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

Townsend and Secretary, Department of Social Services (Social services second review) [2019] AATA 2449 (8 August 2019)
Division:GENERAL DIVISION
File Number:2018/1536
Re:Wayne Townsend
APPLICANT

AndSecretary, Department of Social Services
RESPONDENT

DECISION
Tribunal:Member D Mitchell
Date:8 August 2019
Place:Brisbane

The decision under review is affirmed.
..........................[SGN].................................
Member D Mitchell
Catchwords
SOCIAL SECURITY – disability support pension cancellation – DSP – whether medical conditions fully diagnosed, fully treated and fully stabilised – whether 20 points or more under the impairment tables at the date of cancellation – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Social Security Act 1991 (Cth)
Social Security (Administration) Act 1999 (Cth)
Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (Cth)
Cases
Shi v Migration Agents Registration Authority [2008] HCA 31
REASONS FOR DECISION
Member D Mitchell
8 August 2019
INTRODUCTION

Mr Wayne Townsend (the Applicant) has been granted the Disability Support Pension (DSP) on a number of occasions since 2003,[1] and most recently with effect from 18 October 2011.[2]
[1] Transcript, page 8.
[2] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 2, paragraph 3.
The Applicant had made a number of unsuccessful applications for unlimited portability of his DSP seeking to allow him to live in the Philippines and continue to receive the DSP.[3]
[3] Transcript, pages 9-10 and 20.
On 27 January 2017, the Applicant sought a determination for unlimited portability of his DSP and as part of the assessment process the Respondent reviewed his eligibility for DSP.[4]
[4] Exhibit 1, T Documents, T25, pages 209-210, Centrelink Notice: Maximum Portability Period.
On 26 July 2017, the Respondent decided that the Applicant was not qualified for DSP and cancelled the payment, on the basis that the Applicant had been assessed as not having an impairment rating of 20 points or more under the Impairment Tables.[5]
[5] Exhibit 1, T Documents, T29, pages 232-233, Centrelink Notice: DSP Eligibility.
This decision was reviewed by an Authorised Review Officer (ARO) and affirmed on 8 September 2017.[6]
[6] Exhibit 1, T Documents, T32, pages 242-248, Authorised Review Officer Decision and Notes.
The Applicant sought a first-tier review of that decision by the Social Services and Child Support Division of this Tribunal (SSCSD), which affirmed the decision of the ARO on

