Thomson and Secretary, Department of Social Services (Social services second review) - [2020] AATA 3043

Thomson and Secretary, Department of Social Services (Social services second review) [2020] AATA 3043 (19 August 2020)
Division:GENERAL DIVISION
File Number: 2019/2191
Re:Kelli Thomson
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Senior Member P J Clauson AM
Date:19 August 2020
Place:Brisbane

The reviewable decision is affirmed.
........ ....................[SGD]....................................
Senior Member P J Clauson AM
Catchwords
SOCIAL SECURITY – Disability Support Pension – Whether Applicant has fully diagnosed, treated and stabilised conditions – Whether Applicant has physical, intellectual or psychiatric impairments – Mental health Impairments – Limb function impairments – Spinal impairments – Heart condition impairments – Whether impairments merit 20 points – Decision affirmed.
Legislation
Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
Social Security Act 1991 (Cth)
Social Security Administration Act 1999 (Cth)
Cases
Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922
Campbell and Secretary, Department of Family and Community Services [2004] AATA
Livermore and Secretary, Department of Social Services [2013] AATA 747
Richards and Secretary, Department of Social Services [2018] AATA 2896
Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379
Secondary Materials
Gavin Andrews, Caroline Bell et al,

‘Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for the treatment of panic disorder, social anxiety disorder and generalised anxiety disorder’,

The Royal Australian and New Zealand College of Psychiatrists
(Online Article, 2018) FOR DECISION
Senior Member P J Clauson AM
19 August 2020

