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

Tongue and Secretary, Department of Social Services (Social services second review) [2017] AATA 2584 (20 November 2017)
Division:GENERAL DIVISION
File Number: 2017/1203
Re:Anthony Tongue
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D K Grigg
Date:20 November 2017
Place:Brisbane

The Tribunal affirms the decision under review.

........................................................................
Member D K Grigg

CATCHWORDS

SOCIAL SECURITY – disability support pension – cancellation – whether 20 points or more under the impairment tables during the relevant period – decision under review affirmed.

LEGISLATION

Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)

Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)

REASONS FOR DECISION

Member D K Grigg
20 November 2017

INTRODUCTION AND CLAIMS HISTORY

Mr Tongue has been a recipient of the Disability Support Pension (“DSP”) since 11 September 2003 in relation to a hypertrophic cardiomyopathy and atrial fibrillation impairments.[1]
[1] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 18 September 2017, para 2.
In April 2016 Mr Tongue enquired with the Department of Human Services (“Centrelink”) about unlimited portability for his DSP.[2] Unlimited portability allows recipients of DSP to travel overseas for an indefinite period while still receiving the DSP.
[2] Exhibit 1, T Documents, T18, pages 128 – 129, letter from Centrelink to Mr Tongue dated 7 April 2016.
In order to assess whether Mr Tongue was eligible for unlimited portability of his DSP, Centrelink required Mr Tongue to provide an updated work capacity form, undertake a medical review and a Job Capacity Assessment (“JCA”).
Mr Tongue provided the work capacity information to Centrelink on 20 April 2016[3] and was advised that he was scheduled for a JCA on 2 June 2016.[4]
[3] Exhibit 1, T Documents, T19, pages 130 – 138, Work capacity form received by Centrelink on 20 April 2016.
[4] Exhibit 1, T Documents, T20, pages 139 – 143, Centrelink notice of appointment for a JCA dated 23 May 2016.
After the medical review and JCA, Centrelink determined, on 14 July 2016 that Mr Tongue was no longer qualified to receive DSP and as a result, it was cancelled.[5]
[5] Exhibit 1, T Documents, T27, pages 161 – 162, Letter from Centrelink to Mr Tongue dated 14 July 2016.
Mr Tongue sought a review of Centrelink’s decision to cancel his DSP by an Authorised Review Officer (“ARO”). The subsequent review by the ARO was unsuccessful on the grounds that Mr Tongue’s medical conditions did not attract 20 points or more under the Impairment Tables.[6]
[6] Exhibit 1, T Documents, T29, pages 166 – 174, Decision of ARO and Notes dated 15 September 2016.
On 1 November 2016, Mr Tongue lodged an application for review with the Social Services and Child Support Division (“SSCSD”) of this Tribunal.[7] The SSCSD rejected Mr Tongue’s claim and affirmed the ARO’s decision on 17 January 2017.[8]
[7] Exhibit 1, T Documents, T34, page 188, Letter advising of appeal to AAT1 dated 1 November 2016.
[8] Exhibit 1, T Documents, T2, pages 3 – 9, SSCSD’s Decision and Reasons for Decision dated 17 January 2017.
Mr Tongue has sought a review of the SSCSD’s decision by this Tribunal.[9]
[9] Exhibit 1, T Documents, T1, pages 1 – 2, Mr Tongue’s Application for Review dated 27 February 2017.
ISSUES FOR DETERMINATION
The legislation relevant to this matter is contained in the Social Security Act 1991 (Cth) (the “Act”).
Section 94(1) of the Act relevantly prescribes that to qualify for DSP the following requirements must be met (“Section 94 Requirements”):-
(a)Mr Tongue must have a physical, intellectual or psychiatric impairment;
(b)Mr Tongue’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”).[10]
(c)Mr Tongue must have a continuing inability to work.
[10] A legislative instrument made under the Act: see s 26(1).
Pursuant to section 80 of the Social Security (Administration) Act 1999 (Cth) (“the Administration Act”) the Secretary may cancel a person’s social security payment if that person was not qualified for the payment.
A decision made under section 80 is an “adverse determination” within the meaning of section 118(13) of the Administration Act, which provides that such a decision “takes effect on the day on which it is made”.[11]
[11] See also Freeman v Secretary, Department of Social Security [1988] FCA 294; (1988) 19 FCR 342.
Therefore, to qualify for the DSP, Mr Tongue must have met the Section 94 Requirements at the date of the decision to cancel the DSP, that is, on 14 July 2016 (“Qualification Date”).