6 February 2018.[7]
[7] Exhibit 1, T Documents, T2, pages 3-12, Decision of the SSCSD.
Following this, the Applicant sought a second-tier review of this matter by the General Division of this Tribunal, by way of an application dated 22 March 2018.[8]
[8] Exhibit 1, T Documents, T1, pages 1-2, Application for Review.
On 10 October 2018, a Hearing was held for this application. At the Hearing, the Applicant was self-represented and gave evidence by telephone.
On 11 July 2019, Executive Deputy President Dr P McDermott RFD reconstituted the Tribunal[9] so that the matter would be determined by Member Mitchell. On 17 July 2019, a Directions Hearing was held. The Applicant was not present at the Directions Hearing however later emailed the Tribunal. The parties did not wish to make further submissions.
[9] Section 19D of the Administrative Appeals Tribunal Act 1975 (Cth).
The issue to be determined by the Tribunal is whether at the Date of Cancellation the Applicant met the DSP eligibility requirements.
BACKGROUND
In relation to the Applicant’s request for a determination for unlimited portability he submitted on 15 February 2017, a Medical Review Form completed by his General Practitioner, Dr Shanil Rupnarain.[10]
[10] Exhibit 1, T Documents, T26, pages 211-222, Medical Report DSP – Review Portability by Dr Shunil Rupnarain.
In the portion of the form completed by the Applicant he listed his disabilities, illnesses or injuries as: Polyarthritis to all joints, neck and lower back, diabetes, emphysemic changes to lungs and CVA x 2.[11] In the portion of the form completed by Dr Rupnarain he provided that the condition that had the most impact upon the Applicant was multilevel apophyseal joint degen broad based disc protrusion – facet joint OA.[12] Dr Rupnarain provided that the Applicant was also affected by a cervical spine degen[13] and NIDDM[14] (noninsulin-dependent diabetes mellitus).
[11]    Exhibit 1, T Documents, T26, page 211, Medical Report DSP – Review of Portability by Dr Shanil Rupnarain.
[12]    Exhibit 1, T Documents, T26, page 215, Medical Report DSP – Review of Portability by Dr Shanil Rupnarain.
[13]    Exhibit 1, T Documents, T26, page 218, Medical Report DSP – Review of Portability by Dr Shanil Rupnarain.
[14]    Exhibit 1, T Documents, T26, page 221, Medical Report DSP – Review of Portability by Dr Shanil Rupnarain.
The Applicant attended a face to face Job Capacity Assessment (JCA) on 24 April 2017 with an Assessor, whose professional discipline is listed as Rehabilitation Counsellor. On 20 July 2017, a JCA Report was produced with the Assessor finding that the Applicant had:[15]
·a musculo-skeletal disorder that was fully diagnosed, fully treated and fully stabilised and recommended an impairment rating of 10 points under Table 4 – Spinal Function;
·suffered a cerebral-vascular accident and had diabetes but found that the conditions did not cause impairment; and
·a baseline and future work capacity within two years with intervention of 8-14 and 15-22 hours per week respectively.[16]
[15] Exhibit 1, T Documents, T30, pages 234-240, Job Capacity Assessment Report.
[16] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 2-3, paragraph 6.
A decision was made on 26 July 2017, that the Applicant was not qualified for DSP and his payment was cancelled.[17]
[17] Exhibit 1, T Documents, T29, pages 232-233, Centrelink Notice: DSP Eligibility.
The Applicant sought review of the decision and on 8 September 2017, an ARO affirmed the decision to cancel the Applicant’s DSP. The ARO made the following findings of fact:[18]
[18] Exhibit 1, T Documents, T32, pages 243-244, Authorised Review Officer Decision and Notes.
·You have been receiving Disability Support Pension since 18 October 2011 for the following permanent conditions: cervical spine disorder and cerebral vascular accident.
·Following your medical review, a decision was made on 26 July 2017 that you were no longer qualified for Disability Support Pension.
·Your payment will be cancelled shortly as there has been a change in the assessment of your level of impairment.
·According to the latest medical evidence you have the following permanent conditions: cervical spine disorder, diabetes and cerebral vascular accident.
·Your conditions of osteoarthritis is not accepted as being permanent as there is insufficient medical evidence to support that this condition has been fully treated and stabilised.
·Your condition of emphysema is not accepted as being permanent as there is insufficient medical evidence to support that this condition has been fully diagnosed, treated and stabilised.
·Your total impairment rating is 10 points.
·You do not have a severe impairment.
·You do not have an impairment rating of 20 points or more.
·You do not have a continuing inability to work 15 hours per week or more because of your impairment.
The Applicant provided a statement on 13 September 2017[19] and on 6 October 2017 he sought review of the DSP refusal decision by the SSCSD.[20] On 6 February 2018, the SSCSD affirmed the decision under review and made the following findings:[21]
·The Applicant’s multi-level apophyseal joint degeneration and broad disc protrusion and facet joint osteoarthritis and cervical spine degeneration conditions were not fully diagnosed, fully treated and fully stabilised.
·The Applicant’s non-insulin dependent diabetes, cerebro-vascular accident, gout, emphysema conditions did not attract any impairment points.