On 12 December 2017,[1] Ms Kelli Thomson (‘the Applicant’) lodged a claim for Disability Support Pension (‘DSP’) listing her medical conditions as:
(a)heart disease;
(b)Arthritis in back;
(c)Nerve damage right arm;
(d)Anxiety; and
(e)stomach problems.
[1] Exhibit 1, T43, pages 244 – 251.
To support her claim for DSP, the Applicant provided the following reports:
(a)Medicare Report, Dr Debprosad Bairagi, dated 7 November 2017[2];
(b)A part scan of a Medical Assessment Plan dated 15 July 2017[3]; and
(c)A Logan Hospital Emergency Department Report dated 10 September 2017 (illegible)[4].
[2] Exhibit 1, T37, pages 201 to 202.
[3] Exhibit 1, T35, pages 198 and 199.
[4] Exhibit 1, T35, page 200.
The issue before the Tribunal is whether the Applicant qualified for DSP at the date of her claim, 12 December 2017, or within 13 weeks thereafter, that being up until 12 March 2018.
HISTORY OF THE MATTER
On 12 December 2017, a Disability Support Pension Medical Assessment Recommendation recommended that the Applicant’s condition was manifestly medically ineligible and that the conditions were not fully diagnosed, treated and stabilised. Further, in summary, the Assessor stated:
Medical evidence confirms client to have undergone cardiac surgery . No evidence to confirm client has completed cardiac rehabilitation etc. With Cardiologist management, compliance with prescribed medication/lifestyle modifications, it is anticipated that the client will attain condition stability/improvement. Based on limited available medical evidence, this condition does not appear fully stabilised at this time.[5]
[5] Exhibit 1, T40, page 239 to 240 at page 240; Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011)
On 16 December 2017, the Applicant’s claim for DSP was rejected on the basis that she did not have an Impairment Rating of 20 points or more under the Impairment Tables.[6]
[6] Exhibit 1, T41, page 241.
On 4 January 2018, an Authorised Review Officer (‘ARO’) affirmed the decision of the Department.[7] The ARO, upon review of the DPS Medical Assessment Recommendation and other medical reports provided, made findings of fact in the following terms:
After careful consideration of the evidence, I have made these key findings:
·     Your conditions of coronary heart disease, musculo-skeletal disorder and gynaecological disorder are not accepted as being permanent as they have not been fully treated and stabilised.
·     You do not have an impairment rating.
·     You do not have a continuing inability to work 15 hours per week or more because of your impairment.[8]
[7] Exhibit 1, T43 page 244.
[8] Exhibit 1, T43 page 245.
The Applicant, on 4 January 2019, applied for review to the AAT1 of the decision and the Social Services and Child Support Division of this Tribunal (‘AAT1’) affirmed the decision under review.[9]
[9] Exhibit 1, T2, pages 5 to 10.
In that decision, the AAT1 made the following findings:
(a)the spinal disorder condition was fully diagnosed, treated and stabilised and rated five points under Table 4 - Spinal Function[10];
(b)the coronary heart disease condition was fully diagnosed, treated and stabilised and rated 10 points under Table 1 - Functions Requiring Physical Exertion and Stamina[11]; and
(c)the Applicant did not have a continuing inability to work.[12]
[10] Exhibit 1, T2 page 9.
[11] Exhibit 1, T2 page 9.
[12] Exhibit 1, T2 page 10 at paragraph 33.
On 18 April 2019, the Applicant filed an Application for Second Review of Decision with the General Division of the Administrative Appeals Tribunal (‘this Tribunal’).[13]
[13] Exhibit 1, T1, pages 1 to 4.
The hearing of this matter commenced on 22 October 2019. The Applicant appeared on her own behalf assisted by her friend, Mr Stefan Hassett. The matter was adjourned part heard to a date to be fixed to allow the Applicant to attempt to source specialist medical reports, which she told the Tribunal existed and had been lodged with Centrelink. The Tribunal made a Directions Order on 22 October 2019 that:
On or before 17 December 2019, the Applicant must give to the Tribunal and the Respondent a copy of all medical report(s) on which the Applicant intends to rely.
At a further Directions Hearing on 31 January 2020, the Applicant was granted time until Monday 10 February 2020 to provide evidence from Max Employment confirming that the Applicant was involuntarily exited from the program of support.
The Tribunal notes that the Applicant sent the following documentation to the Tribunal following the adjourned hearing:
(a)Exhibit 9 - Copies of medical reports and Certificates relating to the Applicant, all of which were photocopies of the material within the Section 37 documents already in existence. These additional photocopies were received on 16 December 2019;
(b)Exhibit 10 - Correspondence from the Applicant in the form of further submissions and self-reporting materials which contained a request seeking the matter be completed on the papers when received on 17 December 2019;
(c)Exhibit 11 - Email correspondence from the Applicant received on 27 December 2019 providing self-reporting of her family’s medical history;
(d)Exhibit 12 - Photocopy of an Australian Disability Parking Permit issued to the Applicant and expiring on 12 December 2024, received on 7 January 2020;
(e)Exhibit 13 - Email from the Applicant received on 7 January 2020 confirming that Max Employment will not provide her with a copy of her file.
LEGISLATIVE FRAMEWORK