It is important to keep in mind that medical evidence concerning the functional impact of Mr Tongue’s impairments after the Qualification Date can be considered if it “casts light on” the functional impact of the impairment/s as at the Qualification Date.[12]
DID MR TONGUE HAVE A PHYSICAL, INTELLECTUAL OR PSYCHIATRIC IMPAIRMENT/S DURING THE QUALIFICATION DATE: SECTION 94(1)(A)?
[12] 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”.[13]
Mr Tongue’s Medical Conditions
[13] Determination, s 3.
Cardiomyopathy/Atrial Fibrillation Condition (“Heart Condition”)
In January 2003 Dr Lyndria Smith, General Practitioner, reported that Mr Tongue:
(a)had hypertrophic cardiomyopathy and that:[14]
[14] Exhibit 1, T Documents, T4, page 52, Medical Certificate of Dr Smith dated 25 January 2003.
(i)it was permanent and likely to persist;
(ii)caused Mr Tongue shortness of breath and weakness; and
(b)had atrial fibrillation and that:[15]
(i)it was permanent and likely to persist;
(ii)was causing palpitations; and
(c)had been taking multiple medications.
[15] Exhibit 1, T Documents, T4, page 52, Medical Certificate of Dr Smith dated 25 January 2003.
In September 2003 Dr John Shilton, General Practitioner, reported that Mr Tongue’s:
(a)hypertrophic cardiomyopathy was diagnosed in February 2007 and that this condition was expected to impact on Mr Tongue’s ability to function for more than 24 months and was likely to deteriorate within the next two years;[16] and
(b)atrial fibrillation was expected to impact on Mr Tongue’s ability to function for more than 24 months and that the effect of the condition on Mr Tongue’s ability to function with the next two years was uncertain.[17]
[16] Exhibit 1, T Documents, T5, pages 54 – 55, Medical Report of Dr Shilton dated 17 September 2003.
[17] Exhibit 1, T Documents, T5, pages 56 – 57, Medical Report of Dr Shilton dated 17 September 2003.
In March 2013 Dr James Powers reported that:[18]
(a)Mr Tongue was taking medications for his cardiomyopathy;
(b)seven cardioversions had previously failed;
(c)Mr Tongue has fatigue, shortness of breath and a limited physical ability due to his heart failure;
(d)current impact of the condition was expected to persist for more than five years;
(e)the effect of the condition on Mr Tongue’s ability to function was expected to deteriorate within the next two years; and
(f)Mr Tongue might need cardio surgery.
[18] Exhibit 1, T Documents, T9, pages 91 – 93, Medical report of Dr Powers dated 7 March 2013.
Mr Tongue was reviewed by Dr Greg Aroney, Cardiologist, in October 2014. Dr Aroney reported that Mr Tongue remained unchanged, that he had not altered his treatment and, if anything, Mr Tongue was a little more active and was able to walk more than 50 metres.[19]
[19] Exhibit 1, T Documents, T11, page 106, Report of Dr Aroney dated 20 October 2014.
Mr Tongue had an echocardiogram on 14 January 2016 which found predominantly septal hypertrophic cardiomyopathy.[20]
[20] Exhibit 1, T Documents, T14, pages 110 – 111, Medical report of Dr Naveen Dwivedi, Cardiologist, dated 14 January 2016.
In April 2016 Dr Saman Perera, General Practitioner, reported that:[21]
(a)Mr Tongue was having regular cardiology review and taking medications;
(b)Mr Tongue was still experiencing shortness of breath and tiredness as a result of his cardiomyopathy;
(c)the condition was diagnosed, treated and stabilised;
(d)the current impact of the condition was expected to persist for more than five years; and
(e)the effect of the condition on Mr Tongue’s ability to function was expected to remain unchanged within the next two years.
[21] Exhibit 1, T Documents, T17, pages 120 – 122, Medical report for the SP review for portability by Dr Perera dated 15 April 2016.
Dr Perera reported on 11 July 2016, that Mr Tongue’s cardiomyopathy was limiting Mr Tongue’s walking abilities and that he could walk 50 metres and then needed to stop because of breathing difficulties.[22]
[22] Exhibit 1, T Documents, T25, page 157, Report of Dr Perera dated 11 July 2016.
In November 2016, Dr Aroney reported that Mr Tongue:[23]
(a)remained “essentially asymptomatic with respect to his hypertrophic cardiomyopathy”, that he had left his medications unchanged and that he would like to hear if Mr Tongue develops unexplained shortness of breath; and
(b)told him that “on a good day when his peripheral neuropathy is not troubling him he can walk pretty much unrestricted”.
[23] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 18 September 2017, Attachment A, Report of Dr Aroney dated 24 November 2016.