·The Applicant’s osteoarthritis condition could not be considered fully diagnosed, fully treated and fully stabilised due to lack of evidence.
·The Applicant was not qualified for DSP on the date of cancellation.
[19]    Exhibit 1, T Documents, T33, pages 249-250, Handwritten statement provided by the Applicant.
[20]    Exhibit 1, T Documents, T34, pages 251-252, Referral to Social Services & Child Support Division.
[21]    Exhibit 1, T Documents, T2, pages 3-12, Decision of the SSCSD.
THE LAW
The relevant law in assessing a person’s ongoing qualification for DSP is found in the
Social Security Act 1991 (the Act), the Social Security (Administration) Act 1999 (the Administration Act) and the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination 2011 (the Determination).
Section 23 of the Act defines DSP as a social security payment.
Section 80 of the Administration Act provides that where the Respondent is satisfied that a social security payment is being paid to a person who is not qualified for the payment, the Secretary is to determine that the payment is to be cancelled or suspended.
Section 94 of the Act prescribes the criteria that must be met to qualify for the payment of DSP. In the present case, the predominant qualification questions before the Tribunal are:
(a)Does the Applicant have a physical, intellectual or psychiatric impairment;[22]
(b)Does the Applicant’s impairments attract 20 points or more under the Impairment Tables;[23] and
(c)Does the Applicant have a continuing inability to work?[24]
[22]    Section 94(1)(a) of the Act.
[23]    Section 94(1)(b) of the Act.
[24]    Section 94(1)(c) of the Act.
The Impairment Tables are set out in the Determination, which is made pursuant to section 26 of the Act and came into force on 1 January 2012.[25] Section 5(2) of the Determination sets out that the purpose and general design principles of the Impairment Tables is that the Tables:
(a)unless otherwise authorised by law, are only to be applied to assess whether a person satisfies the qualification requirement in paragraph 94(1)(b) of the Act; and
(b)are function based rather than diagnosis based; and
(c)describe functional activities, abilities, symptoms and limitations; and
(d)are designed to assign ratings to determine the level of functional impact of impairment and not to assess conditions.
[25] Section 27 of the Act requires that where a person is receiving DSP and the Respondent assesses the person’s qualification for DSP, the Respondent must apply the instrument in force under section 26 of the Act on the day the assessment notice was given. In this case the Determination was in place on 27 January 2017 and must be applied.
Under the Determination, the impairment of a person is limited to being assessed on the basis of what a person can, or could do, not on the basis of what the person chooses to do or what others do for them.[26] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[27] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[28]
[26]    Section 6(1) of the Determination.
[27]    Section 6(2) of the Determination.
[28]    Section 8(1) of the Determination.
Further, an impairment rating can only be assigned to an impairment 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 2 years.[29]
[29] Section 6(3) of the Determination.
In order for a person’s condition to be considered permanent the condition must:[30]
(a)have been fully diagnosed by an appropriately qualified medical practitioner; and
(b)have been fully treated; and
(c)have been fully stabilised; and
(d)be more likely than not, in light of available evidence, to persist for more than 2 years.
[30] Section 6(4) of the Determination.
To determine whether a condition has been fully diagnosed by an appropriately qualified medical practitioner, and whether it has been fully treated, it must be considered whether there is corroborating evidence of the condition; what treatment or rehabilitation has occurred in relation to the condition; and whether treatment is continuing or planned in the next 2 years.[31]
[31] Section 6(5) of the Determination.
A condition is considered to be fully stabilised if:[32]
(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.
[32] Section 6(6) of the Determination.
Reasonable treatment is treatment that: is available at a location reasonably accessible to the person; is at a reasonable cost; can reliably be expected to result in a substantial improvement in functional capacity; is regularly undertaken or performed; has a high success rate; and carries a low risk to the person.[33]
[33] Section 6(7) of the Determination.
The Determination sets out that, in selecting the applicable Impairment Table, it is necessary to identify the loss of function; refer to the Table related to the function affected; then identify the correct impairment rating.[34] In assessing impairments where a single condition causes multiple impairments each impairment should be assessed under the relevant Table and where more than one Table is used to assess multiple impairments resulting from the single condition, impairment ratings for the same impairment must not be assigned under more than one Table.[35] Where multiple conditions cause a common or combined impairment, a single rating should be assigned in relation to that common or combined impairment under a single Table.[36]
[34]    Section 10 of the Determination.
[35]    Sections 10(3) and (4) of the Determination.
[36]    Sections 10(5) and (6) of the Determination.