Section 94 of the Social Security Act1991 (Cth) (‘the Act’) prescribes the criteria necessary to qualify for DSP. For present purposes, the three primary requirements are that the Applicant has a physical, intellectual or psychiatric impairment; that the Applicant’s impairment is of 20 points or more under the Impairment Tables; and that the Applicant has a continuing inability to work.
The Social Security (Administration) Act1999 (Cth) makes it clear that qualification for DSP and assessment of the relevant Impairment Ratings are to be determined as at the date of claim, in this case 12 December 2017. There is, however, an exception where the person is not qualified on that date but ‘becomes qualified’ within 13 weeks of lodging a claim, in which case the start date for DSP is the date the person becomes qualified.[14] Therefore, the Relevant Period for considering whether the Applicant qualified for DSP is between 12 December 2017 and 12 March 2018 (‘the Qualification Period’).
[14] See sections 41 and 42 and clause 3 and clause 4(1), Schedule 2, Part 2 of the Social Security (Administration) Act 1999 (Cth).
It is well-established (and, indeed, mandatory in a legislative sense) that the Applicant’s condition, and thus assessment of attributable impairment points, must be undertaken as at the Relevant Period. This has been made clear by the Tribunal in Bobera and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] AATA 922 at para. [34]:
The Tribunal must look at the situation as it was, and the evidence that was available, at the time of the application for DSP (and the subsequent 13 weeks). Any subsequent evolution of a particular condition might be relevant to any weight the Tribunal places on competing prognostications or on an assessment of the quality of the medical reports provided (most notably where evidence indicates that the creator of a medical report may not have had access to all relevant information or may not have turned his or her mind to all the relevant issues). This point is important as it is quite frequently the case that appeals on DSP decisions arrive at this Tribunal 12 or more months after the initial DSP application was refused. In many instances, the natural course of illnesses or injuries has then become more obvious, thereby confounding the professional opinions honestly proffered by thorough and conscientious treating doctors. If a medical condition has progressed since the time of the original DSP application, then it is up to the applicant to make a new DSP application. It is not open in law for this Tribunal to use any evidence of such progression to directly award a DSP because of those changed circumstances. (Tribunal’s underlining)
The Impairment Tables are contained in the Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination2011 (‘the Determination’),[15] a legislative instrument made under the Act.[16] 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.[17] The impairment of a person is to be assessed on the basis of what they can, or could do, and not on what they choose to do or what others do for them.[18]
[15] Department of Social Services, Social Security (Tables for the Assessment of Work-Related Impairment for Disability Support Pension) Determination 2011 (F2011L02716, 6 December 2011) (‘The Determination’).
[16] See section 26(1) of the Act.
[17] See section 5(2) of the Determination.
[18] See section 6(1) of the Determination.
Under the rules for applying the Impairment Tables, an Impairment Rating can only be assigned if the person’s condition causing the impairment is ‘permanent’ and the impairment that results from that condition is more likely than not, in light of the available evidence, to persist for more than two years.[19] In order for a condition to be considered ‘permanent’, it must have been fully diagnosed by an appropriately qualified medical practitioner; been fully treated; been fully stabilised; and more likely than not, in light of available evidence, to persist for more than two years.[20]
[19] See section 6(3) of the Determination.
[20] See section 6(4) of the Determination.
In determining whether a condition has been fully diagnosed by an appropriately qualified medical practitioner and whether it has been fully treated, the following facts are to be considered:
(a)whether there is corroborating evidence of the condition;
(b)what treatment or rehabilitation has occurred in relation to the condition; and
(c)whether treatment is continuing or is planned in the next two years.[21]
[21] See section 6(5) of the Determination.
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 two years; or
(b)the person has not undertaken reasonable treatment for the condition because:
(i)significant functional improvement to a level enabling the person to undertake work in the next two 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.[22]
[22] See section 6(6) of the Determination.
‘Reasonable treatment’ is treatment that:
(a)is available at a location reasonably accessible to the person;
(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 person.[23]
[23] See section 6(7) of the Determination.
An Impairment Rating can only be assigned in accordance with the Rating Points in each Table. A rating cannot be assigned between two consecutive Impairment Ratings. If an impairment is considered as falling between two 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. A rating cannot be assigned in excess of the maximum rating specified in each Table.[24]
[24] See section 11(1) of the Determination.
In respect of the requirement that the Applicant have a continuing inability to work, all the criteria in section 94(2) of the Act need to be satisfied.