In December 2016 Dr Perera reported that Mr Tongue’s cardiomyopathy condition was permanent and was causing Mr Tongue shortness of breath, tiredness and that he was currently taking medication.[24]
[24] Exhibit 1, T Documents, T36, page 191, Medical certificate of Dr Perera dated 6 December 2016.
Peripheral Neuropathy
In September 2015 Dr Ventzi Bonev, Neurologist, reported that:[25]
(c)Mr Tongue had peripheral neuropathy of axonal type;
(d)Mr Tongue should be screened for metabolic causes of axonal peripheral neuropathy; and
(e)he recommended the use of a tricyclic antidepressant at night, and, if that was not effective, to trial pregabalin (Lyrica).
[25] Exhibit 1, T Documents, T13 and T15, pages 109, 115-116, Report of Dr Bonev dated 4 September 2015.
In April 2016 Dr Perera reported that:[26]
(a)Mr Tongue was taking pain medication and that the planned treatment was to continue conservative management;
(b)Mr Tongue experienced peripheral numbness and an unsteady gait;
(c)his symptoms have been worsening and it was affecting his movement and walking;
(d)the current impact of the condition on Mr Tongue’s ability to function was expected to persist for more than five years; and
(e)within the next two years the effect of this condition on Mr Tongue’s ability to function was expected to deteriorate.
[26] Exhibit 1, T Documents, T17, pages 123-125, Medical Report for DSP Review for Portability of Dr Perera dated 15 April 2016.
Dr Perera reported on 7 June 2016 that:[27]
(a)Mr Tongue’s peripheral neuropathy had a gradual onset;
(b)he had advised Mr Tongue to cut down on the alcohol as it can worsen the problem;
(c)he had referred Mr Tongue to a podiatrist in January 2016; and
(d)the peripheral neuropathy affected Mr Tongue’s walking.
[27] Exhibit 1, T Documents, T23, page 147, Report of Dr Perera dated 7 June 2016.
Dr Perera reported on 11 July 2016, that Mr Tongue’s peripheral neuropathy was causing Mr Tongue walking difficulties and that he was at risk of falling.[28]
[28] Exhibit 1, T Documents, T25, page 157, Report of Dr Perera dated 11 July 2016.
In December 2016 Dr Perera reported that Mr Tongue’s neuropathy condition was permanent and was causing Mr Tongue leg pain and imbalance and that he was currently taking medication.[29]
[29] Exhibit 1, T Documents, T36, page 191, Medical certificate of Dr Parreira dated 6 December 2016.
Hernia
In July 2015 Dr Ben Dodd, Senior Medical Officer General Surgery at Redland Hospital, reported that:[30]
(a)three or four years ago Mr Tongue had an emergency laparotomy which Mr Tongue thinks was for diverticulitis;
(b)Mr Tongue told Dr Dodd that his last colonoscopy, in or around 2010, was unremarkable;
(c)Mr Tongue said his incisional hernia did not cause him any particular trouble and that he had no pain, no nausea, no vomiting and no bowel symptoms;
(d)he explained to Mr Tongue the pros and cons of proceeding with an operation to repair the incisional hernia, particularly in relation to the magnitude of the repair which would involve component separation along with his high risk of general anaesthesia due to his cardiomyopathy and ongoing alcohol abuse and very high risk that the hernia would come back; and
(e)given the asymptomatic nature of the hernia, no operation is warranted at the current point in time.
[30] Exhibit 1, T Documents, T12, page 108, Report of Dr Dodd dated 15 July 2015.
In April 2016 Dr Perera reported that Mr Tongue’s hernia condition was generally well managed and causing minimal or limited impact on Mr Tongue’s ability to function.[31] However, two months later, Dr Perera reported on 7 June 2016, that Mr Tongue’s large incisional abdominal hernia was causing him to be unable to lift weights and push and pull things hard.[32]
[31] Exhibit 1, T Documents, T17, page 126, Medical Report for DSP Review for Portability by Dr Perera dated 15 April 2016.
[32] Exhibit 1, T Documents, T23, page 147, Report of Dr Perera dated 7 June 2016.
Dr Perera reported on 7 June 2016 that Mr Tongue would be able to do sedentary work of three hours per day in a continuous shift but would be unable to walk or stand up for a longer period, or push or pull heavy things.[33]
[33] Exhibit 1, T Documents, T23, page 147, Report of Dr Perera dated 7 June 2016.
Gout
In March 2013 Dr James Powers reported that Mr Tongue had gout and that:[34]
(a)Mr Tongue has monthly flare ups which incapacitate him;
(b)he has pain and loss of joint function which can severely impact his ability to walk;
(c)the pain occurs in his fingers, knees, ankles and when he has pain he cannot use those joints;
(d)current impact of the condition was expected to persist for more than five years;