An impairment rating can only be assigned in accordance with the rating points in each Impairment Table; cannot be assigned between consecutive impairment ratings; if an impairment is considered as falling between 2 impairment ratings, the lower of the 2 ratings is to be assigned and the higher rating must not be assigned unless all the descriptors for that level of impairment are satisfied.[37]
[37] Section 11(1) of the Determination.
In order to have a continuing inability to work which is required to satisfy section 94(1)(c) of the Act a person must meet the criteria of section 94(2), which when a person’s qualification for DSP is being reviewed[38] requires that a person must:
(a)be unable to work for at least 15 hours per week independently of a program of support; and
(b)be unable to participate in a training activity during the next 2 years or if the impairment does not prevent the person from undertaking a training activity – such activity is unlikely (because of the impairment) to enable the person to do any work independently of a program of support within the next 2 years.
[38] Section 94(3A) of the Act excludes the Program of Support requirements.
A person’s impairment is considered to be a severe impairment if the person’s impairment is of 20 points or more under the Impairment Tables, of which 20 points or more are under a single Impairment Table.[39]
[39] Section 94(3B) of the Act.
Section 1218AA(1) of the Act sets out that the Respondent may make a determination that allows unlimited portability of a person’s DSP if all of the following circumstances exist, the:
(a) person is receiving DSP; and
(b) Respondent is satisfied that the person’s impairment is a severe impairment (within the meaning of section 94(3B)); and
(c) Respondent is satisfied that the person will have that severe impairment for at least the next 5 years; and
(d) Respondent is satisfied that, if the person were in Australia, the severe impairment would present the person from performing any work independently of a program of support (within the meaning of section 94(4)) within the next 5 year.
RELEVANT PERIOD
The relevant period in this matter is the day on which the Applicant’s DSP was cancelled, being 26 July 2017 (Date of Cancellation).[40] The Tribunal is therefore limited to considering evidence as far as it relates to the Applicant’s medical conditions and functional impairments as they were at the Date of Cancellation.
[40] As per Shi v Migration Agents Registration Authority [2008] HCA 31, [144]-[145].
ISSUES
Based on the evidence before the Tribunal it is clear that the Applicant had impairments at the Date of Cancellation and therefore has met the requirements of section 94(1)(a) of the Act. This point is not in contention.[41] The Respondent considers the Applicant’s impairments included: multi-level apophyseal joint degeneration and broad disc protrusion and facet joint osteoarthritis (the lumbar spine condition),[42] cervical spine degeneration (the cervical spine condition),[43] non-insulin dependent diabetes mellitus, cerebro-vascular accident, gout, emphysema and osteoarthritis.[44]
[41]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 5, paragraph 28.
[42]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 5-7, paragraphs 31-40.
[43]    Exhibit 2, Secretary’s Statement of Facts & Contentions, pages7-8, paragraphs 41-44.
[44]    Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 45.
The remaining issues for the Tribunal to consider are:
(a)Whether, at the Date of Cancellation, the Applicant’s impairments attracted 20 points or more under the Impairment Tables; and
(b)If so, did the Applicant have a continuing inability to work; and
(c)If so, does the Applicant meet the requirements for unlimited portability of the DSP?
CONSIDERATION
Did the Applicant’s impairments attract 20 points or more under the Impairment Tables – section 94(1)(b) of the Act?
The Tribunal has before it in this matter:
·Exhibit 1 – section 37 T Documents (pages 1-286)
·Exhibit 2 – Secretary’s Statement of Facts & Contentions dated 24 September 2018, and corresponding attachments
·Exhibit 3 – Documents received by the Tribunal from the Applicant on 23 August 2018, which include:
·         NDIS – Access Request Form – dated 28 July 2018
·         Questions for your doctor questionnaire dated 28 July 2018 completed by Dr Shanil Rupnarain and Mr Graham Key
·         Gold Coast University Hospital Summary dated 6 November 2013
·         CT Scan Report dated 5 January 2017
·Transcript of Proceedings – Hearing by telephone conducted on   10 October 2018
The transcript of the Hearing shows that the Applicant despite some technical issues with the telephone dropping out was open in providing his evidence to the Tribunal and responses to questions asked by both the Tribunal and the Respondent. The Applicant expressed that he believes that his DSP has been cancelled because he kept applying for portability and that there was good reason for him to do so. The Applicant told the Tribunal:[45]
“I would love to have my wife and kids over here but financially, that’s not viable, so ideally, the next best thing would be for me to go over there. So, I kept applying and all of a sudden, they said, “Well, you don’t qualify for the DSP anymore” and I think that’s properly the only reason.
….
So, no, I haven’t got a lot to say, but I am a great believer [sic] in fairness and I don’t really think this is fair.”
[45] Transcript, page 10.