ISSUES FOR THE TRIBUNAL
The issues for this Tribunal to consider are:
(a)whether, during the Relevant Period, the Applicant had a physical, intellectual or psychiatric condition/s which was or were fully diagnosed, fully treated and fully stabilised;
(b)whether the condition/s warranted an Impairment Rating of 20 points or more under the Impairment Tables, and if so;
(c)whether the Applicant has a severe impairment of 20 points or more under a single Impairment Table, or if not, whether the Applicant completed a program of support; and
(d)whether the Applicant has a continuing inability to work.
CONSIDERATION
Did the Applicant have an impairment that was permanent and attracted 20 points or more under the Impairment Tables?
The Respondent accepted that the Applicant had impairments for the purposes of section 94(1)(a) of the Act. However, the Respondent contended that the Applicant’s impairments did not attract a rating of 20 points or more under the Impairment Tables and the Applicant did not satisfy section 94(1)(b) or (c) of the Act.[25]
[25] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 9.
The Tribunal accepts that the Applicant had impairments for the purpose of section 94(1)(a) of the Act. The Tribunal proposes to deal with the calculation of Impairment Points by reference to each of the Applicant’s various medical conditions.
Psychological Condition - Table 5 - Mental Health Function
In a Job Capacity Report dated 20 April 2010, the Applicant reported symptoms of anxiety/depression which had been present with her for the majority of her adult life. She reported that the severity of her condition had increased in the last four to five months due to the death of her father, the loss of her employment, financial stress and homelessness. The symptoms were noted as dysphoric mood, poor sleep, generalised anxiety and a reduced appetite. It was also noted that she reported a history of intermittent antidepressant use, and had maintained contact with a Psychologist in the late 1990s. And it was further noted that she was not currently in receipt of treatment and was last prescribed antidepressant medication in 2009.[26]
[26] Exhibit 1, T4, page 57.
Dr McMillan, on 12 May 2011, reported on a Mental Health Care Plan that the Applicant was to be considered for diagnostic assessment, interpersonal therapy and Cognitive Behaviour Therapy (‘CBT’).[27]
[27] Exhibit 1, T11 page 107.
The Applicant, in the Employment Services Assessment Report dated 22 November 2017[28], reported that she was suffering from anxiety and was on medication and had been referred to a Psychologist, but had not yet attended.[29]
[28] Exhibit 1, T38 at page 206.
[29] Ibid at page 207.
The Tribunal does not have before it any medical evidence which corroborates that a diagnosis for anxiety or depression had been made according to the requirement in the introduction to Table 5 that the diagnosis of a condition such as this must be made by an appropriately qualified medical practitioner (including a Psychiatrist, with evidence from a Clinical Psychologist if the diagnosis has not been made by a Psychiatrist). There is a requirement that there is corroborating evidence of the person’s impairment before the Tribunal before an assessment may be made.
The Secretary, in their Statement of Issues, Facts and Contentions, has referred to the Royal Australian and New Zealand College of Psychiatrists Clinical Practice Guidelines[30] for the treatment of Generalised Anxiety Disorder (‘GAD’) provides that for patients with mild Generalised Anxiety Disorder, Cognitive Behaviour Therapy (‘CBT’), being either 8-12 sessions of face-to-face CBT, provided by an experienced clinician or a program of guided digital CBT for GAD alone may be adequate. However, for moderate or severe GAD which persists despite counselling, pharmacological treatment or a combination of psychological and pharmacological treatment is required.
[30] Gavin Andrews, Caroline Bell et al, ‘Royal Australian and New Zealand College of Psychiatrists clinical practice guidelines for the treatment of panic disorder, social anxiety disorder and generalised anxiety disorder’, The Royal Australian and New Zealand College of Psychiatrists (Online Article, 2018)
The Tribunal is in agreeance with the Secretary that the Applicant has not produced any evidence to indicate that she had undertaken reasonable treatment for the condition, including ongoing counselling, CBT, specialist care or review or medical stabilisation or alternative treatment and that therefore the condition was not fully treated and stabilised.
The Tribunal finds that as there is a lack of corroborative evidence of functional impact resulting from the psychological condition as at the Qualification Period, it is unable to rate the impact of the psychological condition under the Determination.
Condition 3 - Spinal Disorder - Table 4 - Spinal Function
The Applicant’s spinal condition is first noted in the material before the Tribunal in a Job Capacity Assessment (’JCA’) Report dated 20 April 2010[31] where it was noted that she suffered from lower back pain following the birth of her first son. It was further noted that the pain was of a chronic nature and was aggravated by strenuous physical activity, prolonged sitting and heavy lifting, however, the Applicant was not in receipt of medical treatment. She claims that she self-managed the symptoms ‘via rest and non-prescription analgesic medication’.[32]
[31] Exhibit 1, T4, pages 56 to 61.
[32] Exhibit 1, T4, page 57.

