 12 December 2016.
[74]Exhibit 1, T Documents, T26, page 147, Medical Certificate of Dr Scott dated 25 May 2016; T29, page 154, Medical Certificate of Dr Chambers dated 17 August 2016; T32, page 162, Report of Dr Rathubaduge dated 28 November 2016; T33, page 163, Medical Certificate of Dr Rathubaduge dated 12 December 2016.
Ms Teuati reported to the JCA in December 2016 that she was independent for personal care and day to day activities, can stand for 10 minutes and was independently mobile.[75] Ms Teuati told the Tribunal that she has declined significantly since then. However, as explained to Ms Teuati, for the purpose of this application, her condition has to be assessed as she was during the Qualification Period.
[75] Exhibit 1, T Documents, T17, page 89, JCA report dated 6 December 2016.
Relevant Impairment Table and Impairment Rating
Based on the impacts described above, the relevant Tables for the purposes of assigning an impairment rating to Ms Teuati’s Impairments are Table 1 which deals with physical exertion and stamina and Table 10 which deals with digestive and reproductive function.
The introduction to Table 1 provides:
·Table 1 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring physical exertion or stamina.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions commonly associated with cardiac or respiratory impairment (e.g. cardiac failure, cardiomyopathy, ischaemic heart disease, chronic obstructive airways/pulmonary disease, asbestosis, mesothelioma, lung cancer, chronic pain);
oa report from a medical specialist confirming diagnosis of conditions commonly associated with extreme fatigue or exhaustion or other conditions affecting physical exertion or stamina (e.g. end stage organ failure, widespread/metastatic cancer, chronic pain, or other long-term conditions where treatment cannot sufficiently control symptoms);
oresults of exercise, cardiac stress or treadmill testing.
To obtain a 5-point rating under Table 1 Ms Teuati must:
(a)experience occasional symptoms (e.g. mild shortness of breath, fatigue, cardiac pain) when performing physically demanding activities and, due to these symptoms, the person has occasional difficulty:
(i)walking (or mobilising in a wheelchair) to local facilities (e.g. a corner shop or around a shopping mall, larger workplace or education or training campus), without stopping to rest; or
(ii)performing physically active tasks (e.g. climbing a flight of stairs or mobilising up a long, sloping pathway or ramp if in a wheelchair) or heavier household activities (e.g. vacuuming floors or mowing the lawn); and
(b) be able to perform most work-related tasks, other than tasks involving heavy manual labour (e.g. digging, carrying or moving heavy objects, concreting, bricklaying, laying pavers).
The introduction to Table 10 provides:
·Table 10 is to be used where the person has a permanent condition resulting in functional impairment related to digestive or reproductive system functions.
·Digestive conditions may include diseases that affect the mouth, salivary glands, oesophagus, stomach, intestines (small or large intestine), pancreas, liver, gall bladder, bile ducts, rectum or anus.
·Reproductive system conditions may include gynaecological diseases (e.g. severe and intractable endometriosis, ovarian cancer) and conditions of the male reproductive system (e.g. testicular cancer).
·Table 13 (Continence Function) is to be used for a person who requires continence and ostomy care (that is, a person with an ileostomy or colostomy).
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist (such as a gastroenterologist, a gynaecologist, an urologist or an oncologist) confirming diagnosis of a digestive or reproductive system condition;
oresults of investigations (such as X-Rays or other imagery, endoscopy or colonoscopy).
·Symptoms of digestive conditions include, but are not limited to, pain, discomfort, nausea, vomiting, diarrhoea, constipation, reflux, heartburn, indigestion or fatigue.
·Personal care needs associated with digestive conditions include, but are not limited to, the need to take medications when symptoms occur, care of special feeding equipment (e.g. Percutaneous Endoscopic Gastrostomy (PEG) button or special feeding tube), special diets or feeding solutions, strategies to relieve pain, additional toileting and personal hygiene needs.
·Symptoms associated with reproductive system conditions include, but are not limited to, pain, fatigue, menorrhagia or dysmenorrhea.
·Personal care needs associated with reproductive system conditions include, but are not limited to, strategies to relieve pain or more frequent menstrual care.
To obtain a 5-point rating under Table 10 at least one of the following must apply:
(a)Ms Teuati’s attention and concentration at a task are sometimes (on most days) interrupted or reduced by pain or other symptoms or personal care needs associated with the digestive or reproductive system condition; or
(b)Ms Teuati is sometimes (less than once per month) absent from work, education or training activities due to the digestive or reproductive system condition.
Considering the evidence available the Tribunal finds that an appropriate rating for Ms Teuati’s Liver Impairment under:
(a)Table 1 is 5 points;[76] and
(b)Table 10 is 5 points.
IS MS TEUATI’S PERIPHERAL NEUROPATHY IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