(e)the effect of the condition on Mr Tongue’s ability to function was expected to fluctuate within the next two years and deteriorate within the next five years; and
(f)rheumatology review was planned.
[34] Exhibit 1, T Documents, T9, pages 87 – 90, Medical report of Dr Powers dated 7 March 2013.
In April 2016 Dr Perera reported that Mr Tongue’s gout condition was generally well managed and causing minimal or limited impact on Mr Tongue’s ability to function.[35]
[35] Exhibit 1, T Documents, T17, page 126, Medical Report for DSP Review for Portability by Dr Perera dated 15 April 2016.
In December 2016 Dr Perera reported that Mr Tongue is gout condition was permanent.[36]
[36] Exhibit 1, T Documents, T36, page 191, Medical certificate of Dr Parreira dated 6 December 2016.
Glaucoma/cataracts
In March 2013 Dr James Powers reported that Mr Tongue had glaucoma and that the condition was generally well managed and caused minimal or limited impact on Mr Tongue’s ability to function.[37]
[37] Exhibit 1, T Documents, T9, page 94, Medical report of Dr Powers dated 7 March 2013.
In January 2016 Mr Tongue had an eye examination and Mr John Da Rin, Optometrist, reported that Mr Tongue had:[38]
(a)advanced glaucoma and needed to be under the close care of an ophthalmologist; and
(b)developing bilateral cataracts which will need attention.
[38] Exhibit 1, T Documents, T15, page 114, Report of Mr Da Rin dated 20 January 2016.
Mr Tongue was placed on a waiting list at the Princess Alexandra Hospital Ophthalmology Clinic on 18 February 2016.[39]
[39] Exhibit 1, T Documents, T16, page 117, Letter from the Executive Director of Medical Services, PAH, to Dr Perera dated 18 February 2016.
In April 2016 Dr Perera reported that Mr Tongue’s cataracts and glaucoma was generally well managed and causing minimal or limited impact on Mr Tongue’s ability to function.[40]
[40] Exhibit 1, T Documents, T17, page 126, Medical Report for DSP Review for Portability by Dr Perera dated 15 April 2016.
Dr Perera reported on 7 June 2016 that Mr Tongue:[41]
(a)was still on the Ophthamology Clinic waiting list at Princess Alexandra; and
(b)told him he would talk to his ophthalmologists in Thailand when he goes there.
[41] Exhibit 1, T Documents, T23, page 147, Report of Dr Perera dated 7 June 2016.
Dr Perera reported on 11 July 2016, that Mr Tongue’s glaucoma and cataracts were under the care of a specialist and was waiting specialist review for cataract surgery.[42]
[42] Exhibit 1, T Documents, T25, page 157, Report of Dr Perera dated 11 July 2016.
Mr Tongue was reviewed by the Ophthalmology clinic to Princess Alexandra Hospital in September 2016 and was diagnosed with narrow angle glaucoma.[43]
[43] Exhibit 1, T Documents, T30, pages 175 – 182, Outpatient ophthalmology final report dated 19 September 2016.
Dr Perera confirmed in October 2016 that Mr Tongue had been diagnosed with narrow angle glaucoma and was currently under the care of an Ophthalmologist at Princess Alexander Hospital and that the condition was properly diagnosed, treated and stabilised.[44]
[44] Exhibit 1, T Documents, T33, page 187, Report of Dr Perera dated 28 October 2016.
In December 2016 Dr Perera reported that Mr Tongue’s cataracts were temporary and that he was awaiting surgery.[45]
[45] Exhibit 1, T Documents, T36, page 191, Medical certificate of Dr Parreira dated 6 December 2016.
Depression
In March 2013 Dr Powers reported that Mr Tongue had depression and that the condition was generally well managed and caused minimal or limited impact on Mr Tongue’s ability to function.[46]
[46] Exhibit 1, T Documents, T9, page 94, Medical report of Dr Powers dated 7 March 2013.
In December 2016 Dr Perera reported that Mr Tongue’s depression and anxiety condition was temporary.[47]
[47] Exhibit 1, T Documents, T36, page 191, Medical certificate of Dr Parreira dated 6 December 2016.
In August 2017 Dr Jagannathan Alagarsamy, Psychiatrist, reported that:[48]
(a)Mr Tongue has been suffering from chronic depression for nearly 15 years and that he has been on antidepressants which is been keeping him stable;
(b)Mr Tongue’s condition was stable and stationary;
(c)he will need to continue on medication; and
(d)Mr Tongue has complex medical problems which affects his psychological health.
[48] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions, Attachment A, Report of Dr Alagarsamy dated 21 August 2017.
Diverticular Disease
In March 2013 Dr James Powers reported that Mr Tongue had diverticular disease and that the condition was generally well managed and caused minimal or limited impact on Mr Tongue’s ability to function.[49]
[49] Exhibit 1, T Documents, T9, page 94, Medical report of Dr Powers dated 7 March 2013.