The Tribunal notes that the condition is reported on by Dr Kavur, the Applicant’s General Practitioner, in a report of 23 February 2011[33] and notes that Dr Kavur states that the diagnosis is one of ‘chronic lower back pain’ and that the Applicant had symptoms for 14 years and that x-rays on 25 May 2010 disclosed ‘mild degenerative change facet joints L4/L5, L5/S1’.[34] The Tribunal accepts that the condition was fully diagnosed at the Relevant Period.
[33] Exhibit 1, T7, page 65 at page 66.
[34] Exhibit 1, T7, page 66.
In another JCA Report dated 30 March 2011[35], the JCA noted:
Dr Kavur stated in his medical report that he wished to discuss his report with Centrelink. In a telephone discussion with the Assessor on the 24/02/2011 he stated that the client’s symptoms are not consistent with x-ray results. He also stated that he had offered to refer the client for a specialist opinion; however, the client had yet to make her decision.
[35] Exhibit 1, T9, page 84.
A JCA almost over one month later, on 28 April 2011, reported that the Applicant had been in receipt of physiotherapy in the past and had been prescribed Mobic for her current symptoms. It was noted that Dr Kavur stated that:
The client’s compliance with medication is uncertain.
The report also noted the observation by Dr Kavur that the Applicant’s symptoms were inconsistent with the x-ray findings and that he would like the Applicant to obtain a specialist’s assessment. The Applicant at that time had yet to make a decision in that regard.[36]
[36] Exhibit 1, T10, page 95.
Dr Yuen, General Practitioner, in a Centrelink Medical Report dated 18 November 2014, remarked on the Applicant’s spinal condition[37] described therein as ‘Condition 1’ that the diagnosis of the condition was made in 2011 and that it was ‘presumptive’ and that further investigation and tests were planned to confirm the diagnosis. Previous treatment was listed as analgesia and that no treatment for the condition was then current. Dr Yuen confirmed that the Applicant had reduced endurance, had difficulty getting up from the ground and her children helped out around the house and that her symptoms over the next two years would cause her functional capacity to fluctuate. It was noted also that no specialist assessment had been arranged at that time.
[37] Exhibit 1, T20, page 147 at pages 150 to 152.
The Applicant was noted to have advised the AAT1 hearing that she had not seen a specialist for her back condition since 2011 and did not need to.[38] The Applicant’s General Practitioner, Dr Rayner, in evidence to the AAT1, told the Tribunal that he had reviewed the Applicant three times since 2017, but had not addressed her back pain as her other conditions had taken priority.
[38] Exhibit 1, T2 at page 8.
The evidence before the Tribunal is of such a nature that it certainly gives rise to serious doubt as to the severity of the Applicant’s spinal condition and whether it has, in fact, been fully diagnosed, fully treated and fully stabilised.
The evidence of Dr Kavur in his conversation with the JCA stated that the x-ray findings did not accord with the client’s symptoms and the evidence that he had suggested referring the Applicant to an orthopaedic specialist is inclined to raise doubts that the Applicant’s spinal condition had been fully diagnosed, fully treated and stabilised in 2011. Further, the Applicant’s evidence to the AAT1 that she had not seen a specialist about her back condition since 2011 because ‘she did not need to’ also tends to confound the view that the condition was so debilitating that its symptoms were creating a functional impact on the Applicant’s capabilities.
The Tribunal also noted that when the Applicant underwent a functional capacity evaluation on 11 March 2011, the Applicant reported that:
(a)she could self-care, cook, clean and iron;
(b)she required some assistance with washing, bedmaking and shopping;
(c)she was unable to garden or dance; and
(d)she could drive and sit respectively for up to 30 minutes, walk up to 200 metres, stand for 15 minutes, lift and carry less than five kilograms and could climb stairs with rail assistance.[39]
[39] Exhibit 1, T8 at page 76.
However, the FCA was unable to comment on the Applicant’s work capacity as the Applicant was unwilling to participate in major aspects of the evaluation. The FCA noted that the Applicant was able to sit up for 80 minutes during the evaluation.[40] This Tribunal also observed that the Applicant was able to remain seated and participate for the duration of the hearing.
[40] Exhibit 1, T8 at page 79.
Although Dr Yuen in his Medical Certificate of 4 August 2014 noted low back pain[41] and on 18 November 2014 noted ‘decreased endurance, can’t get up from the ground, children help out at home’[42], that Certificate is not inconsistent with the Applicant’s self-reported issues throughout the period since she first consulted Dr Kavur. What is clearly evident to the Tribunal is that since the Applicant first consulted Dr Kavur, she had not consulted an orthopaedic specialist for her spinal problem either up to or during the Qualification Period.
[41] Exhibit 1, T18 at page 138.
[42] Exhibit 1, T10 at page 152.
Dr Kavur offered to refer the Applicant to an orthopaedic specialist for assessment and this had not been taken up by the Applicant. The Tribunal agrees with the Secretary that it would not be an unreasonable step in the Applicant’s treatment for her spinal condition to engage with a specialist Orthopaedic Surgeon or Pain Specialist to try and assist in the alleviation of her back pain symptoms.
The Tribunal has no expert evidence from any relevant specialist before it of a corroborative nature to allow the Tribunal to conclude that the condition had been fully treated and stabilised. The Tribunal finds that the condition is therefore unable to be assessed and rated under Impairment Table 4 - Spinal Function.
Wrist Pain - Table 2 - Upper Limb Function
The Applicant has listed a condition of the wrist in her Application for DSP and a Medical Certificate compiled by Dr Albane Yuen on 18 November 2014[43] lists the Applicant’s wrist condition as ‘Condition 2’.[44] That report notes that she fell on her arm and was suffering constant pain. Dr Yuen noted that the impact of the injury on her ability to function was:
(a)can’t push body off chairs; and
(b)can’t use broom.[45]
[43] Exhibit 1, T20, page 147 to 157.
[44] Ibid at 155.
[45] Ibid at 155.
The impairment descriptors relevant to this condition are found on Table 2 of the impairment tables. They are:

Points

Descriptors

0

There is no functional impact on activities using hands or arms.

(1)        The person can pick up, handle, manipulate and use most objects encountered on a daily basis without difficulty.

5

There is a mild functional impact on activities using hands or arms.

(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.

Dr Yuen, at page 8 of that Certificate,[46] noted that he had referred the Applicant to Dr Robinson, an Orthopaedic Surgeon, and Dr Geffen, a Pain Specialist. He also made a notation that there was no correspondence from these specialists regarding this condition and that a future planned treatment was to be ‘review by specialist’. As at the Qualification Period, there is no evidence before the Tribunal indicating that any specialist review has been undertaken. There is, likewise, no evidence before the Tribunal relating to this condition, thus indicating that any reasonable specialist medical opinions have not been sought, nor is there any evidence of relevant medical imaging procedures, surgical intervention or treatment by a Pain Specialist or associated therapy such as physiotherapy available to assist the Tribunal in assessing this condition for rating purposes under the descriptors for Table 2 of the Determination. The Tribunal decides therefore that the condition is diagnosed but not fully treated and stabilised at the Qualification Period. The only evidence relating to the condition’s impact upon the Applicant’s function as noted by Dr Yuen is such that it does not equate to a mild functional impact under the descriptors for Table 2 and thus, in any event, no points can be assigned to this condition.
[46] Exhibit 1, T20, page 154.
Coronary Heart Disease - Table 1 - Functions Requiring Physical Exertion and Stamina
The Applicant has suffered from coronary heart disease which, following a myocardial infarction in 2016, was treated surgically by a triple bypass surgical procedure. The Secretary acknowledges that the Applicant underwent surgery for the condition.[47] However, they contend that at the qualifying period the condition was not permanent based on the medical evidence.
[47] Exhibit 2, Secretary’s Statement of Issues, Facts and Contentions, page 13 at paragraph 4.56.
The Applicant’s General Practitioner, Dr Albane Yuen, provided a Medical Certificate to Centrelink on 18 August 2016[48] in which he noted that the Applicant’s myocardial infarction condition and that it was temporary and that prognosis for the condition was described as ‘uncertain’. Another later Medical Certificate dated 7 November 2017 by Dr Debprosad Bairagi noted that the Applicant had coronary artery bypass surgery and lower back pain and that the condition was likely to affect the Applicant’s ability to work or study for between 13 and 24 months. It is noted that in a later report by Dr Rayner, General Practitioner, dated 26 April 2018, that the prognosis for the cardiac bypass surgery was ‘less than three months’.[49]
[48] Exhibit 1, T32 at page 188.
[49] Exhibit 1, T44 at page 252.
The Applicant told this Tribunal that she has difficulty walking and suffers shortness of breath. When shopping, she leans on the trolley to catch her breath. She states that she could not drive for half an hour but did drive from Beenleigh to Everton Park to meet her colleague who drove her into the hearing. She estimated that the trip from Beenleigh to Everton Park took about an hour of driving. She told the Tribunal that she has difficulty walking up stairs and on long inclines. She now has help to mow her lawn but cannot garden or play on the ground with her grandchild. She tried public transport but claimed it was a bad experience. She also stated in reply to the question whether she could carry out sedentary work for three hours per day, that she did not know if she could. She did confirm to this Tribunal that she did her housework and could do her washing and hang it out and gather it in.
On 22 November 2017, the Applicant undertook an Employment Services Assessment (‘ESA’)[50] which in that report the Applicant told the Assessor, inter alia, that she was not sure what the plans for her ongoing cardiac care were, but that she was seeing Cardiologists regularly. It is noted that no Cardiologist’s reports were produced by the Applicant to this Tribunal pursuant to the Direction made on 22 October 2019 relating to the treatment she had received, or was planned to receive, for her cardiac condition.
[50] Exhibit 1, T38 at page 204.
The Applicant had told this Tribunal that she had given all the specialists reports relating to her cardiac condition to Centrelink, however, it is noted that in the material she sent to the Tribunal on 16 December 2019[51], the Applicant claimed that:
I have enclosed as many medical papers that I could find around home (sic) as most of my medical records I have (sic) conveniently been taken and obviously destroyed by the one person I trusted.
I can not continue having doctors or medical information tampered with so I ask that the papers I found be taken into consideration as evidence.
[51] Exhibit 10.
This Tribunal is also faced with the difficulty of considering the Applicant’s cardiac condition in a circumstance where the Applicant, in her own evidence, has stated that she had not undertaken the Cardiac Rehabilitation Program following her bypass surgery and thus this Tribunal has no reports before it to corroborate any improvement or otherwise in the Applicant’s cardiac condition as at the Qualification Period.
The Applicant, in addition to being referred to the Cardiac Rehabilitation Program, was also advised to undertake certain lifestyle modifications to assist her in the management of her cardiac condition, among which principally ceasing to smoke was paramount. Given the nature of her condition, the Tribunal considers this action to be a not unreasonable step for the Applicant to have taken. There is no unreasonable financial impost, in fact it is an action which is financially positive and it does not need to be sought through difficult-to-reach sources and is thus readily available. It is also likely to assist in an improvement to her condition and carries little risk to the person. In the matter of Richards and Secretary, Department of Social Services [2018] AATA 2896, this Tribunal found that an applicant had a fully treat and stabilised heart condition, due in part, to his efforts to reduce his cigarette intake and seeking counselling support and behavioural therapy to address his nicotine addiction. Conversely, there is no evidence that the Applicant here has made any attempts to seek assistance readily available to overcome the admittedly addictive nature of this habit.
