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

[2020] AATA 2046

Thomas and Secretary, Department of Social Services (Social services second review) [2020] AATA 2046 (1 July 2020)

Division:GENERAL DIVISION

File Number:2019/2536          

Re:Danny Bryan Thomas  

APPLICANT

AndSecretary, Department of Social Services

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:1 July 2020

Place:Brisbane

The decision under review is set aside and the matter is remitted for reconsideration in accordance with the recommendation that the Applicant’s impairment is 20 points or more under the Impairment Tables.

...............................[SGD].........................................

Senior Member Katter

CATCHWORDS

SOCIAL SECURITY – disability support pension – whether conditions fully diagnosed, treated and stabilised – whether impairment is 20 points or more under the Impairment Tables during the relevant period – decision under review set aside and remitted

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

CASES

Fanning and Secretary, Department of Social Services [2014] AATA 447

REASONS FOR DECISION

Senior Member Katter

1 July 2020

INTRODUCTION

1. The Applicant seeks a review of the decision of the Social Services & Child Support Division (“SSCSD”) of the Tribunal made on 23 April 2019[1] affirming the Respondent’s decision of 29 September 2018 rejecting a claim for disability support pension[2]. 

   [1]     Exhibit 1, T2, pages 3-8; Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 1.

   [2]     Exhibit 1, T36, pages 217-218; Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 1.

   BACKGROUND

2. The Applicant made a claim for a disability support pension, by a form signed 16 August 2018[3].  At question 165 of that form signed 16 August 2018[4] as to “disabilities or medical conditions that significantly affect your ability to work [including any] physical, intellectual or psychiatric condition or disability”, the Applicant stated[5]: 

   [3]     Exhibit 1, T33, pages 179-212; Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 9.

   [4]     Exhibit 1, T33, page 203 (page 27 of 33 on the form).

   [5]     Exhibit 1, T33, page 203 (page 27 of 33 on the form).

   “Pacemaker/c[h]ronic

   kidney disease,

   diabetes/gout

   severe hypertension  

   coronary artery disease

   sleep apn[o]ea/heart disease

   high cholesterol

   metabolic syndrome

   tend[o]nit[u]s

   collapsed right ankle

   supraspinatus tendinosis

   sub acromial

   and sub-deltoid bursitis …

   a[s]thma”.  

3. As to when the “disability or medical condition(s) [began] to significantly affect your work capacity”, in response to question 166, the Applicant stated: “2015”[6]. 

   [6]     Exhibit 1, T33, page 203 (page 27 of 33 on the form).

4. There was an assessment of disability support pension eligibility on 24 August 2018[7], further to a consent to disclose medical information by the Applicant dated 16 August 2018[8].  The assessor was a physiotherapist, with the recommendation being: “reject based on current and valid assessment”[9].  The rationale in that recommendation stated[10]: 

   [7]     Exhibit 1, T35, pages 214-215.

   [8]     Exhibit 1, T34, page 213.

   [9]     Exhibit 1, T35, page 214.

   [10]    Exhibit 1, T35, page 215.

   “The assessment of medical eligibility at Date of Claim:  16/18/18, including 13 weeks thereafter.

   Previous Job Capacity assessment (JCA) dated the 5/9/16 assessed coronary artery disease (CAD) and hypertension as permanent and fully diagnosed, treated and stabilised and rated the condition with 5 points of impairment under table 1 – Functions requiring Physical exertion and Stamina. The previous JCA assessed a kidney disorder and diabetes as fully diagnosed, treated and stabilised and included the impairments of the conditions in with the CAD.

   The previous JCA assessed gout as fully diagnosed, treated and stabilised and stated that there was minimal functional impact and rated the condition with 0 points of impairment under Table 3 – Lower Limb Function.

   In the previous JCA obesity was assessed as not fully treated or stabilised due to a lack of medical verification of treatment for the condition.

   Previous MAT assessment dated the 19/3/18 assessed the customer’s previous JCA to be current and valid.