At Hearing, the Applicant told the Tribunal:
·That he had actually been on the DSP since 2003, not since 2011.[46]
·He was in the Philippines in 2008 when he had a stroke and it was two years before he could get back home and he reapplied and was put back on DSP in 2011.[47]
·His neck and lower back conditions are degenerative, so every year it is going to get a little bit worse.[48]
·He has been discharged from neurology as they said they could not do anything for him because there were far too many vertebrae involved.[49]
·He has been discharged from physiotherapy as they said they could not heal him.[50]
·He has been discharged from rheumatology.[51]
·He says that his spine conditions are fully diagnosed, fully treated and he does not know about fully stabilised, but it is not going to get any better.[52]
·His spine conditions are very painful, so he usually takes some painkillers. They restrict him so that it is very difficult to turn his head at all, he had a little bit of forward/backward movement, not very much, but hardly any side to side movement at all. His lower back was not a real problem until 3 or 4 years ago when it became worse very suddenly. It seems to be degenerating all of the time so he can no longer sit down for any length of time (being more than 10 minutes) and if he stands up he has to sit down again or lie down again for 10 or 15 minutes. He cannot lift his arms above his head because of his neck and it is just a very, very painful condition. He can walk for 7 or 8 minutes but then he becomes a bit too sore and he has to rest somewhere, preferably lying down, but if he can sit down for 5 minutes, he can then sort of get back to where he came from.[53]
·He does not have a walking stick or a walking frame, but is told that he will need a wheelchair shortly. He does not know how that will work as he cannot sit for long periods.[54]
·He does not have a car and has not driven since 2008 because he cannot turn his head so driving is too dangerous.[55]
[46]    Transcript, page 8.
[47]    Transcript, page 9.
[48]    Transcript, page 9.
[49]    Transcript, page 9.
[50]    Transcript, page 9.
[51]    Transcript, page 9.
[52]    Transcript page 9.
[53]    Transcript, pages 10-11.
[54]    Transcript, page 11.
[55]    Transcript, page 11.
On cross-examination, the Applicant told the Tribunal:
·Basically, the treatment he has had for his lower back condition is painkillers.[56]
[56]    Transcript, page 11.
·His treatment for his neck condition is down to painkillers as well. He has been to neurosurgery people and they cannot help, he has been to the people at rheumatology and they cannot help and physiotherapy cannot help him either, so he is left with painkillers.[57]
[57]    Transcript, page 11.
·He was discharged in 2011 or 2012 from all three treatment providers.[58]
[58]    Transcript, page 12.
·He started seeing Graham Key, a physiotherapist after the SSCSD Hearing (conducted on 6 February 2018).[59]
[59]    Transcript, page 12.
·He takes the same pain medication to treat both his cervical spine and lumbar spine conditions.[60]
[60]    Transcript, page 12.
·In July 2017, he was basically taking Tramadol as his pain medication for his spine conditions to treat the inflammation.[61]
[61]    Transcript, page 12.
·Dr Rupnarain prescribed this medication and he saw her every three or six months for the prescriptions with a 200 mg dosage, but he gets the 100 mg dosage. He said this was ‘for the simple reason that when I’m in the Philippines, you can just about buy a suitcase full for 10 pesos. That’s what I do.’[62]
[62]    Transcript, page 13.
·The recommended maximum dosage of Tramadol is 400 or 500 mg per day, but he exceeds that most of the time and that is to the ‘chagrin of the rheumatologist’.[63]
[63]    Transcript, page 13.
·He has the 100 mg tablets of Tramadol at the moment and he has been known to take 20 of those, but that is not every day, that is sort of on bad days.[64]
[64]    Transcript, page 13.
·On an average day, he believes he takes 5 tablets but it varies and sometimes 5 sometimes 8.[65]
[65] Transcript, page 14.
·That Dr Rupnarain is aware he takes this amount of Tramadol and that it will not do him any harm, he thinks it does him some good.[66]
[66] Transcript, page 14.
·He also got scripts from Dr Rupnarain for Indocid capsules (which were changed to Celebrex) which were 50 mg tablets and he took 4 tablets a day. He said he got those scripts filled and confirmed when taken to the relevant documents by the Respondent that the last time he filled a script for Indomethacin was on                   5 September 2016, which provided him with 100 tablets and if he was taking 4 tablets a day would have lasted for 25 days. When taken to a patient medication sheet that Dr Rupnarain printed out on 15 February 2017 he accepted that Dr Rupnarain’s expectation was that he was taking Indocid capsules three times a day and at that stage he may have been but the doctor told him not to take Indomethacin and Celebrex together.[67]
·When asked if he accepted that there was not reference to Celebrex on the patient medications sheet he said there should be because he has been prescribed it many times. He said he filled those prescriptions under the pharmaceutical benefits scheme.[68]
·Dr Rupnarain had prescribed Endep and morphine but they were not suitable.[69] When referred to Dr Rupnarain saying that his current pain medication was Tramol, which is a brand name for Tamadol, Endep and Indomethacin, he accepted that but said Endep was discontinued because it made him sick. He could not remember when he tried it.[70]
·When asked whether he had reviewed the PBS patient summary record he said he had not. It was put to him that there was no evidence that he had filled any prescription for Endep, which is known under the PBS as Amitriptyline and he said that is right, he took some and it did not agree with him so he did not take it anymore and he would suggest that was under Dr Rupnarain’s recommendation.[71]
·A friend took him to the JCA on 24 April 2017.[72]
·When put to him that in July 2017, Dr Rupnarain considered that he was able to perform the general activities of daily living he said that the doctor had never really asked him about his daily living habits and still has not.[73]