The Tribunal has before it various reports in the materials that express the importance of giving up smoking to the improved prognosis of the Applicant’s cardiac condition.
The Applicant’s Medical Discharge Summary from Logan Hospital discharging her to the Princess Alexandra Hospital on 15 August 2016 notes, inter alia, that the Applicant is a smoker.[52] The Applicant’s Discharge Summary from the Princess Alexandra Hospital dated 15 August 2016[53] noted that the Applicant had been admitted ‘for medical therapy and smoking cessation’[54] and that she was, in addition to her other pharmacological treatments, being treated with nicotine (Nicabate P 21 milligrams/24 hour patches for 16 hours per day to treat her nicotine withdrawal).[55]
[52] Exhibit 1, T30, page 180.
[53] Exhibit 1, T31, page 182.
[54] Ibid at page 182.
[55] Ibid at page 183.
This Discharge Summary noted in the Recommendations to her General Practitioner that:
She would benefit greatly from risk factor modification, mainly smoking cessation. Please reinforce this and support Kelli in this endeavour.
The evidence before this Tribunal in relation to this aspect of the Applicant’s treatment for her cardiac condition is that no action has been taken or assistance sought in line with the serious recommendations of her medical advisors. The Tribunal finds therefore that, in view of the evidence available at the Qualifying Period, it is unable to find that the Applicant’s coronary heart disease condition was fully treated and fully stabilised. Any impairments flowing from her coronary heart disease condition are unsupported by such independent corroborative evidence sufficient as to allow those impairments to be rated under Table 1 at the Relevant Period. The condition therefore attracts zero points under Table 1 - Functions Requiring Physical Exertion and Stamina.
Other Conditions –
Abdominal Pain
The Applicant, in her Application for DSP, listed ‘stomach problems’ as one of the conditions from which she suffered.[56]
[56] Exhibit 1, T39, page 209 to 238 at 234.
In a document dated 6 August 2018 and denoted as ‘Final Report’ created by Julie Hadzic RMO[57], it is noted that the Applicant presented with:
Lower abdo pain with nausea and vomiting. Unable to tolerate diet.
[57] Exhibit 1, T45 at page 253.
The assessment of the Applicant’s condition was:
She was seen by both Gynaecology and Surgical Teams for abdominal pain. She has an umbilical hernia that was reducible. It will likely need repair prior to gynaecology surgery and Surgeons have referred her to their Outpatient Clinic for planning of surgery. It is better to have the hernia repaired semi-electively given her comorbidities.[58]
[58] Ibid at page 253.
The Tribunal notes that the Applicant underwent a colonoscopy examination at the Mater Hospital on 24 September 2018[59] during which a polyp was removed. It is noted that both reports above relate to procedures undergone by the Applicant approximately eight and nine months respectively outside of the Qualification Period relating to this claim. It is the view of this Tribunal that the Applicant’s stomach problems were still under investigation outside of the Qualification Period and thus could not be characterised as fully treated and stabilised as at the Qualification Period. There is also no corroborative evidence relevant to this condition as at the Qualification Period relating to any functional impairment from this condition which would allow a rating to be assigned under the Tables of the Determination.
[59] Exhibit 1, T47, page 255.
Gynaecological Condition
The Tribunal notes that Dr Yuen, General Practitioner, in a Certificate for Centrelink dated 12 February 2016 reported a diagnosis of ‘CIN3’ described as ‘asymptomatic’ in symptoms and with current treatment as ‘Seeing Gynaecologist’.[60] Accordingly, the Tribunal accepts that at the Qualification Period this condition was fully diagnosed, however, the Tribunal needs to be satisfied that this condition was also fully treated and stabilised at the Qualification Period before any Impairment Rating can be assessed and applied to it.
[60] Exhibit 1, T28, pages 172 to 173 at 173.
The report of Julie Hadzic[61] referred to previously herein references the fact that some eight months after the end of the Qualification Period, gynaecological surgery was being planned for the treatment of this condition. Further, the Applicant underwent a total laparoscopic hysterectomy on 9 October 2018 which was some 10 months after the end of the Qualification Period.[62] The Tribunal is satisfied that this condition was thus not fully treated and fully stabilised as at the Qualification Period.
[61] Ibid.
[62] Exhibit 1, T49, page 257.
The Tribunal has considered the case law relevant to the situations where surgical conditions are proposed for or have been conducted upon Applicants for the treatment of conditions diagnosed as at the Qualification Period but following the end of the Qualification Period.
The case law is consistently clear that in matters where this is so, a condition cannot be considered to be fully treated and fully stabilised as at the Qualification Period. It was held in the matter of Toma and Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2013] AATA 379 at paragraphs [34] and [35] by Member Breen that:
Given that the surgery for the right-sided hernia took place after the DSP Qualifying Period, it is clear that at the time of Mr Toma’s DSP claim, this condition had not been fully treated. As of October 2012, Mr Toma had not had surgery for his left-sided hernia. Therefore, Mr Toma’s left-sided hernia had also not been fully treated at the time of his DSP claim.
Again, in the case of Campbell and Secretary, Department of Family and Community Services [2004] AATA 1201, it was found by Member Hunt at paragraph [13] that:
I am satisfied that at 3 September 2003, Mr Campbell could not demonstrate satisfaction of the criterion that he had permanent conditions of injuries warranting an Impairment Rating of 20 points under the Tables. It follows that he cannot satisfy section 94(1)(b). He cannot satisfy this requirement until his condition has been fully investigated, treated and stabilised. As he is awaiting surgery, the injury or injuries requiring surgery have not been stabilised and, it follows, cannot be found to be permanent.