   Medical evidence post MAT

   Medical certificate from Dr Cruz dated the 9/4/18 diagnoses hypertension, CAD, kidney disease, diabetes and obesity, as per previous medical evidence. There is no evidence of functional limitations.

   The certificate also diagnoses a previous right foot fracture with collapse of body to talus. The certificate states that the customer has seen the specialist for casting and graft suggestion. The certificate also diagnoses a left shoulder bursitis, with no evidence of treatment presented.  A medical certificate from Dr Alam dated the 9/7/18 confirms that customer is under the care of Orthopaedics at the Redcliffe Hospital.

   A report from Dr Cruz dated the 5/8/18 confirms orthopaedic care for foot, and HCLA injections into the foot, in adjunction to an ankle brace, with further specialist review planned.

   A report from the specialist Dr Kirshnan, Orthopaedic Surgeon dated the 3/4/18 confirms the recommendation for the HCLA injection, and an ankle brace.  The report states that further review is indicated and possible surgical measure might be indicated in the future.

   Ultrasound report form Dr Erng dated the 21/11/17 confirmed left should bursitis and supraspinatus tendinosis, and AC joint OA.

   Physiotherapist letter dated the 14/3/18 confirms 2 sessions of shoulder treatment and recommends a home exercise program.

   There is no new evidence, which suggests that, the previous findings of the JCA regarding the functional impairments of the customer due to the diabetes, kidney disorder and the CAD, or the gout condition, has worsened.  Therefore the previous JCA findings on functional impairment are assessed as valid and current.

   The obesity is still assessed as not fully treated or stabilised due to a lack of medical information f[r]om weight loss specialists.

   The right foot condition is assessed as not fully treated or stabilised as the customer is currently still under the care of the Orthopaedic Surgeon, and further treatments are indicated. The left shoulder condition is also assessed as not fully treated or stabilised. The previous treatment has included physiotherapy (a few sessions only). There is no shoulder injections, specialist assessments, or ongoing secondary rehabilitation, all of which is considered reasonable treatment to improve this condition.

   The previous JCA is still assessed as current and valid.”

5. By a letter dated 29 September 2018 the claim dated 16 August 2018 was rejected, with that correspondence stating[11]:

   “ … To be eligible for Disability Support Pension, you need to have an impairment of 20 points or more under the Impairment Tables.  These tables are used to assess how much your ability to work is affected by any permanent medical condition that is fully diagnosed, treated and stabilised.  You have been assessed as not having an impairment rating of 20 points or more.” 

   [11]    Exhibit 1, T36, page 217.

6. By a letter dated 5 February 2019 a Review Officer of the Department of Human Services (“Review Officer”) referred to a review of the decision made on 29 September 2018 to reject the claim for disability support pension[12].  The Review Officer stated the following findings[13]:

   “You have the following permanent conditions:  hypertension with coronary artery disease, chronic kidney disease and type 2 diabetes.

   Your right foot, left shoulder and obesity conditions are not assessed as being permanent as they have not been fully treated and stabilised.

   You do not have an impairment rating of 20 points or more.”

   [12]    Exhibit 1, T39, pages 221-226.

   [13]    Exhibit 1, T39, page 222.

7. The Review Officer gave reasons for that decision, finding the conditions of hypertension with coronary artery disease, chronic kidney disease and type 2 diabetes as permanent and assigning ratings under the Impairment Tables[14].  The Review Officer did not consider the right foot, left shoulder and obesity conditions to be “permanent”[15].  As to the right foot condition, the Review Officer referred to the report of Dr Krishnan, orthopaedic surgeon, of 20 April 2018, which referred to pain for the last ten years which was progressively becoming worse and which was being treated by non-operative management with a three month review[16].  As to the left shoulder condition, the Review Officer referred to the physiotherapist report of 14 March 2018 which noted a treatment plan that included a referral to a specialist.  The Review Officer, therefore, found that the condition was fully diagnosed, but not yet fully treated and stabilised[17].  As to obesity the Review Officer referred to a report by Dr Chan, cardiologist, of 7 April 2016, diagnosing morbid obesity and metabolic syndrome.  Noting the limited evidence regarding this condition, the Review Officer concluded that the condition was fully diagnosed but not fully treated and stabilised[18].