Mr Tongue confirmed at the hearing that this condition has been treated and was no longer a problem for him.
Conclusion on Impairment
The Secretary accepts that Mr Tongue suffers from impairments for the purposes of section 94(1)(a) at the Qualification Date.[50]
[50] See Exhibit 2, Secretary’s Statement of Facts and Contentions dated 18 September 2017, para 28.
Considering the medical evidence, I conclude that at the Qualification Date Mr Tongue suffered from a Cardiomyopathy/Atrial Fibrillation Impairment, Neuropathy Impairment, and Glaucoma/Cataract Impairment for the purposes of the Act and that the requirement in section 94(1)(a) of the Act has been met.
In relation to the hernia condition, the evidence indicates that this condition is having a minimal or limited impact on Mr Tongue’s ability to function. At the hearing Mr Tongue confirmed that his hernia condition was not causing him any trouble. Therefore, the Tribunal is unable to find that this condition is an Impairment as defined by the Act and further the condition would not attract any impairment rating as it is having no impact on Mr Tongue’s ability to function.
In relation to the gout condition, the medical evidence indicates that this condition is having a minimal or limited impact on Mr Tongue’s ability to function. Therefore, the Tribunal is unable to find that this condition is an Impairment as defined by the Act and further the condition would not attract any impairment rating as it is having no impact on Mr Tongue’s ability to function.
In relation to the depression/anxiety conditions, there is no evidence of a diagnosis made by a psychiatrist or clinical psychologist as at the Qualification Date. Table 5 of the Determination, which relates to mental health function, specifically provides that the diagnosis of a mental health condition must be made by an appropriately qualified medical practitioner (this includes a psychiatrist with evidence from a clinical psychologist, if the diagnosis has not been made by a psychiatrist). Without such a diagnosis no Impairment Rating can be assigned. The only evidence from a Psychiatrist is that of Dr Alagarsamy. Dr Alargarsamy’s report is 15 months after the Qualification Date and does not expressly say he is treating Mr Tongue or for how long he has been treating him. Dr Alagarsamy “confirm[s] that Mr Tongue has been suffering from chronic depression for nearly 15 years”. However, there is nothing to indicate that Dr Alagarsamy diagnosed Mr Tongue with this condition prior to the Qualification Date. There is also no explanation provided for how Dr Alagarsamy knows how long Mr Tongue has been suffering from this condition. In the circumstances the Tribunal finds that Mr Tongue’s mental health conditions are not fully diagnosed. Even if the Tribunal found that Mr Tongue’s depression was fully diagnosed, there is no evidence at the Qualification Date of whether the condition was fully stabilised or whether Mr Tongue was having any psychological counselling. Further, there is no corroborating evidence of how this condition was impacting Mr Tongue’s ability to function and, therefore, no impairment rating would be able to be assigned.
DOES MR TONGUE’S IMPAIRMENTS ATTRACT AN IMPAIRMENT RATING OF 20 OR MORE POINTS: SECTION 94(1)(B)?
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, ss 4(2) and 5(2)(a).
[52] Determination, ss 5(2)(b) and (c).
[53] Determination, s 5(2)(d).
I can only assign an Impairment Rating to an impairment if:[54]
(a)Mr Tongue’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).
Mr Tongue’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:
(iii)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
(iv)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 I must first consider Mr Tongue’s medical history, in relation to the condition causing the Impairments.[61]
[61] Determination, see s 6(2).
Are Mr Tongue’s Cardiomyopathy/Atrial Fibrillation Impairments Permanent?
A JCA, conducted face-to-face with Mr Tongue on 2 June 2016, concluded that Mr Tongue’s Cardiomyopathy Impairment was fully diagnosed, treated and stabilised.[62]
[62] Exhibit 1, T Documents, T24, pages 148 – 149, JCA Report dated 15 June 2016.
The medical evidence demonstrates that the impact of the condition on Mr Tongue’s ability to function is expected to persist for more than 5 years and is likely to deteriorate.
The Tribunal finds that Mr Tongue’s Cardiomyopathy Impairment was fully diagnosed, fully treated and fully stabilised as required by the Act. The Secretary accepts Mr Tongue’s Cardiomyopathy Impairment is permanent.[63]
[63] Exhibit 2, Secretary's Statement of Facts Issues and Contentions dated 18 September 2017, para 29.
Therefore, an Impairment Rating can be assigned for this condition.