And again in the case of Livermore and Secretary, Department of Social Services [2013] AATA 747, Senior Member Toohey found at paragraph [20] that:
As Mr Livermore was still awaiting surgery during the Relevant Period, his back condition was not fully treated and stabilised during that time, and it cannot be given a rating on the Impairment Tables.
The Tribunal finds that there is no corroborative evidence of functional impact as at the Qualification Period which would enable it to assign ratings regarding functional impact as at the Qualification Period to the Applicant’s abdominal pain condition and gynaecological condition.
OVERALL IMPAIRMENT RATING
Summary of Impairment Points
Spinal Condition - Table 4 - Spinal Function - Fully diagnosed, but not fully treated and fully stabilised. No rating assignable. Zero points.
Wrist Condition - Table 2 - Upper Limb Function - Fully diagnosed, but not fully treated and fully stabilised. No rating assignable. Zero points.
Coronary Heart Disease - Table 1 - Functions Requiring Physical Exertion and Stamina - Fully diagnosed, but not fully treated and fully stabilised. Zero points.
Abdominal Pain - Not fully diagnosed or fully treated or fully stabilised. Condition still being investigated outside of the Qualification Period. Therefore, incapable of receiving a rating under the Determination as at the Qualification Period.
Gynaecological Condition - Table 10 - Digestive and Reproductive Function - Fully diagnosed, but not fully treated or stabilised as at the Qualification Period. Zero points.
As the Applicant does not have a total of 20 or more Impairment Points under the Tables, she does not satisfy the requirement under Section 94(1)(b) of the Act (the second of the requirements for DSP). She therefore does not qualify for DSP via this Application.
Continuing inability to work
Given that the Applicant does not reach 20 points or more at the Relevant Period, it is not necessary for this Tribunal to consider whether she satisfies the remaining criteria for DSP.
ADDITIONAL OBSERVATION
The Applicant has failed to reach 20 points or more via this Application. The Tribunal notes that her conditions may have worsened or become fully diagnosed, treated and stabilised since the Relevant Period for this DSP claim. The Applicant may benefit from lodging a fresh Application for DSP with additional and more comprehensive and recent medical evidence relating to her conditions.
CONCLUSION
The Applicant does not qualify for DSP because her conditions cannot be assigned any Impairment Points during the Relevant Period.
Accordingly, the decision under review is affirmed.

I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member P J Clauson AM

.................................[SGD].......................................
Associate
Dated: 19 August 2020

Date(s) of hearing: 22 October 2019

Date final submissions received: 28 February 2020

Advocate for the Applicant: Stefan Hassett

Solicitors for the Respondent: M Brazier, Department of Human Services

Date(s) of hearing:	22 October 2019
Date final submissions received:	28 February 2020
Advocate for the Applicant:	Stefan Hassett
Solicitors for the Respondent:	M Brazier, Department of Human Services