   [14]    Exhibit 1, T39, page 223.

   [15]    Exhibit 1, T39, page 224.

   [16]    Exhibit 1, T39, page 224.

   [17]    Exhibit 1, T39, pages 224-225.

   [18]    Exhibit 1, T39, page 225.

8. The SSCSD affirmed the decision under review on 23 April 2019[19]. 

   [19]    Exhibit 1, T2, page 3.

9. On 8 May 2019 the Applicant, by an Application for Review of the Decision (Individual) form, made an application for review of the decision of the SSCSD, stating the following reasons for the application[20]:

   “I have done everything I can about my shoulder and ankle and it just gets ignored.  Why tell me to make a new DSP application if they just keep saying no, only physio can help with my left shoulder 3 times a year.  My ankle can not be fixed.”

   [20]    Exhibit 1, T1, page 2.

   LEGISLATION

10. Section 94 of the Social Security Act 1991 (Cth) (“the Act”) relevantly states:

    “(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

    (d)       the person has turned 16; and …

    Note 2:      For Impairment Tables see subsection 23(1) and sections 26 and 27.             … ”.

11. The Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth) (“the Determination”)[21] states relevantly:

    [21]    F2011L02716, pursuant to the Social Security Act 1991 (Cth), commencing immediately after the commencement of Schedule 3 of the Social Security and other Legislation Amendment Act 2011 (Cth).

    “6          Applying the Tables …

    Permanency of conditions

    (4)For the purposes of paragraph 6(3)(a) a condition is permanent if:

    (a)the condition has been fully diagnosed by an appropriately qualified medical practitioner; and

    (b)the condition has been fully treated; and

    Note:    For fully diagnosed and fully treated see subsection 6(5).

    (c)the condition has been fully stabilised; and

    Note:    For fully stabilised see subsection 6(6).

    (d)the condition is more likely than not, in light of available evidence, to persist for more than 2 years.

    Fully diagnosed and fully treated

    (5)In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated for the purposes of paragraphs 6(4)(a) and (b), the following is to be considered:

    (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.

    Fully stabilised

    (6)For the purposes of paragraph 6(4)(c) and subsection 11(4) a condition is 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.

    Note:    For reasonable treatment see subsection 6(7).”

12. Clause 4 of Schedule 2 of the Social Security (Administration) Act 1999 (Cth) states a relevant assessment period (“relevant period”) of 13 weeks on and following the date of the claim. In Fanning and Secretary, Department of Social Services [2014] AATA 447 per Deputy President Handley, it was relevantly stated at [31]:

    “In my view, in the case of DSP, it is implicit in clause 4 of Schedule 2 of the Administration Act that an applicant must be qualified for DSP on the date of claim or with the period of 13 weeks following.  Evidence, such as medical reports, that come into being after the relevant period may still be relevant, but only in so far as they are referrable to the applicant’s condition during the relevant period.”

13. For present purposes, the relevant period commenced on the 16 August 2018, being the date of claim, and concluded 13 weeks after on 15 November 2018[22].

    [22]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

    CONSIDERATION

14. It is not in contention by the Respondent that the Applicant, in accordance with s 94(1)(a) of the Act, has for the purposes of a disability support pension physical, intellectual or psychiatric impairment[23].  

    [23]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 41.

15. It is also not in contention by the Respondent that the Applicant has met the program of support requirements[24]. 

    [24] Transcript, 26 March 2020, P-8, lines 31-37. The Respondent’s Statement of Issues, Facts and Contentions specifically refer to s 94(2)(aa) of the Act as to program of support requirements and not also or alternatively to s 94(1)(c).