·He travels to the Philippines and he last came back in July 2018 after being away for 3 ½ weeks. Prior to that it was almost 2 years since he had been overseas. A friend drives him to the airport. He flies from the Gold Coast with Air Asia, in economy and there is a stopover in Kuala Lumpur. The flight is about 7 ½ to 8 hours to Kuala Lumpur and another 3 ½ to 4 hours to Manila. He checks in his own luggage. He takes a small carry-on bag, like a ‘briefcase thing’ onto the plane with him and keeps it on the floor between his legs and is able to pick it up when he needs it. He can stay seated for take-off and landing. He stands about every 10 minutes during the flight.[74]
·He confirmed he told the JCA Assessor on 24 April 2017 that he could sit for 30 minutes and stand for 15 minutes but if that is the case he would have lots of Tramadol in him. In April 2017, he could walk for 10 minutes.[75]
·He has a friend who was getting his groceries in April 2017 and this has been ongoing since about 2010. He basically gets the same things all the time so his friend knows what to get.[76]
·If one of his friends cannot drive him to appointments he catches public transport.[77]
[67] Transcript, pages 14-15.
[68] Transcript, page 15.
[69] Transcript, page 15.
[70] Transcript, page 16.
[71] Transcript, page 16.
[72] Transcript, page 16.
[73]    Transcript, page 17.
[74]    Transcript, pages 17-19.
[75]    Transcript, page 19.
[76]    Transcript, pages 19-20.
[77]    Transcript, page 20.
The present issue for the Tribunal is whether, at the Date of Cancellation, the Applicant’s conditions can, for the purposes of section 94(1)(b) of the Act, attracts 20 points or more under the Impairment Tables. A condition can only be assigned an impairment rating under the Impairment Tables if the condition that is causing the impairment is considered permanent.[78] As such, the condition must be considered to be fully diagnosed, fully treated and fully stabilised during the Relevant Period and be more likely than not to persist for more than 2 years.[79] The Impairment Tables may only be applied to a person’s impairment after the person’s medical history, in relation to the condition causing the impairment, has been considered.[80] Self-reported symptoms in relation to the person’s condition can only be taken into account where there is corroborating evidence.[81]
[78]    Section 6(3)(a) of the Determination.
[79]    Section 6(4) of the Determination.
[80]    Section 6(2) of the Determination.
[81]    Section 8(1) of the Determination.
Spine Conditions
The Respondent accepts that the Applicant’s lumbar spine condition and cervical spine conditions were both fully diagnosed at the Date of Cancellation,[82] relying on the CT reports from 2010[83] and 2017.[84]
[82]    Transcript, page 5.
[83]    Exhibit 1, T Documents, T15 page 142, Iris Imaging Result: CT Cervical Spine – dated 6 December 2010.
[84]    Exhibit 3, CT Scan Lumbar Spine – dated 6 November 2013.
The Respondent contends that neither the Applicant’s lumbar spine or cervical spine conditions are fully treated and fully stabilised on the basis that the Applicant’s pharmacological treatment regime is inadequate and not in line with treatment recommendations.[85]
[85] Transcript, page 5.
It is noted by the Respondent, and confirmed upon the Tribunal’s review, that the majority of the medical evidence before the Tribunal in relation to the Applicant’s spine conditions significantly pre-dates the cancellation decision. The most recent evidence was provided by the Applicant’s treating General Practitioner, Dr Rupnarain in connection with the review and cancellation decision.[86]
[86] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 32.
The Respondent summarised the evidence of Dr Rupnarain in their Statement of Facts and Contentions as follows:[87]
33. In a report dated 15 February 2017 Dr Rupnarain reported that the Applicant’s lumbar spine condition was a condition with the most impact. The doctor listed the current treatment as “physiotherapy, pain med. Trama/endep/indo-metacin/seen by neuro-surg .. GCUH” (T26, 215). Dr Rupnarain reported the Applicant has been referred to neurosurgery and the Gold Coast University Hospital (T26, 216). The doctor reported the current impact on the Applicant to be causing pain on movement, decreased mobility and that activities of daily living were ok. The doctor expressed the view that the current impact of this condition on the Applicant’s ability to function was expected to persist for more than five years. The doctor indicated that the effect of the condition on the Applicant’s impairment in the next two and five years was expected to deteriorate (T26, 217).
34. On 6 July 2017, additional evidence was sought from Dr Rupnarain by telephone and recorded in the Additional Medical Evidence for Disability Support Pension Record (Attachment A). In the course of that conversation, Dr Rupnarain confirmed the diagnosis of the lumbar spine condition. The doctor noted that the age related lumbar spine degeneration is in keeping with the Applicant’s age and would not prevent him from performing domestic tasks such as light cooking, cleaning and grocery shopping Dr Rupnarain told the departmental officer that GP review and medication was the appropriate treatment. In regards to functional impact the doctor noted that the Applicant reported to have travelled multiple times to the Philippines and that this would indicate an 8 hour seating tolerance. The doctor reported that the level of functional impact associated with the Applicant’s lumbar spine condition was moderate and definitely not severe. The doctor did not concur with the Applicant’s reporting of being housebound or bed ridden due to the symptoms (Attachment A).
……
42. In his written report dated 15 February 2017, Dr Rupnarain [sic] referred to the multi-level spinal degeneration that impacted the cervical spine but did not otherwise differentiate the nature or extent of the cervical (as opposed to lumbar) spine degeneration (T26, 218). On 6 July 2017, in the additional evidence provided by Dr Rupnarain, the doctor reported that there is no known cause for the reported cervical spine pain and no evidence of injury (Attachment A).
[87] Exhibit 2, Secretary’s Statement of Facts & Contentions, pages 6-7, paragraphs 33-34 and 42.
The Respondent further noted that:[88]
There is also no evidence that the Applicant has been referred to a pain management clinic. The possibility of a referral to a pain management clinic was raised by the Applicant’s treating physiotherapist in 2011 (T15,144) after the Applicant elected not to undertake recommended physiotherapy and by Dr Gough in 2013 (Attachment C). Dr Gough was particularly concerned about the Applicant’s pain management regime (Attachment C).