[76]This was accepted by the Secretary: Exhibit 2 Secretary's Statement of Facts and Contentions dated 29 January 2018, para 46.
Dr Gehlert, Endocrine Registrar, reported in July 2016 that Ms Teuati’s Peripheral Neuropathy Impairment was secondary to her breast cancer treatment.[77]
[77] Exhibit 1, T Documents, T 27, page 148, Report of Dr Gehlert dated 20 July 2016.
The Secretary accepts that Ms Teuati’s Peripheral Neuropathy Impairment has been fully diagnosed.[78] However, the Secretary contends that Ms Teuati’s Peripheral Neuropathy Impairment was not fully treated and fully stabilised because she had not had any treatment at the Qualification Period, had not been reviewed by a neurologist and had not had the standard treatment for this condition as advised by the Queensland Government.[79] Ms Teuati told the Tribunal the treatment recommended to her had been rest, painkillers and elevation.
[78] Exhibit 2 Secretary's Statement of Facts and Contentions dated 29 January 2018, para 33.
[79] Exhibit 2 Secretary's Statement of Facts and Contentions dated 29 January 2018, paras 36-38.
While the evidence supports a finding that Ms Teuati had not commenced any treatment prior to the Qualification Period, the evidence does not indicate that the recommended treatment, namely podiatry, was going to result in a significant improvement in her ability to function within the next two years.[80] In fact Doctors Chambers and Rathubaduge report it will persist for more than 2 years. Further, there is no evidence to suggest that the standard treatments outlined in Queensland Government health guidelines was appropriate for this type of peripheral neuropathy, namely a condition which arisen secondary to cancer.
[80] For reasonable treatment see s 6(7) of the Determination.
In the circumstances the Tribunal finds that Ms Teuati’s Peripheral Neuropathy Impairment was permanent for the purposes of the Act and an Impairment Rating can be assigned.
Evidence of impact on function
The medical evidence indicates that Ms Teuati’s Peripheral Neuropathy Impairment was having the following impacts on her during the Qualification Period:
·Lack of feeling in her feet
·Pain/numbness and tingling in the feet
·Impacting on ability to walk
Ms Teuati told the JCA that:
(a)the condition made it difficult for her to stand for more than 30 minutes and she relies on her children to assist her with shopping;[81] and
(b)she is independently mobile and can manage steps and rise from a seated position without assistance and can stand for at least 10 minutes.[82]
[81] Exhibit 1, T Documents, T5, page 82, JCA report dated 19 July 2016
[82] Exhibit 1, T Documents, T7, page 90, JCA report dated 6 December 2016
Ms Teuati told the Tribunal that she has declined significantly since then. It was explained to Ms Teuati that, for the purpose of this application, her condition as it was during the Qualification Period is what has to be assessed.
Relevant Impairment Table and Impairment Rating
Based on the impacts described above, the relevant Table is Table 3 which deals with lower limb function.
The introduction to Table 3 provides:
·Table 3 is to be used where the person has a permanent condition resulting in functional impairment when performing activities requiring the use of legs or feet.
·The diagnosis of the condition must be made by an appropriately qualified medical practitioner.
·Self-report of symptoms alone is insufficient.
·There must be corroborating evidence of the person’s impairment.
·Examples of corroborating evidence for the purposes of this Table include, but are not limited to, the following:
oa report from the person’s treating doctor;
oa report from a medical specialist confirming diagnosis of conditions associated with lower limb impairment (e.g. arthritis or other condition affecting lower limb joints, paralysis or loss of strength or sensation resulting from stroke or other brain or nerve injury, cerebral palsy or other condition affecting lower limb coordination, inflammation or injury of the muscles or tendons of the lower limbs, amputation or absence of whole or part of lower limb);
oa report from an allied health practitioner (e.g. physiotherapist, occupational therapist or exercise physiologist) confirming the functional impact;
oresults of diagnostic tests (e.g. X-Rays or other imagery);
oresults of physical tests or assessments.
·For the purposes of this Table lower limbs extend from the hips to the toes.
To obtain a 5-point rating under Table 3:
(1)      At least one of the following applies:
(a)the person has some difficulty walking to local facilities (e.g. shops or bus-stop); or
(b)the person has some difficulty walking around a shopping mall or supermarket without a rest; or
(c)       the person has some difficulty climbing stairs; and
(2)       At least one of the following applies:
(a)       the person is unable to stand for more than 10 minutes;
(b)the person can mobilise effectively but needs to use a lower limb prosthesis or a walking stick.
Given the functional evidence concerning Ms Teuati’s ability to function during the Qualification Period the Tribunal finds that a rating of 5 points is not warranted. As a result a zero-point rating is appropriate under Table 3.
IS MS TEUATI’S LYMPHOEDEMA IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?