16. Therefore, the issues in contention are:

    (a)Whether the conditions stated by the Applicant at question 165 in the claim form dated 16 August 2018[25] can be considered, in the relevant period[26], fully diagnosed, fully treated and fully stabilised[27]; and

    (b)As to the conditions that can be then considered fully diagnosed, fully treated and fully stabilised, whether 20 points or more can be assigned under the Impairment Tables as to those specific conditions[28]. 

    Whether the Applicant’s conditions can be considered fully diagnosed, treated and stabilised during the relevant period

    [25]    Transcript, 26 March 2020, P-8, lines 35-37.

    [26]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

    [27]    Transcript, 26 March 2020, P-8, lines 13-37.

    [28]    Transcript, 26 March 2020, P-8, lines 26-27.

17. The Applicant gave oral evidence at the hearing on 26 March 2020[29]. 

    [29]    Transcript, 26 March 2020, P-12-43.

    Ankle and shoulder conditions

18. The Applicant in his oral evidence particularly referred to his ankle and shoulder conditions, further to the conditions presently assigned a rating[30], being the conditions of hypertrophic cardiomyopathy, hypertension, chronic kidney disease and diabetes[31].  These two particular conditions are the specific conditions referred to in the application for review filed 8 May 2019[32]. 

    [30]    Transcript, 26 March 2020, P-13, lines 5-40.

    [31]    Transcript, 26 March 2020, P-9, lines 1-30.

    [32]    Exhibit 1, T1, page 2.

19. The Applicant stated that his ankle has been “like this for twenty years”[33] and is swollen each morning[34].  The Applicant gave evidence that all that could be done for his ankle has been done[35]; that is, that there would not be an operation on it now[36].  The Applicant further stated that he had seen the Doctor during the relevant period 16 August 2018 to 15 November 2018[37], who advised that all that could be done with the right ankle was to “lock it” in position[38].  In 2019 the Applicant received non-operative treatment for his ankle, including both an injection and a new brace[39].   The Applicant stated that he commenced wearing the brace in or about November or December 2018[40].  Based on the oral evidence of the Applicant, the Respondent submitted that no impairment rating can be assigned in respect of the ankle, as there was still ongoing treatment to the ankle during and after the relevant period[41].

    [33]    Transcript, 26 March 2020, P-14, line 22.

    [34]    Transcript, 26 March 2020, P-24, line 19.

    [35]    Transcript, 26 March 2020, P-13, lines 5-6.

    [36]    Transcript, 26 March 2020, P-13, lines 27-30.

    [37]    Transcript, 26 March 2020, P-26, lines 38-39; the relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

    [38]    Transcript, 26 March 2020, P-13, line 27.

    [39]    Transcript, 26 March 2020, P-27, lines 1-5.

    [40]    Transcript, 26 March 2020, P-28, lines 9-22.

    [41]    Transcript, 26 March 2020, P-45, lines 28-36.

20. As to the shoulder, the Respondent submitted that at the time of the claim in 2018 and during the relevant period the shoulder was not fully treated, as the enhanced primary care program had not been completed[42].  The Applicant stated that in December 2018 or January 2019 he started to take codeine for the shoulder, as prescribed by Dr Moe[43].  The Applicant stated that there is nothing that a specialist could now do for the shoulder[44].  The Applicant was taken to correspondence from Alex Trevarthen, physiotherapist, from 7 May 2019[45].  That letter is to Dr Sandra Dela Cruz from Alex Trevarthen and relevantly says that the Applicant’s left shoulder has shown a positive response to treatment, with the physiotherapist advising “a continuation of the current management program as required”[46].  Further, it is stated in that letter of 7 May 2019 that the Applicant’s “symptoms are now stable” and the Applicant has advice to return for further treatment if required[47].   The Applicant agreed, that as to the relevant period from August to November 2018, he had not “yet completed all the treatment [the] doctors were suggesting”[48].  The Applicant stated that the treatment and symptoms as to the shoulder were “stable” as at 7 May 2019[49]. 