[88] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 6, paragraph 36.
In closing submissions, the Respondent contended that the Applicant’s evidence at Hearing confirmed their contentions that his spine conditions were not fully treated and fully stabilised at the Date of Cancellation.[89] The Respondent contended that:[90]
·The Applicant has consistently been exceeding the maximum dosage for Tramadol which is inappropriate pharmacological treatment, which has been raised by various practitioners in the past, including Dr Gough in a report in 2013, and that report was also attached to Exhibit 3 which was submitted by the Applicant.
·The Applicant gave evidence about the amounts of medication he takes, however the evidence provided by the PBS patient summary is that the Applicant does not obtain the medication through the usual sources in Australia, through the pharmaceutical benefits scheme. The PBS summary shows that the last script filled by the Applicant was in 2013 for Tramadol. It may be that the Applicant obtains the medication from overseas, as was his evidence.
·In any event, the Respondent says that the conditions were not fully treated on the basis that, with a pain condition, the appropriate treatment would be either within the recommended dosage which Dr Rupnarain has recommended. Or if there are concerns, to be referred to a pain specialist or a pain management program or pain clinic, which there is reference to from Darryn Marks, the physiotherapist who was from the Gold Coast University Hospital who raised these concerns and made a referral back to Dr Rupnarain.
·Based on the PBS patient summary the Applicant had only filled a prescription for Indomethacin twice since 2013, once in 2015 and once on 5 September 2016. The Applicant gave evidence that a prescription would only have lasted him 25 days. The Applicant was not taking his recommended dose of Indomethacin for even a full month within the year leading up to the date of the cancellation. On that basis, the Respondent says the applicant is not fully treated, because he was not undertaking appropriate levels of pharmacological treatment.
[89] Transcript, page 21.
[90] Transcript, pages 21-22.
In completing a Questions for your doctor questionnaire dated 28 July 2018, Dr Rupnarain opined that it was unlikely that reasonable treatments for the Applicant’s cervical and lumbar spine would have at 26 July 2017 resulted in significant improvement in his level of impairment. Dr Rupnarain provided additional information to the effect: ‘Degen spinal disease affecting multiple levels. Difficult to find a position of comfort. PT assessed at neurosurgery Dept GCUH “Not for surgical interventions”’. Dr Rupnarain also advised that in relation to the most appropriate rating for the Applicant in relation to these conditions that he is not suitably qualified to make this assessment, it would be better for an OT to make this assessment.[91]
[91] Exhibit 3, Questions for your doctor questionnaire dated 28 July 2018.
The same questionnaire was also completed by Mr Graham Key, Physiotherapist, who provided more detailed opinion in relation to the appropriate impairment rating of the Applicant’s cervical and lumbar spine conditions.[92] The Applicant provided evidence that he only re-engaged with physiotherapy after his SSCSD Hearing after previously being discharged from the service in 2011 or 2012. Therefore, the Tribunal does not consider that Mr Key can reliably report on the Applicant’s conditions as at 26 July 2017, some 6 to 8 months prior to when the Applicant first re-engaged with physiotherapy.
[92] Exhibit 3, Questions for your doctor questionnaire dated 28 July 2018.
In relation to the Applicant having been previously found to be eligible for DSP on the basis of his functional impairments relating his cervical spine condition, I agree and accept the following submission made by the Respondent:[93]
With respect to the cervical spine condition, although we accept that there is earlier evidence from 2010 which supports a finding that the Applicant was unable to turn his head at that stage, we say that this Tribunal’s consideration is to occur from 26 July 2017. The Applicant has provided medical reports from his treating general practitioner in support of his application, and the fact that Dr Rupnarain, his treating general practitioner, has not mentioned or corroborated that he has difficulties with his neck, and only focused on the lumbar spine, we say that this Tribunal cannot be satisfied that an impairment rating under Table 4 – can be satisfied that the Applicant’s cervical spine condition does affect him to the extent that it did in 2010. Again, we rely on the introduction to Table 4, which says that the self-report of symptoms alone isn’t sufficient, and there must be corroborating evidence of that impairment.
[93] Transcript, page 22.
Based on the medical evidence and that provided by the Applicant at the Hearing, I find that the Applicant’s spine conditions were fully diagnosed however were not fully treated and fully stabilised at the Date of Cancellation. The Applicant was not appropriately engaging with an appropriate pharmacological regime and had not undertaken recommended medical treatment including physiotherapy and engagement with a pain specialist or pain clinic at the Date of Cancellation.
As I have found that the Applicant’s spine conditions were not fully treated and fully stabilised at the Date of Cancellation, the conditions are not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the conditions.
Even if I had of found that one or both of the Applicant’s spine conditions were fully diagnosed, fully treated and fully stabilised and could be assigned an impairment rating under Table 4 of the Impairment Tables, based on the medical evidence before the Tribunal the maximum impairment rating that could be assigned would be 10 points. Noting in particular that the various reports provided by Dr Rupnarain support at most a level of functional impact as being moderate, definitely not severe.
Other conditions
The Respondent contends that the Applicant’s non-insulin dependent diabetes mellitus, cerebro-vascular accident, gout, emphysema and osteoarthritis do not cause the Applicant impairment and do not attract an impairment rating under the Impairment Tables.[94]
[94] Exhibit 2, Secretary’s Statement of Facts & Contentions, page 8, paragraph 45.