Using the Impairment Tables
I have to assess the level of impact of Mr Tongue’s Cardiomyopathy Impairment against the descriptors[64] (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).[65]
[64] Determination, see ss 3 and 5(3).
[65] Determination, see ss 3 and 5(3).
Section 6 of the Impairment Tables sets out the rules governing the determination of an 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.[66]
[66] Determination, see s 6(1).
I am obliged by the Determination to take the following information into account in applying the Tables:[67]
(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.
[67] Determination, see s 7.
I must not take into account the following information in applying the Tables:[68]
(a)symptoms reported by Mr Tongue in relation to his 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 Mr Tongue’s local community.
[68] Determination, see s 8.
Which Tables are appropriate are determined by:[69]
(a)identifying the loss of function; then
(b)referring to the Table related to the function affected; then
(c)identifying the correct impairment rating.
[69] Determination, see s 10(1).
Where a single condition causes multiple impairments, each impairment should be assessed under the relevant Table.[70]
[70] Determination, see s 10(3).
If an impairment is considered as falling between two impairment ratings, the lower of the two ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[71]
[71] 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.[72]
[72] 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.[73]
[73] Determination, see s 11(5).
Evidence Identifying the Loss of Function at the Qualification Date
The JCA reported in June 2016 that Mr Tongue said:[74]
·he had travelled 10 times over the last five years to Thailand and the Philippines
·he had difficulty negotiating stairs
·he can use the ferry to commute to the mainland from Russell Island where he lives
·when he goes shopping he takes rests
[74] Exhibit 1, T Documents, T 24, pages 152-153, JCA report dated 15 June 2016.
In January 2003 Dr Smith reported that Mr Tongue’s Cardiomyopathy Impairment was causing Mr Tongue shortness of breath and weakness.[75]
[75] Exhibit 1, T Documents, T4, page 52, Medical Certificate of Dr Smith dated 25 January 2003.
In March 2013 Dr Powers reported that Mr Tongue had fatigue, shortness of breath and a limited physical ability due to his heart failure.[76]
[76] Exhibit 1, T Documents, T9, pages 91 – 93, Medical report of Dr Powers dated 7 March 2013.
Dr Aroney reported in October 2014 that Mr Tongue was a little more active and able to walk more than 50 meters.[77]
[77] Exhibit 1, T Documents, T 11, page 106, Report of Dr Aroney dated 20 October 2014.
In April 2016 Dr Perera reported that Mr Tongue was experiencing shortness of breath and tiredness as a result of his cardiomyopathy.[78]
[78] Exhibit 1, T Documents, T 17, pages 120 – 122, Medical report for DSP review for portability by Dr Perera dated 15 April 2016.
Dr Perera reported in July 2016, that Mr Tongue’s cardiomyopathy was limiting Mr Tongue’s walking abilities and that he could walk 50 metres and then needed to stop because of breathing difficulties.[79]
[79] Exhibit 1, T Documents, T 25, page 157, Report of Dr Perera dated 11 July 2016.
However, in November 2016 Dr Aroney reported that Mr Tongue remained “essentially asymptomatic with respect to his hypertrophic cardiomyopathy”, that he had left his medications unchanged and that he would like to hear it Mr Tongue develops unexplained shortness of breath.[80] Mr Tongue disputes Dr Aroney’s report. However, the Tribunal finds it extraordinary to think that Dr Aroney, a Cardiologist, would have reported Mr Tongue asymptomatic if it were not the case, or if that was not what Mr Tongue reported to him. Mr Tongue also told the Tribunal that Dr Aroney has told him that the other side of his heart is worsening now, however there is no corroborating evidence of this.
[80] Exhibit 2, Secretary’s Statement of Facts, Issues and Contentions dated 18 September 2017, Attachment A, Report of Dr Aroney dated 24 November 2016.
In December 2016 Dr Perera reported that Mr Tongue’s Cardiomyopathy Impairment was causing Mr Tongue shortness of breath and tiredness.[81]
[81] Exhibit 1, T Documents, T 36, page 191, Medical certificate of Dr Parreira dated 6 December 2016.
At the hearing, and in a written statement, Mr Tongue told the Tribunal that:[82]
·He can walk 50 metres and then has to stop as he is out of breath;
·His condition is not moderate;
·He has someone else do his shopping;
·His heart has improved but it has made no difference to the symptoms he experiences;
·He cannot walk far without becoming short of breath;
·He cannot doing anything requiring exertion;