    [42]    Transcript, 26 March 2020, P-10, lines 42-47, P-11, lines 1-9, and P-22, lines 21-31.

    [43]    Transcript, 26 March 2020, P-26, lines 10-16.

    [44]    Transcript, 26 March 2020, P-25, lines 1-8.

    [45]    Transcript, 26 March 2020, P-24, line 44.

    [46]    Exhibit 3, Letter of Alex Trevarthen, filed 17 May 2019. 

    [47]    Exhibit 3, Letter of Alex Trevarthen, filed 17 May 2019. 

    [48]    Transcript, 26 March 2020, P-37, lines 35-29.

    [49]    Transcript, 26 March 2020, P-37, lines 40-42.

21. Relevantly, the Applicant agreed that, although the ankle and shoulder conditions were identified by the doctors, they weren’t fully treated at the time of the claim[50].  Having regard to the evidence, and noting the Applicant’s specific concession, it is found that the Applicant’s ankle and shoulder conditions were not fully treated and stablised at the date of claim or during the relevant period. 

    [50]    Transcript, 26 March 2020, P-38, lines 1-3.

    Cholesterol and obesity

1. As to cholesterol and obesity, the Respondent submitted that they were conditions that could be assigned a rating under Table 1, but the Respondent contended that those conditions were not fully treated and stabilised during the relevant period[51].  As to obesity, the Respondent stated that the Applicant had not at the time of the claim or in the relevant period from 16 August 2018 to 15 November 2018[52] seen a dietician, with the previous visit to a dietician being in 2017[53].  The Applicant confirmed that his weight had reduced by 4kgs on or about 14 August 2018[54].  Accordingly, the Respondent submitted that the obesity condition was not considered to be fully treated and stabilised during the relevant period.  The Applicant also stated that he had “dropped 20kilos in the last six months” before the date of the hearing[55].  Having regard to the evidence, this condition had not in the relevant period from 16 August 2018 to 15 November 2018[56] been fully treated and stabilised.  

   [51]    Transcript, 26 March 2020, P-10, lines 4-9.

   [52]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   [53]    Transcript, 26 March 2020, P-10, lines 10-13.

   [54]    Transcript, 26 March 2020, P-35, lines 40-42.

   [55]    Transcript, 26 March 2020, P-28, line 39.

   [56]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   Gout

2. As to gout, the Respondent accepted that the gout condition is fully diagnosed, treated and stabilised in the relevant period, but contended that the condition does not contribute to impairment of function[57]. In their submission, the Respondent referred to a Job Capacity Assessment report dated 9 September 2016, which indicated the condition was well-managed through medication[58].  In his oral evidence the Applicant confirmed that the gout condition hadn’t materially changed since the 2016 report and the 2018 claim[59].

   [57]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

   [58]    Transcript, 26 March 2020, P-46, lines 12-24; Exhibit 1, T15, pages 109-116.

   [59]    Transcript, 26 March 2020, P-41, lines 11-34.

3. The Applicant stated that he had started getting gout again in the period before the hearing[60] and that he was continuing to take Allopurinol for it.  Having regard to that evidence, it would be open to find therefore that the condition had not, at the date of the claim or during the relevant period been fully treated and stabilised.  The Respondent’s submission[61] that the gout condition was fully diagnosed, treated and stabilised in the relevant period is found and whether the condition does or does not contribute to the impairment of function is further considered below.

   [60]    Transcript, 26 March 2020, P-41, line 37.

   [61]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

   Sleep apnoea

4. As to obstructive sleep apnoea, the Applicant stated that he has been “sitting up” for five years to sleep, because he can’t lie down[62].  It is not in contention by the Respondent that the Applicant has a diagnosis of obstructive sleep apnoea[63].  However, the Applicant stated that he was waiting on attending another sleep clinic at the time of the hearing[64].  Having regard to the evidence, this condition had not, in the relevant period, been fully treated and stabilised. 