In the JCA Report dated 20 July 2017, the Assessor noted that during their follow up call with Dr Rupnarian on 6 July 2017, it was reported that the Applicant’s non-insulin dependent diabetes mellitus (NIDDM) had no impact upon capacity for work and that it was previously reported that the Applicant’s cerebro-vascular accident CVA (stroke) occurred in 2006 and 2008 however he could not confirm exact details, nor past treatment, however could confirm that there is no evidence of any functional impact on work capacity associated with this condition at the current time or for the foreseeable future.[95]
[95] Exhibit 1, T Documents, T30, page 239, Job Capacity Assessment.
Reference is made by Dr Gough, in a report dated 12 November 2013 that the Applicant suffered from gout and he made recommendations for management.[96]
[96] Exhibit 2, Secretary’s Statement of Facts & Contentions, Attachment C.
The Applicant did not indicate at either the Hearing before this Tribunal or that conducted by the SSCSD on 6 February 2018 that his non-insulin dependent diabetes mellitus condition has any significant impact upon his activities.[97]
[97] Exhibit 1, T Documents, T2, page 9, paragraph 40, Decision of the SSCSD; and Transcript.
The Applicant told the SSCSD that there is minimal residual impact as a result of his cerebro-vascular accident CVA condition. He said the left upper limb (although with minimal impact) is affected more than the left lower limb. He said he is right-handed.[98]
[98] Exhibit 1, T Documents, T2, page 9, paragraph 43, Decision of the SSCSD.
The Applicant told the SSCSD that he has an episode of gout every two to three months. He said the ankles, feet and knees can be affected. He said he does not require preventative medication because of the infrequency of the episodes and because the episodes easily settle when he starts treatment early.[99]
[99] Exhibit 1, T Documents, T2, page 9, paragraph 46, Decision of the SSCSD.
There are a number of reports in the evidence before the Tribunal that makes reference to the Applicant’s non-insulin dependent diabetes mellitus, cerebrovascular accident, gout conditions and as a result, I find that these conditions were fully diagnosed, fully treated and fully stabilised at the Date of Cancellation and can therefore the functional impacts of these conditions can be considered in relation to the Impairment Tables.
Based on the evidence of the Applicant and in the absence of any substantive medical evidence in relation to the functional impact caused by his non-insulin dependent diabetes mellitus, cerebrovascular accident, gout conditions, I find that they do not cause any functional impairments to the Applicant and therefore can be assigned nil points under the Impairment Tables.
The Applicant has reported that he has emphysema at various JCA’s and this condition is mentioned by the ARO. There is no corroborating medical evidence before the Tribunal in relation to the Applicant’s emphysema diagnosis, treatment or functional impact.
The Applicant told the SSCSD that his emphysema condition was noted incidentally on an x-ray taken when he was in the Philippines. He said he uses an Asmol puffer a couple of times every day for the condition.[100]
[100] Exhibit 1, T Documents, T2, page 10, paragraph 49, Decision of the SSCSD.
Based on the lack of evidence before the Tribunal, I find that the Applicant’s emphysema condition was not fully diagnosed, fully treated and fully stabilised at the Date of Cancellation.
As I have found that the Applicant’s emphysema condition was not fully diagnosed, fully treated and fully stabilised at the Date of Cancellation, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
In a Centrelink Treating Doctors Report dated 24 February 2006, Dr Michael Wright, diagnosed the Applicant with severe osteoarthritis and gout with a history of worsening pains and swelling in hand and feet and the current symptoms were severe pain first thing in the morning, ongoing swelling through the day.[101] Dr Wright stated that future treatment would include further medication and specialist referral.[102]
[101] Exhibit 1, T Documents, T4, page 49, Treating Doctors report form by Dr Michael Wright, Evandale Medical
Centre.
[102] Exhibit 1, D Documents,T4, page 50, Treating Doctors report form by Dr Michael Wright, Evandale Medical
Centre.
In a report dated 12 November 2013, Dr Gough stated that the Applicant had osteoarthritis, but provided no other information in relation to the condition other than making an overall statement that the Applicant has generalised pain which was exacerbated in a way similar to fibromyalgia.[103]
[103] Exhibit 2, Secretary’s Statement of Facts & Contention, Attachment C.
There are a number of additional reports before the Tribunal that make reference to the Applicant’s osteoarthritis condition, with the recurrent theme showing that it was his cervical spine condition that was causing him the most functional impairment.
In completing a Questions for your doctor questionnaire dated 28 July 2018, Dr Rupnarain opined that it was unlikely that reasonable treatments for the Applicant’s osteoarthritis – knees, ankles and hands would have at 26 July 2017 resulted in significant improvement in his level of impairment. Dr Rupnarain also advised that in relation to most appropriate rating for the Applicant in relation to this condition that he is not suited/qualified to make this assessment.[104]
[104] Exhibit 3, Questions for your doctor questionnaire dated 28 July 2018.
The same questionnaire was also completed by Mr Graham Key, physiotherapist, who provided more detailed opinion in relation to the Applicant’s osteoarthritis condition.[105] The Applicant provided evidence that he only re-engaged with physiotherapy after his SSCSD hearing after previously being discharged from the service in 2011 or 2012. Therefore, the Tribunal does not consider that Mr Key can reliably report on the Applicant’s condition as at 26 July 2017, some 6 to 8 months prior to when the Applicant first reengaged with physiotherapy.
[105] Exhibit 3, Questions for your doctor questionnaire dated 28 July 2018.
The Applicant told the SSCSD that all his joints are affected by arthritis. He said his feet, knees, wrists, elbows and hands are affected. He said the joints are variably affected.[106]
[106] Exhibit 1, T Documents, T2, page 10, paragraph 52, Decision of SSCSD.
Based on the lack of evidence before the Tribunal in relation to treatment and specific functional impairments the Applicant’s osteoarthritis causes, I find that the Applicant’s emphysema condition was fully diagnosed, however was not fully treated and fully stabilised at the Date of Cancellation.
As I have found that the Applicant’s osteoarthritis condition was not fully treated and fully stabilised at the Date of Cancellation, the condition is not considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for the condition.
Continuing inability to work
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 94(1)(c) of the Act.
Permanent Portability
As I have found that the Applicant does not have a total of 20 impairment points, either on one table, or cumulatively across multiple tables, there is no need to consider whether the Applicant met the requirements of section 1218AAA of the Act.
CONCLUSION
I find that the Applicant had impairments for the purposes of section 94(1)(a) of the Act.
I find that the Applicant’s spine conditions were fully diagnosed however were not fully treated and fully stabilised at the Date of Cancellation and therefore could not be permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for these conditions.
I find that the Applicant’s non-insulin dependent diabetes mellitus, cerebrovascular accident, gout conditions were fully diagnosed, fully treated and fully stabilised at the Date of Cancellation. Accordingly, I find that the Applicant’s non-insulin dependent diabetes mellitus, cerebrovascular accident, gout conditions are assigned zero points under the Impairment Tables.
I find that the Applicant’s emphysema condition was not fully diagnosed, fully treated and fully stabilised at the Date of Cancellation, and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s osteoarthrosis condition was fully diagnosed, however was not fully treated and fully stabilised at the Date of Cancellation, and therefore could not be considered permanent for the purposes of applying the Impairment Tables and I am unable to assign impairment points for this condition.
I find that the Applicant’s impairments do not attract 20 points or more under the Impairment Tables.
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 Member D Mitchell

...................[SGN].........................
Associate
Dated: 08 August 2019

Date of hearing: 10 October 2018

Applicant: By Phone

Advocate for the Respondent:
Ms Jacky Vetter

Solicitors for the Respondent: Department of Human Services

[2019] AATA 2449

8 August 2019

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Judicial Review

Procedural Fairness

Standing

Statutory Construction

Date of hearing:	10 October 2018
Applicant:	By Phone
Advocate for the Respondent:	Ms Jacky Vetter
Solicitors for the Respondent:	Department of Human Services