·He uses ramps at his house because of the difficulty he has with stairs; and
·He can pull himself up and can walk up 10 stairs at a time before having to stop and rest.
[82] Exhibit 1, T Documents, T 26, page 159, Statement of Mr Tongue received 11 July 2016.
Mr Tongue also said he uses a wheelchair at the airport. However, there is no mention of Mr Tongue needing to use a wheelchair when travelling in any of the medical reports or the JCA report. Further, Mr Tongue made no mention of the need to do so before the SSCSD.
Mr Tongue also said his partner of 20 years helps around the house and with cooking, and does his shopping, but they are about to separate. However, there is no mention of Mr Tongue having a partner and no corroborating evidence the partner assists in his care.
Relevant Impairment Table and Impairment Rating
The relevant table is Table 1 of the Determination, which deals with functions requiring physical exertion and stamina. 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:
o    a report from the person’s treating doctor;
o    a 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);
o    a 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);
o    results of exercise, cardiac stress or treadmill testing.
The Secretary submits that an appropriate Impairment Rating for Mr Tongue’s Cardiomyopathy Impairment is 5 points.[83]
[83] See Exhibit 2, Secretary's Statement of Facts and Contentions dated 18 September 2017, para 31.
In order to assign an Impairment Rating of 5 points the evidence would need to show that there is a mild functional impact on activities involving physical exertion and stamina.
The Descriptors for an Impairment Rating of 5 points are:
There is a mild functional impact on activities requiring physical exertion or stamina.
(1) The person:
(a)experiences 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)is 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 Descriptors for an Impairment Rating of 10 points are:
There is a moderate functional impact on activities requiring physical exertion or stamina.
(1)The person:
(a)experiences frequent symptoms (e.g. shortness of breath, fatigue, cardiac pain) when performing day to day activities around the home and community and, due to these symptoms, the person:
(i)is unable to walk (or mobilise in a wheelchair) far outside the home and needs to drive or get other transport to local shops or community facilities; or
(ii)has difficulty performing day to day household activities (e.g. changing the sheets on a bed or sweeping paths); and
(b) is able to:
(i)use public transport and walk (or mobilise in a wheelchair) around a shopping centre or supermarket; and
(ii)perform work-related tasks of a clerical, sedentary or stationary nature (that is, tasks not requiring a high level of physical exertion).
There is no medical or corroborating evidence that Mr Tongue cannot:
(a)walk (or mobilise in a wheelchair) around a shopping centre or supermarket without assistance; or
(b)walk (or mobilise in a wheelchair) from the carpark into a shopping centre or supermarket without assistance; or
(c)use public transport without assistance; or
(d)perform light day to day household activities (e.g. folding and putting away laundry or light gardening).
Further, the evidence of Dr Perera is that Mr Tongue could sustain work-related tasks of a clerical, sedentary or stationary nature for a continuous shift of at least 3 hours.
Therefore, Mr Tongue does not meet the criteria for a severe impairment rating.
Based on the corroborating evidence available the Tribunal finds that an Impairment Rating of 5 points is appropriate for Mr Tongue’s Cardiomyopathy Impairment under Table 1.
Is Mr Tongue’s Peripheral Neuropathy Impairment Permanent?
The Secretary submits that Mr Tongue’s Peripheral Neuropathy Impairment was not fully diagnosed and fully treated at the Qualification Date.
The Tribunal finds that at the Qualification Date Mr Tongue was diagnosed by Dr Bonev with peripheral neuropathy of axonal type. However, the Tribunal finds that this Impairment was not fully treated because Dr Bonev had not yet determined the cause of the impairment, which may of course be required in order to establish how to treat the condition, Further, Mr Tongue had not had the recommended screening tests, or consultation with a podiatrist. Mr Tongue told the Tribunal that Dr Bonev told him there was nothing that could be done. However, that is not reflected in Dr Bonev’s report.
In the circumstances the Tribunal finds that Mr Tongue’s Peripheral Neuropathy Impairment was not fully treated at the Qualification Date. Therefore, no Impairment Rating can be assigned.
Are Mr Tongue’s Glaucoma/Cataract Impairments Permanent?