There was some discussion at the hearing regarding when Ms Teuati’s Lymphoedema began.
There is certainly evidence that Ms Teuati informed the JCA in December 2016 that she had ongoing problems associated with lymphoedema secondary to her breast cancer. However, there is no evidence of a diagnosis until April 2017. As a result the Tribunal cannot conclude that this impairment was fully diagnosed during the Qualification Period. However, even it had been fully diagnosed, the evidence shows that it had not been fully treated as it was not until Ms Teuati commenced seeing the occupation therapist in April 2017 that she began using a compression sleeve and commenced exercises tailored to strengthening her arm.
In the circumstances the Tribunal is unable to find that this impairment was permanent during the Qualification Period and therefore no impairment rating can be assigned.
Clearly, as the condition has now been diagnosed, Ms Teuati can make a new application for DSP in the event that her lymphoedema has now been fully treated and stabilised.
IS MS TEUATI’S CHRONIC BACK PAIN IMPAIRMENT PERMANENT AND LIKELY TO PERSIST FOR AT LEAST 2 YEARS?
The medical evidence establishes that Ms Teuati’s has been suffering from low back pain since 2011.[83] In November 2016 Dr Rathubaduge reports the pain is from degenerative discs. However, it is unclear how that was determined. There is also a lack of medical evidence concerning how this condition has been treated and if there is any further reasonable treatment that could be undertaken. Ms Teuati told the Tribunal that Dr Sambo recommended physiotherapy but there is no corroborating report from Dr Sambo (which is required).
[83]Exhibit 1, T Documents, T25, page 146, Patient Health Summary dated 16 May 2016; T29, page 154, Medical certificate of Dr Chambers dated 17 August 2016.
Given the lack of supporting medical evidence no Impairment Rating can be assigned to Ms Teuati’s Chronic Back Pain Impairment.
WERE MS TEUATI’S IMPAIRMENTS OF 20 POINTS OR MORE UNDER THE IMPAIRMENT TABLES: S 94(1)(B)?
To qualify for DSP a minimum of 20 points is required pursuant to section 94(1)(b) of the Act. The Tribunal has found that Ms Teuati’s permanent Impairments only attracted a 10-point impairment rating, and therefore she does not satisfy section 94(1)(b).
DID MS TEUATI HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
As Ms Teuati’s Impairments did not attract an impairment rating of 20 points or more under the Impairment Tables in the Qualification Period it is unnecessary to consider whether she had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of s 94(1)(c) at that time.
CONCLUSION
Ms Teuati did not qualify for DSP during the Qualification Period. However, given that Ms Teuati indicated there had been significant deterioration in relation to some of her conditions, it is open to her to lodge a new claim for DSP.
The decision under review 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 Member D K Grigg

.........................[Sgd]...............................................
Associate
Dated: 11 April 2018

Date of hearing: 19 March 2018

Applicant: In person

Advocate for the Respondent: Mr Nicholas Warren

Solicitors for the Respondent: Department of Human Services

[2018] AATA 853

11 April 2018

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Appeal

Date of hearing:	19 March 2018
Applicant:	In person
Advocate for the Respondent:	Mr Nicholas Warren
Solicitors for the Respondent:	Department of Human Services