   [62]    Transcript, 26 March 2020, P-24, lines 19-20.

   [63]    Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, paragraph 56. 

   [64]    Transcript, 26 March 2020, P-29, lines 30-34.

   Further conditions

5. The Respondent contends that hypertrophic cardiomyopathy, hypertension, chronic kidney disease, diabetes[65] and gout[66] were fully diagnosed, treated and stabilised in the relevant period from 16 August 2018 to 15 November 2018[67].  The Applicant in the Form signed 16 August 2018[68] also listed the following conditions, further to those referred to above and to those that are not in contention:  “ … coronary artery disease, … heart disease, high cholesterol, metabolic syndrome, tend[o]nit[u]s, supraspinatus tendinosis, sub acromial and sub-deltoid bursitis and a[s]thma”.  The Respondent submitted that, aside from the gout condition[69], none of the further conditions as referred to in the claim of the Applicant, at question 165[70], were accepted as being fully treated and fully stabilised in the relevant period from 16 August 2018 to 15 November 2018[71], even if they might have been fully diagnosed[72].  There is no evidence as to these further conditions specifically to permit a finding that any or all of them were fully diagnosed, treated and stabilised in the relevant period from 16 August 2018 to 15 November 2018[73].

   [65]    Transcript, 26 March 2020, P-9, lines 1-30.

   [66]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

   [67]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   [68]    Exhibit 1, T33, page 203 (page 27 of 33 on the form).

   [69]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

   [70]    Exhibit 1, T33, page 203 (page 27 of 33 on the form).

   [71]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   [72]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 42; Transcript, 26 March 2020, P-8, lines 39-43 and P-10, lines 5-21.

   [73]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   Combined impairment rating

6. As referred to above, the conditions that were fully diagnosed, treated and stabilised in the relevant period 16 August 2018 to 15 November 2018[74] were therefore hypertrophic cardiomyopathy, hypertension, chronic kidney disease, diabetes[75] and gout[76].

   [74]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

   [75]    Transcript, 26 March 2020, P-9, lines 1-30.

   [76]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

7. The Respondent submits that a number of the Applicant’s conditions when “grouped together” can be assigned 10 points under the Impairment Tables, Table 1[77].  That is, that an impairment rating of 10 points[78] under Table 1 is appropriate for all functional impairment arising from the permanent conditions of hypertrophic cardiomyopathy, hypertension, chronic kidney disease and diabetes[79], with no impairment of function submitted as to gout[80]. 

   [77]    Transcript, 26 March 2020, P-8, lines 39-43.

   [78]    The Respondent’s position had been that the corroborating evidence was enough for 5 points, with the Social and Security Division of the Tribunal assigning the 10 points. 

   [79]    Transcript, 26 March 2020, P-9, lines 1-30.

   [80]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

8. Sub-section 10(5) of the Determination provides that when multiple conditions cause a common or combined impairment there should be a single rating assigned under a single table.  The rules for the application of the Impairment Tables provide that an impairment rating can only be assigned if the Applicant’s conditions are permanent and the impairment that results is more likely than not, on the evidence available, to persist for more than two years[81].  To be permanent the condition must have been fully diagnosed by an appropriately qualified medical practitioner, be fully treated and fully stabilised and on the available evidence persist for more than two years[82]. 

   [81]    Section 6(3) of the Determination.

   [82]    Section 6(4) of the Determination.

9. As to 10 points, in accordance with the Determination, the descriptor requires a “moderate functional impact on activities requiring physical exertion or stamina”.  Further, the Determination states that the person is unable to walk far outside the home and needs to drive or get other transport to local shops or community facilities or has difficulty performing day to day household activities[83]. 

   [83]    The Determination, Part 3 – The Tables, Table 1 - Functions requiring Physical Exertion and Stamina.