The medical evidence supports a finding that Mr Tongue’s Glaucoma and Cataract Impairments were fully diagnosed at the Qualification Date. The issue is whether they were fully treated and fully stabilised.
Mr Tongue confirmed at the hearing that he is still waiting to have cataract surgery for one of his eyes and that this condition has not been fully treated as yet.
In terms of the glaucoma, it is unclear from the corroborating medical evidence what treatment has been recommended and if Mr Tongue had had reasonable treatment at the Qualification Date.
Mr Tongue says his glaucoma is treated with special eye-drops and that other than that the surgeon can perform a procedure, when he has his cataract surgery, to relieve the pressure behind the eye. As there is no corroborating evidence of treatment the Tribunal is unable to find that the Glaucoma Impairment has been fully treated. Even if it accepted that Mr Tongue has had all reasonable treatment for the condition, there is no corroborating evidence of the impact of this condition on Mr Tongue’s ability to function.
WERE MR TONGUE’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.
I have found that the total Impairment Rating for Mr Tongue’s Impairment was 5 points. Therefore, Mr Tongue did not satisfy section 94(1)(b) of the Act at the Qualification Date.
DID MR TONGUE HAVE A CONTINUING INABILITY TO WORK: S 94(1)(C)(I)?
The Tribunal as concluded that Mr Tongue’s Impairment did not attract an impairment rating of 20 points or more under the Impairment Tables at the Qualification Date, therefore it is unnecessary for me to consider whether Mr Tongue had a “continuing inability to work” (as defined in s 94(2) of the Act) for the purposes of section 94(1)(c) of the Act at that time.
APPLICATION FOR UNLIMITED PORTABILITY
At the hearing Mr Tongue said he no longer wished to travel overseas for an unlimited period and withdrew his application for unlimited portability of his DSP.
For completeness, the Tribunal notes that in order to be eligible for an unlimited portability period Mr Tongue must have, among other things, a severe impairment.[84] A severe impairment is an Impairment that attracts 20 points under one single Impairment Table (section 94(3B)).
[84] Section 1217 provides for different maximum portability periods in certain circumstances. Mr Knight’s maximum portability period may be extended under section 1218AAA(1) for an unlimited period if, among other things, he has a severe impairment (see section 94(3B) of the Act.
Mr Tongue would not qualify for unlimited portability because he is not eligible for the DSP and none of his Impairments are severe.
DECISION
Mr Tongue’s claim fails. His Impairment did not attract an impairment rating of 20 points or more under the Impairment Tables at the Qualification Date and as a result he did not qualify for DSP at the date of cancellation.
The decision under review is affirmed.

I certify that the preceding 110 (one hundred and ten) paragraphs are a true copy of the reasons for the decision herein of Member D K Grigg

.....................................................................
Associate
Dated: 20 November 2017

Date of hearing:

8 November 2017

Applicant:

By Phone

Solicitors for the Respondent:

Jasmine Forsyth,
Department of Human Services

[2017] AATA 2584

20 November 2017

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Date of hearing:	8 November 2017
Applicant:	By Phone
Solicitors for the Respondent:	Jasmine Forsyth, Department of Human Services