10. As to the 20 points descriptor, in accordance with the Determination, the person usually experiences symptoms when performing light physical activities and, due to these symptoms, the person is unable to:  walk around a shopping centre or supermarket without assistance; or walk from the carpark into a shopping centre or supermarket without assistance; or use public transport without assistance; or perform light day to day household activities; and has or is likely to have difficulty sustaining work-related tasks of a clerical sedentary or stationary nature for a continuous shift of at least 3 hours[84].  

    [84]    The Determination, Part 3 – The Tables, Table 1 - Functions requiring Physical Exertion and Stamina.

11. The medical evidence, as to the combined conditions, as referred to above, does not specifically indicate that the Applicant usually experiences symptoms when performing light physical activities and due to those symptoms is unable to perform light day-to-day household activities, and is likely to have difficulty sustaining work-related tasks of a sedentary nature for a continuous shift of at least three hours.  The evidence, which was not contested by any cross-examination[85], was that the Applicant’s sister did, in the relevant period, all the shopping, washing and cleaning for the Applicant and took the Applicant to appointments, in that he cannot drive[86].  As the Respondent submitted, there is “no reason to doubt that [the Applicant] needs quite a lot of assistance with all the conditions that [the Applicant] suffers from”[87].  The Respondent further submitted that there was not, additionally, a medical report that corroborates that level of impairment[88].  As the Respondent submits, there is not a specific medical report that corroborates specifically that level of impairment, however the medical reporting when “grouped together”[89] as to the multiple conditions does result in a common or combined impairment that can be assigned 20 points under the Impairment Tables, Table 1.  It is found that the medical evidence when “grouped”, together with the evidence from the Applicant as to the combined conditions, in the relevant period, does indicate that the Applicant usually experiences symptoms when performing light physical activities and due to those symptoms is unable to perform light day-to-day household activities, and is likely to have difficulty sustaining work-related tasks of a sedentary nature for a continuous shift of at least three hours.  Therefore, a finding is made that the Applicant’s fully diagnosed, treated and stabilised conditions (hypertrophic cardiomyopathy, hypertension, chronic kidney disease, diabetes[90] and gout[91]) in the relevant period from 16 August 2018 to 15 November 2018[92], when “grouped together”[93], result in an impairment of 20 or more points under a single impairment table. 

    [85]    Transcript, 26 March 2020, P-49, line 14.

    [86]    See Transcript, 26 March 2020, P-49, lines 14-27.

    [87]    See Transcript, 26 March 2020, P-49, lines 14-27.

    [88]    See Transcript, 26 March 2020, P-49, lines 14-27.

    [89]    Transcript, 26 March 2020, P-8, lines 39-43.

    [90]    Transcript, 26 March 2020, P-9, lines 1-30.

    [91]    Exhibit 2, Respondent’s Statement of Issues, Facts and Contentions, paragraph 45.

    [92]    The relevant period is 13 weeks (3-month period) from 16 August 2018 to 15 November 2018; Transcript P-6 line 35. 

    [93]    Transcript, 26 March 2020, P-8, lines 39-43.

12. It is, therefore, found that the Applicant's impairment is of 20 points or more under the Impairment Tables in accordance with s 94(1)(b) of the Act.

13. It is further found, having regard to all the evidence referred to above, that the Applicant has a continuing inability to work by reason of the relevant conditions in accordance with s 94(1)(c)(i) of the Act.

14. Accordingly, the Applicant’s impairment is 20 points or more under the Impairment Tables. 

    DECISION

15. The decision under review is set aside and the matter is remitted for reconsideration, in accordance with the recommendation[94] that the Applicant’s impairment is 20 points or more under the Impairment Tables.

    [94] Section 43(1)(c)(ii) of the Administrative Appeals Tribunal Act 1975 (Cth).

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

........................[SGD].....................................

Associate

Dated:  1 July 2020

Date of hearing:	26 March 2020
Applicant:	Appeared by telephone
Advocate for the Respondent:	Mr D. McQuinlan